The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, 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 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 23rd day of January, 1992.
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. 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 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
Findings Of Fact Based upon the evidence presented at final hearing, the following facts are determined: Nature of Complainant's Handicap At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.) The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy; P.E. 11.) In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11) Complainant's Application for Employment as a Program-Analyst On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.) Qualifications and Duties of the Available Program-Analyst Position. The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.) During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.) Qualification of Complainant At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised 23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.) COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.) The Company's Conditional Offers of Employment and Rejection of Complainant. On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3) On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.) COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton). On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.) On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT: "Dear Mrs. Fitzpatrick: As a result of my examination of Mr. Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris. He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about 70 lbs. If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.) Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.) Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.) However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough; P.E. 4.) Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.) The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.) Complainant's Lost Wages and Attorney's Fees COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at $18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.) COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.) Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.) The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
Conclusions Conclusions: That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied. Recommendation: That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position. Background On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease. After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)]. After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980. Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted. By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense. The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing. On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980. At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence. At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order: Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case. DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
