Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31, 1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606 The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner: The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing. The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted. Respondent: (NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.) 23 and 24. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: E. D. Wiggins 4843 Campenella Drive Jacksonville, Florida 32209 Kathryn M. Lancaster, Esquire 501 First Avenue North Suite 626 St. Petersburg, Florida 33701 Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue to be resolved in this proceeding, as stipulated at the hearing, is whether the Petitioner has been subjected to discrimination on account of a handicap or disability.
Findings Of Fact The Petitioner at times pertinent hereto was an employee of North Florida Evaluation and Treatment Center in Gainesville, Florida. She began working for that entity in 1985. Her position was that of Unit Rehabilitation Treatment Specialist. This required her to work with residents of the treatment and evaluation center. Her duties involved such things as helping move residents, and carrying food trays up and down stairs to residents. Sometime in 1993, the Petitioner suffered a back injury, the result of which has caused her to have chronic, substantial pain in her back and leg. The injury apparently occurred in the line of duty on the job with the Respondent agency. The Petitioner missed some time from employment for these medical reasons and in December of 1993, was placed on light duty status at work due to the medical restriction recommended by her doctor. This light duty status involved such restrictions on her full employment activities as doing only light lifting and restricted use of stairs. Her light duty restrictions involved a great many of her "resident contact- type" activities of her job such as meal monitoring, delivery of meals, escorting residents, handling laundry, medication delivery and the like because of the restriction against use of the stairs, as well as heavy lifting. She was on this light- duty status for approximately three years when, in November 1996, a doctor told her, and she informed her employer, that she could no longer climb more than four flights of stairs per day. Since all treatment buildings at the facility where she worked had at least one flight of stairs, this severely restricted her ability to perform her daily job functions. Nevertheless, she was maintained on light duty status in order to accommodate her disability. In December 1996, her doctor further restricted her employment status to no climbing of stairs at all. At that time, the Respondent temporarily assigned her to duty in the pharmacy in order to accommodate her inability to climb stairs or lift significant weight, as well as because there was a staff vacancy in the pharmacy. In February 1997 that assignment to the pharmacy ended because the staffing need there had ended. A person qualified and experienced in the pharmacy duties involved was hired. The Respondent then attempted to find a suitable position to accommodate the Petitioner's disability within the department's district. The job search was unsuccessful. Since there was no permanent position available outside the treatment area where the Petitioner worked, which could accommodate her disability, the Respondent requested a new status report from her doctor. Consequently, on February 5, 1997, the Petitioner's doctor stated that she was able to climb one flight of stairs in an eight hour day. The Respondent, therefore, continued to employ her on light duty in accordance with this restriction to one flight of stairs climbed in an eight-hour day, during the Petitioner's regular shift. She was allowed to work in her normal building location during her regular shift with this restriction with the result that other employees had to assume the duty she would normally have in her position as a unit treatment and rehabilitation specialist, which involved carrying medications, food or other items, climbing stairs, as well as handling patients or residents. She worked on this regular shift with these light-duty restrictions approximately three more months because the Respondent employer expected that situation to be temporary. Thereafter, however, her doctor advised that there would be no foreseeable change in that restriction in the future and he considered her physical limitations to be continuing indefinitely. Because of this more or less permanent restriction imposed by her doctor, the Respondent took the position and advised her, on May 22, 1997, that it believed that she was unable to perform a significant number of essential job functions required of unit treatment and rehabilitation specialists on the day shift. The Respondent advised her that it believed that she was unable to perform most meal-monitoring functions, to escort residents, handle laundry and do most supervised activities out of the building as well as crisis intervention, medication delivery, monitoring and "coverage" of other buildings. Consequently, the Respondent informed the Petitioner that it would no longer be able to assign her to light duty on the day shift because it did not feel that she could perform sufficient of her duties to reach an adequate performance level. Other employees were having to perform many of her duties on a more or less permanent basis. The Respondent did advise her that it felt her needs could be reasonably accommodated (as well as the needs of the employer) by changing her schedule to the night shift. The night shift has a much lower level of activities, with no regular duties out of the building and virtually no necessity for resident contact. The Respondent advised the Petitioner of this proposal to change her duties to the night shift and gave her time and an opportunity to respond and either accept or reject the position on the night shift. The Petitioner submitted a doctor's note on May 8, 1997, stating that she would not be able to work on the night shift and the Petitioner declined the position due to this and to family-related reasons. Consequently, the Respondent felt it had no choice but to start termination of the Petitioner's employment. The Respondent candidly told the Petitioner that this did not involve her misconduct and that it was not trying to discredit her in any manner. However, the Respondent was unable to keep her in her position because it was beyond her physical capabilities, even after according her a much longer than normal light duty status. In fact, unrefuted testimony shows that, normally, light duty status is accorded for a four to six-month period and the Petitioner was given that benefit or accommodation for approximately four years. In any event, the Respondent found that the position occupied by the Petitioner was beyond her physical capabilities, that the safety of residents and other personnel in the building required that every employee be able to fully perform essential job standards and functions and that the Petitioner could not do so. Thereafter she was given an opportunity to meet with the Respondent to discuss and propose any alternatives, but after these opportunities elapsed she was terminated from her position on or about June 3,1997. There is no question that the Respondent knew the Petitioner had a disability. Indeed that disability was accommodated by light duty for more than four years. The testimony of Ellen Young and Sue Tennant, testifying for the Respondent, establishes that the normal course of a light-duty assignment, in the case of a disability, is for a period of four to eight months. Thus, the Respondent went far beyond the norm in according more than four years of light duty. Indeed, thereafter, the Respondent gave her a temporary re-assignment to the pharmacy and thereafter sought to find another position she could occupy and perform well enough, with her disability, to no avail. The Respondent also sought to continue her in its employ by re-assignment of her to the less strenuous night shift. She refused this re-assignment due to her doctor's restrictions on her activities, as well as for personal and family reasons (she simply did not want to work at night). It is also the norm, according to the Respondent's unrefuted testimony, through the above two named witnesses, that light duty is a concept which means that such a disabled person cannot perform a small portion of his or her job. It does not mean that such a person can be maintained in employment for a long period of time or indefinitely when she cannot perform a large portion of the duties of the job. It was established by the preponderant evidence consisting of these witnesses' testimony that the Petitioner was unable to perform a large portion of the duties of her position and that other employees on her shift had to perform a significant portion of her duties. In summary, the Respondent made every reasonable effort to accommodate her disability and to continue her in employment, short of simply creating an entirely new position tailored to her disability limitations (and for that reason). It thus reasonably accommodated her disability limitations or tried to.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, 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 11th day of September, 2001, in Tallahassee, Leon County, Florida. 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 Clerk of the Division of Administrative Hearings this 11th day of September, 2001. COPIES FURNISHED: Maxie Broome, Jr., Esquire 3120 Atlantic Boulevard Suite Two Jacksonville, Florida 32207-8814 Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent discriminated against Petitioner for the reasons stated in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is a Florida corporation engaged in the business of manufacturing, distributing, and selling cement and concrete. Respondent operates throughout the state and employs a substantial number of people. Respondent maintains an Equal Employment Opportunity Policy (the "policy"). Respondent promulgates the policy to all employees in its various facilities throughout the state. Respondent encourages the employment of disabled but qualified individuals. Respondent routinely makes reasonable accommodations for disabled employees. Respondent first employed Petitioner on June 29, 1981, but terminated that employment. Respondent subsequently rehired Petitioner in February, 1983, as a ready-mix driver and front end loader, and also as an occasional batcher. Respondent employed Petitioner in various positions until Petitioner resigned his last position on October 5, 1993. During his employment, Petitioner suffered physical injuries that resulted in both temporary and permanent impairment. All of the injuries occurred from work-related accidents. Petitioner suffered no other physical impairment. Petitioner is not physically disabled as a result of the physical injuries he suffered from his work-related accidents. The injuries Petitioner suffered did not substantially limit his ability to perform his duties and responsibilities. Respondent did not discriminate against Petitioner on the basis of Petitioner's physical impairment. Respondent provided Petitioner with reasonable accommodations. The first injury to Petitioner occurred on August 5, 1986. While driving a cement truck for Respondent, Petitioner drove his truck off of the road to avoid hitting a car that was stopped in front of him. Petitioner was thrown into the steering wheel and injured his stomach. Petitioner also injured his back and was treated by a chiropractor. On October 6, 1987, Petitioner reached maximum medical improvement under Workers' Compensation guidelines. His back injury left him with a total permanent impairment of seven percent. Petitioner returned to work on March 5, 1987. Respondent offered both light duty and regular work to Petitioner from October 6 through March 27, 1987. However, Petitioner refused to return to work prior to March, 1987, due to a labor dispute involving Teamsters Local 769. When the labor dispute was resolved, Petitioner returned to work as a batcher. The position was not defined specifically as a light duty job. However, it did accommodate the work restrictions prescribed after his previous accident. Petitioner subsequently resumed driving a truck for the Respondent. Petitioner was able to drive without restrictions. On March 17, 1988, Petitioner had the latest in a series of accidents as a truck driver for Respondent. On March 21, 1988, Respondent notified Petitioner that he had exceeded the number of accidents permitted under Respondent's "Accident Classification Policy" and prohibited Petitioner from operating any company vehicle for Respondent until further notice. On January 29, 1990, Petitioner passed a physical examination to be recertified as physically qualified to drive a truck. The examining physician certified Petitioner as physically able to drive a truck. Petitioner verified on the examination form that he did not suffer from any permanent defects resulting from illness, disease, or injury. Petitioner continued treatment for chronic discomfort caused by the back injury he sustained in August 1986. Petitioner's chiropractor intermittently prescribed light duty to alleviate Petitioner's discomfort. On September 6, 1991, Respondent attempted to accommodate Petitioner's chronic discomfort. Respondent offered Petitioner a position as a dispatcher in Respondent's Cocoa facility. The dispatcher position was not a light duty job. However, it did accommodate Petitioner's intermittent need for light duty work to alleviate his discomfort. Petitioner declined the dispatcher position. Petitioner elected to replace a junior truck driver in another location. Petitioner's chronic back discomfort continued to cause absences from work and frequent need for light duty work. However, no permanent light duty positions existed. Respondent repeatedly created temporary light duty work for Petitioner in attempts to provide Petitioner with employment. Respondent experienced increasing difficulty finding suitable work for Petitioner. The vast majority of positions involved a greater degree of manual labor than Petitioner was able to perform under his work restrictions. On August 13, 1992, Respondent's Worker's Compensation carrier had Petitioner examined by an orthopedic surgeon. At the time, Petitioner was being treated once a week by his chiropractor. Petitioner had a full range of motion in his cervical region, shoulders, elbows, wrists and fingers. X-rays showed no fracture, dislocation, or congenital abnormality. The orthopedic surgeon diagnosed Petitioner as suffering from a cervical sprain or strain which had become somewhat chronic in nature. He found that Petitioner had reached maximum medical improvement with a total permanent impairment of four percent according to Workers' Compensation guidelines. The orthopedic surgeon determined that Petitioner was able to work on a regular basis without restrictions. He concluded that Petitioner's permanent impairment did not interfere with the performance of his occupation. Petitioner aggravated his back injury while driving a truck. Petitioner's chiropractor excused him from work from September 28 through September 30, 1992, and placed him on light duty from December 10, 1992 through January 14, 1993. On December 17, 1992, the chiropractor sent a letter to Respondent's Risk Management Director discussing Petitioner's work restrictions. The letter designated Petitioner's work restrictions as: no prolonged sitting; no lifting over 30 pounds; no repetitive bending or twisting; and no climbing ladders. Climbing stairs was permitted. Petitioner's work restrictions continued in effect during the remainder of Petitioner's employment. In December, 1992, Respondent was unable to create temporary light duty work for Petitioner. Respondent had no other work available that accommodated Petitioner's work restrictions. Petitioner applied for Worker's Compensation benefits and apparently sought other employment for approximately two weeks. On January 5, 1993, Respondent located a suitable temporary position as a batcher at the Tarmac plant in Melbourne, Florida. Petitioner temporarily replaced the permanent batcher who was out on an extended illness. The batcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. After the permanent batcher returned, Respondent continued to find work Petitioner could perform. Respondent found temporary light duty work at the Melbourne plant. Respondent created a temporary position for an "aggregate dispatcher." Two employees performed the functions of the aggregate dispatcher in addition to their other regular job duties. The aggregate dispatcher position was not a position for which Respondent had a need. Respondent created the position for Petitioner in an attempt to accommodate his work restrictions and to keep him working. Respondent never represented the position as a permanent solution to Petitioner's need for light duty work. In July 1993, the permanent dispatcher at the Melbourne plant asked to move to another position. Respondent offered the full-time position to Petitioner. The dispatcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. Petitioner accepted the dispatcher position at the Melbourne plant. On August 1, 1993, Respondent promoted Petitioner to dispatcher and increased Petitioner's salary accordingly. Petitioner complained that he was unable to do the work by himself. Petitioner requested help to perform the job. The dispatcher job at the Melbourne plant had always been performed by one person and was routinely performed by one person at other locations. However, Respondent instructed Petitioner's supervisors to give him assistance when needed. In late August 1993, Petitioner stated to his supervisors that he could not perform the duties of dispatcher because he could not cope with the stress. Petitioner asked to be relieved of his responsibilities and resigned as dispatcher. No other suitable work was available. Petitioner agreed to remain in the dispatcher position until a replacement was hired and trained. A dispatcher from another plant, a 42 year-old female, transferred and took over the job. Petitioner's last day of employment was October 5, 1993. Unknown to Respondent, Petitioner was suffering from a severe major depression when he resigned from Respondent's employment. Sometime after August 13, 1996, an Administrative Law Judge for the U.S. Social Security Administration found that Petitioner had been disabled, within the meaning of the Social Security Act, since October 5, 1993. Petitioner suffered from a dysthymic disorder. He had a history involving a depressed mood. Petitioner did not respond to treatment. Petitioner lost his appetite, suffered insomnia, lethargy, inability to modulate anger in an effective manner, and disinterest in almost all activities. Petitioner was disabled. He was substantially limited in his ability to perform a major life activity such as work. Petitioner was significantly restricted, when compared with the average person having similar qualifications, from performing a class of jobs or a broad range of jobs in various classes. Petitioner entertained thoughts of suicide. He did not have the ability to follow instructions or to function independently. He had very limited concentration. His memory was impaired. Petitioner had marked deficiencies in concentration, persistence, pace, daily living skills, and socialization. Petitioner's disability prevented him from completing tasks in a timely manner. He suffered episodes of deterioration or decompensation in work resulting in withdrawal from the situation or exacerbation of his symptoms. Respondent did not discriminate against Petitioner on the basis of Petitioner's disability. Petitioner's disability existed for some time before Petitioner resigned from Respondent's employment. During that time, Respondent repeatedly provided Petitioner with reasonable accommodations to enable Petitioner to continue his employment with Respondent. Petitioner performed the duties of dispatcher satisfactorily prior to his resignation. There were no complaints about his work. Respondent had no reason to terminate Petitioner from the position. Petitioner did not express an interest in the possibility of alternative employment with Respondent. Petitioner did not request any further accommodations to enable him to continue working for Respondent. Petitioner's physical impairment did not prevent him from performing the dispatcher job. The dispatcher job at the Melbourne plant no longer exists because Respondent has undergone major restructuring. The functions of the dispatcher are presently divided among different individuals. Some of the functions are no longer performed at individual plants but are performed at centralized locations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Jack L. Shoemaker, pro se 106 Cameron Street, Southeast Palm Bay, Florida 32909 Charles S. Caulkins, Esquire Wendy J. Smith, Esquire Fisher and Phillips 2300 Nations Bank Tower One Financial Plaza Fort Lauderdale, Florida 33394
The Issue Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70"). Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
Findings Of Fact Petitioner, Richard Mastromarino, is a resident of St. Petersburg, Pinellas County, Florida. Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70. Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license. After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist. On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.” Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA. Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job. The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job. Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment. Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time. The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals. Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels. Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would not have been able to perform the job of Customer Service Representative. Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience. Petitioner was unable to perform these functions. After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards. Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs. Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work. In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave, Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy. After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return. Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner. The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
Recommendation Based on the foregoing, It is RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 2002. COPIES FURNISHED: Craig L. Berman, Esquire Berman Law Firm, P. A. 360 Central Avenue Suite 1260 St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759
The Issue Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
Findings Of Fact At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time. Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990. Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination. Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination. Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law. An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter. By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back. Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside. When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990. At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations. On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date. The Petitioner testified that she did not return to work after October 24 because it was too painful for her to continue the work she had attempted. On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all. The October 26, 1990 letter sent by Ms. Battle provided in pertinent part: You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return. At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor. Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record. Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place. It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder. In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann. Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list. Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work. On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D) In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part: You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job. Your resignation is effective 12:01 a.m., November 2, 1990. Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990. Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990. DONE and ENTERED this 30th day of April, 1991, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1991.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of October, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of March, 1985.
The Issue The issue is whether Petitioner filed his complaint against Respondent for race discrimination more than 180 days after the occurrence of the alleged unlawful employment practices contrary to Section 760.10(10), Florida Statutes (1989).
Findings Of Fact The parties' Stipulated Statement of Undisputed Material Facts constitute the following findings of fact: The Petitioner, Floyd Peacock, Jr., a black male, was hired by the Respondent, Air Products and Chemicals, Inc., on August 22, 1980. The Petitioner was initially hired and employed by the Respondent as a maintenance mechanic at the hire (entry) level. On August 22, 1980, James Coleman, a white male, was hired by the Respondent as a maintenance mechanic. On August 25, 1980, Elvin Higgins, a white male, was hired by the Respondent as a maintenance mechanic at the second year step level. The Respondent has had two means of filling the vacancies that arose in the plant. First, whenever someone left the Respondent's employ due to retirement, a voluntary discharge, or involuntary termination, that vacancy would be posted on a job board on the Respondent's premises. Employees wishing to transfer to the department where the vacancy arose were then allowed to apply, or bid, for the posted vacancy. Bids are awarded based upon job skills and seniority. For positions within the operations department, seniority is determined by the amount of time the employee had with the company. For maintenance positions, seniority is determined by the amount of time the employee had with the maintenance department. The second method used by the Respondent to fill vacancies was a "back- fill" procedure. When an employee's bid was awarded and that employee then transferred to another department, the vacancy created in the transferring employee's department was "back-filled" with a new hire from outside of the company. Additionally, a position that was opened for bids but not bid upon was also back-filled with new hires from outside of the company. In 1982, the Petitioner, whose pay level as a mechanic with the Respondent was at the "second step/year level," became interested in a three- year position in the ammonia methanol area and inquired about bidding for the job. He was told by the personnel manager, Laura Finn, that since he was at the two-year level, he did not qualify for the three-year position. The Petitioner did not bid for the job. Two white males, Roy Mony and Clayton Perry, who were previously employed as mechanics with Carroll Construction, as had the Petitioner, were hired at the "third step/year level" and placed in the two "third step/year level" mechanics jobs. The Petitioner filed no charge or complaint with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission concerning his not bidding for the "three step/year level" mechanics position or the hiring and assigning of the two white males "three-step" mechanics to those positions in 1982. At the time of his "fifth-year step" mechanic's interview in 1985 for obtaining his "five year/step" pay increase, the Petitioner confirmed with his supervisor that James Coleman had been made senior mechanic and had been advanced to the "senior mechanic" pay level. The Petitioner was given a "fifth year/step" mechanic's pay increase. Soon after the 1985 pay increase interview, the Petitioner went to the Respondent's Personnel Department with his supervisor to inquire about why James Coleman had been made a senior mechanic before the Petitioner. When the personnel manager was unable to provide the reason, the Petitioner talked with a staff member of the Escambia-Santa Rosa Human Relations Commission about his being given a "fifth year/step" mechanic's pay increase while James Coleman received a senior mechanic's title and pay increase. However, the Petitioner did not file any complaint with that agency or with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission. In June, 1986, the Respondent had a reduction in force (RIF) that resulted in some employees' employment being terminated and other employees being reassigned to other lower level and lower paying jobs. The following actions were taken as part of the RIF process in June, 1986: Maintenance mechanics hired prior to June 10, 1977, continued in their positions. Maintenance mechanics hired after June 20, 1977, but before the Petitioner's date of hire of August 22, 1980, were assigned permanent operator positions. Fifteen or sixteen maintenance mechanics who had been hired on or after the Petitioner's date of hire were placed in a temporary job position designated as "utility operators." Among the mechanics retained in the employ of the Respondent but assigned as utility operators was Elvin Higgins, a white male senior mechanic, and the Petitioner. The remaining mechanics were discharged as a result of the RIF in June, 1986. Among the mechanics who were discharged at that time were Roy Mony and Clayton Perry, whose hiring dates were after the Petitioner's date of hire. The utility operator position was a new, temporary position created in response to the RIF. In lieu of being discharged, fifteen employees, including Petitioner, were placed in the utility operator position. Utility operators worked at reduced pay, performing work previously accomplished by independent contractors. As vacancies arose in other departments of the company, one by one, each of the utility operators were to fill these vacancies until no one remained in the utility operator position. The respondent provided the utility operators with two means of transferring out of the utility operator position into a regular, higher paying position. First, utility operators were allowed to bid on any position that was subject to the Respondent's customary bid procedure. The second means that the utility operators had for leaving the utility operator position was through the assignment of a "back-fill" position. Instead of back-filling positions with new hires from outside of the company, as was the procedure before the RIF, utility operators were to be assigned to the back-fill positions. A utility operator would be back-filled into any vacancy that had been opened up for bids under the customary bid procedure, but on which no one had bid. Second, utility operators could be back-filled into a secondary vacancy created when another employee transferred from one position to another. The utility operators were to back-fill these non-bidded [sic] positions and secondary vacancies in order of seniority with the company (i.e., by date of hire). In June, 1986, when Elvin Higgins was reduced from senior mechanic to a utility operator because of the reduction in force (RIF), the Petitioner first became aware that Elvin Higgins had previously received senior mechanic status. On July 28, 1987, Aubry Garrett, one of the utility operators, used the normal bid procedure and successfully "bid-out" of the utility operator's position and took an operator's position. The Petitioner did not bid for this position. Between the time of the RIF in June, 1986, and the time the first back-fill position arose in September, 1987, the Respondent had not provided its employees with a finalized written or oral statement about how the back-fill positions would be administered after the RIF; however, during this period before the Petitioner refused the first back-fill position, when asked about this procedure by employees, Ernest Labadie, the personnel manager, told them that utility operators would be assigned back-fill positions in the order of the employees' length of service with the company. In September, 1987, two operator positions became available for utility operators to "back-fill" as secondary vacancies. The Petitioner, as the most senior utility operator based on date of hire, was offered one of the positions, but he refused the job because it was rotating shift work and he desired to work only "day hours" like he was working as a utility operator and had worked as a maintenance mechanic. Elvin Higgins and Gene Moore, the next senior utility operators based on date of hire, accepted the "back-fill" positions and were assigned those positions in early October, 1987. At the time of the Petitioner's refusal to "back-fill" and accept the available advancement to operator, the Petitioner was informed by Ernest Labadie, the personnel manager, that the Petitioner would be placed at the bottom of the list of the utility operators for future "back-filling" of jobs by utility operators. The Petitioner made no complaint to anyone or any agency about his being placed at the bottom of the list of utility operators for "back-filling" purposes in September, 1987, and believed at that time that his placement at the bottom of the list was fair and not discriminatory. Gary Kent is a white male who is senior the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department. Before the reduction in force (RIF) in June, 1986, Mr. Kent was a mechanic, but as a result of the RIF, he was transferred to an operator's position in the amines area of the company. The amines job was not shift work. On November 24, 1987, Mr. Kent bid for an operator's position in the PVC area and received the job on December 8, 1987. His move to the PVC area from the amines area resulted in an operator vacancy (secondary vacancy) in the amines area that would be "back- filled" from the utility operators' list (i.e., without the need for bidding for the vacant position). On December 8, 1987, the vacant operator position in the amines area was "back-filled" by David Hart, who was the next utility operator on the "back- fill" list since the Petitioner was at the bottom of the list. The Petitioner became aware of this assignment, or surmised that the assignment of Mr. Hart to the amines area would occur, before the announcement of the assignment was posted and when he heard that Mr. Kent had bid for the PVC area operator position. In November or December, 1987, the Petitioner spoke with the personnel manager, Mr. Labadie, about the Petitioner's chances of getting the vacant amines area operator position that was to be "back-filled" since Gary Kent had bid for the PVC operator's position. The Petitioner was interested in this operator position because it was not a rotating shift job. The Petitioner was told that consistent with the personnel manger's discussions with the Petitioner in October, 1987, the Petitioner was not eligible to "back-fill" the position because he was at the bottom of the "back-fill" list. The Petitioner accepted the explanation and understood the policy and procedure for "back-filling." The Petitioner made no complaint to anyone about assigning the amines area operator's job to Mr. Hart instead of to the Petitioner. In January, 1988, Bruce Holiday, a white male who is senior to the Petitioner by amount of time in the Respondent's maintenance department and who has been working as an operator after the reduction in force, bid for and received on February 1, 1988, the assignment back into the maintenance mechanic. The Petitioner had bid for this position but has no complaint of racial discrimination about his not being awarded the position because Mr. Holiday was a senior to the Petitioner for the maintenance mechanic position by the amount of time in the maintenance department. In February, 1988, the Petitioner and the other two last remaining utility operators, Randy Mock and Lawrence Pearce, were assigned and "back- filled" to operator positions. The Petitioner made no complaint and has no complaint about this assignment. In November, 1988, Gary Kent, who was also senior to the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department, bid for and received on November 20, 1988, an assignment back into the maintenance department as a maintenance mechanic, a position subject to the customary bidding procedures. The Petitioner had also bid for this position. The announcement of Mr. Kent's assignment was posted on the bulletin board for employees to see. The Petitioner became aware of the assignment of Mr. Kent to maintenance on or before the posting of the announcement on November 16, 1988. On or about November 16, 1988, the Petitioner discussed with Mr. Labadie, the personnel manager, Mr. Kent's bidding and being assigned into the maintenance department as a mechanic. The Petitioner complained that since Mr. Kent had previously bid and received the PVC position in December, 1987, Mr. Kent, in the Petitioner's view, had decided at that time that Mr. Kent did not want to go back into the maintenance department. Therefore, the Petitioner surmised that, even though Mr. Kent would later be the senior person eligible to be awarded a maintenance mechanic job if he had bid it, Mr. Kent should have been "placed at the bottom of the list" for purposes of bidding on any maintenance mechanic positions. The Petitioner asserted that this would be consistent with his being placed at the bottom of the "back-fill" list when he refused to accept the "back-fill" assignment in September or October, 1987. Mr. Labadie asserted in response to the Petitioner that there was nothing inconsistent since Mr. Kent's assignment was pursuant to and consistent with the Respondent's bidding procedures and policies for maintenance department positions which were in effect and used both before and after the RIF (and under which the Petitioner was allowed to bid and did bid for mechanic's positions); while the Petitioner's assignments from utility operator to the operator positions were governed by the "back-fill" procedure. The Petitioner personally did not agree with and did not accept this explanation, although he understood the two different procedures, and told Mr. Labadie that it was Petitioner's opinion that the bidding and "back-filling" should operate the same way. In January, 1989, the Petitioner again had a similar conversation with Mr. Labadie about Mr. Kent's bidding and being assigned a maintenance mechanic's job and the Petitioner's being put at the bottom of the "back-fill" list for assignment to operator positions. In late February, 1989, Ricky Cook and John Rink, both white males who are senior to the Petitioner by the amount of time in the Respondent's maintenance department and who had been working as operators after the June, 1986 reduction in force, bid for and received assignments back into the maintenance department as mechanics. The Petitioner has no complaint, based on racial discrimination or otherwise, as to these assignments. The Petitioner's employment discrimination charge was filed with the Florida Commission on Human Relations on March 27, 1989, and filed with the Equal Employment Opportunity Commission on March 31, 1989. On or about March 29, 1989, the Petitioner bid for and received assignment to maintenance mechanic in the Respondent's maintenance department, along with Larry Perritt, who is a white male and who was a senior to the Petitioner by the amount of time in the Respondent's maintenance department. The Petitioner was assigned the job on April 16, 1989, at the senior mechanic pay level. The Petitioner has no complaints about any of these assignments. The Petitioner received a pay increase at the "top level" of senior mechanic in October, 1989, after serving six (6) months in that position. In October, 1989, Elvin Higgins, after bidding for the position, was assigned to maintenance mechanic at the senior mechanic pay level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charges. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1995. COPIES FURNISHED: Richard E. Johnson, Esq. Spriggs & Johnson W. College Ave. Tallahassee, FL 32301 Ralph B. Peterson, Esq. Beggs & Lane P. O. Box 12950 Pensacola, FL 32576-2950 Sharon Moultry, Clerk Human Relations Commission John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
