Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues to be resolved in this proceeding concern whether the Respondent imposed an unlawful employment practice upon the Petitioner, whether the Petitioner has a disability and was subjected to disability discrimination in the course of the purported unlawful employment practice or event.
Findings Of Fact The Respondent Willstaff Crystal, Inc., (Willstaff) is engaged in the business of employee staffing for client companies who need employees. The process essentially concerts of prospective employees submitting employment applications for job placement to Willstaff. Willstaff then seeks to place that person as a hired employee with a firm or company which is one of its clients, (i.e., has requested that Willstaff assist it in finding employees for its business). On or about August 18, 2003, the Petitioner, Janet Shaffer, made application with Willstaff for employment placement. The application was not for employment as an employee of Willstaff, but rather for placement in a job with a company which might be a client of Willstaff. After placing Ms. Shaffer in two temporary job assignments with two different employers, she was assigned a job placement with Moldex Inc., on about October 27, 2003. Her duties at Moldex consisted of performing assembly line-type duties including cutting rubber hoses using an "air Knife." The placement and job assignments that Willstaff had secured for Ms. Shaffer during 2003 were designed to be temporary employment assignments. At some point during her shift, while employed with Moldex, Ms. Shaffer was required to place a box on a shelf above her head. She had some difficulty doing so, she says, because of her arm or shoulder injury, and requested assistance from a co-worker. Ms. Shaffer testified at hearing that due to a previous shoulder injury she is unable to lift her right arm above shoulder level. Her shoulder causes her pain, but she was not currently under a doctors care and her injury did not limit any major life activities. In any event after working only two days with Moldex, Inc., she was released from employment at Moldex, Inc.'s request due to low job productivity. Ms. Shaffer believes according to her testimony, that Moldex, Inc., terminated her as a proximate result of her requesting assistance from a co-worker due to her inability to reach above shoulder level because of her pre- existing shoulder injury. Her testimony establishes that if she an unlawful employment practice it was at the hands of Moldex, Inc.; not Willstaff. She indicated quite clearly in her testimony that she had no intent to pursue a claim against Willstaff, but only against Moldex, Inc.; because she believed that Moldex, Inc.; had terminated her, due to her limitation because of her shoulder injury. She stated that she named Willstaff as the Respondent in this case by her Petition for Relief because she was instructed to do so by some unknown individual who helped her prepare the Petition for Relief. Ursula Maurice testified as a representative of Willstaff. Her testimony establishes that Willstaff had no knowledge that Ms. Shaffer suffered from a disability. No adverse employment action was ever taken by Willstaff against the Petitioner. In fact, the Petitioner was never an employee of Willstaff. Moreover, Willstaff has an "EEO policy" in place and properly noticed its employees and Ms. Shaffer had never availed herself of it or made any formal complaint to anyone at Willstaff regarding discrimination, whether by Moldex, Inc. or any other entity. In any event, the Petitioner's own testimony establishes that she has no physical or mental impairment that substantially limits one or more of her major life activities. She also failed to established that she was qualified for the job in question with or without reasonable accommodations, that is, the job she briefly occupied at Moldex, Inc. She did establish that she suffered an adverse employment action or decision because she was "let go" from her employment at Moldex, Inc. She did not establish clearly that Moldex, Inc., had any knowledge of her disability. Finally, and most to the point, the Petitioner has not established, and freely admits, that she was not an employee of Willstaff. Therefore, she did not suffer an adverse employment action or decision made by Willstaff. She clearly stated in her testimony that her complaint is properly against Moldex, Inc. Nonetheless, Moldex, Inc., has not been served with a petition, has not been made a party respondent, and has not been noticed of this proceeding, including the hearing. Therefore it is not legally charged with having to defend itself at this juncture, as to any employment decision it may have made regarding the Petitioner in this proceeding.
Recommendation Having considered the foregoing findings of fact, 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 denying the Petition its entirety. DONE AND ENTERED this 17th day of June, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2005. COPIES FURNISHED: Janet Shaffer 6401 Da Lisa Road Milton, Florida 32583 John T. Bender, Esquire McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard Mobile, Alabama 36609 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 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent has engaged in an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on his disability.
Findings Of Fact Petitioner has been employed as a correctional officer by Respondent at all times pertinent to this proceeding at Tomoka Correctional Institution (TCI) in Volusia County, Florida. The prison houses adult male inmates. Staff at TCI has the primary mission of providing for the public safety through the care, custody and control of the inmates housed in that facility. In early 1998, Petitioner was diagnosed with Non- Hodgkin's Lymphoma and began treatment for the disease. He was granted leave as needed for treatment and continued otherwise to work. Petitioner requested and was eventually granted the privilege of working a double shift only in those situations where he could take the next day off. In December of 2000, he requested that he be assigned to a perimeter post half of the time, and that he not be assigned to the chow hall or to guard sick inmates. Since Petitioner did not provide sufficient medical information to support the requested accommodation, it was denied. Respondent assigned Petitioner to be a "roving perimeter officer" on June 18, 2001. These officers observe the secure perimeter of the facility to ensure that no unauthorized entry into or out of the facility takes place. Each officer on this assignment is issued a shotgun, revolver and a motor vehicle. Each officer has a specific part of the perimeter fence to guard. Petitioner, as a result of medication he takes for his condition, experienced an urgent need to defecate, and left his post after calling for a replacement. As a consequence, Petitioner was thereafter assigned duty only where he would have immediate access to bathroom facilities. Petitioner provided documentation from his health care provider to Respondent indicating that Petitioner could work any post in the facility subject to certain qualifications. He should be given 16 hours' advance notice of the assignment to permit him to plan his medication schedule if he were assigned to the perimeter or other station where bathrooms were not readily available. Additionally, Petitioner was to be relieved within nine minutes of requesting a needed bathroom break. Petitioner also needed to have constant access to cold water and not be subjected to temperatures in excess of 90 degrees for more than an hour. As a result of his special needs, Petitioner remained assigned mainly to inside posts. He meets all requirements to work in the TCI observation towers, which have bathroom facilities and are climate controlled. He is assigned to such a tower one day per week. Respondent will not provide Petitioner 16 hours' notification of a future assignment so as to permit him to schedule his medication in such a way as to avoid urgent bathroom usage. Further, Respondent will not provide relief within nine minutes so that Petitioner can use the restrooms when necessary. Petitioner is generally assigned by Respondent to dormitory duty with the exception of tower duty one day per week. The dormitory is air-conditioned, but such assignment is stressful, fatiguing, and could adversely affect Petitioner's physical condition of lymphoma which is presently in remission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 22nd day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Lawrence A. Lopenski 2482 Barbarossa Avenue Deltona, Florida 32524 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Ms. Coda, began working for the Council as a project counselor in August, 1989, dealing with AFDC referrals. In June, 1990, she was also assigned unemployed parents cases in the Council's Dade City office. In February, 1991, she started experiencing personal problems. Her marriage of 33 years was in trouble and this affected her. She immediately sought medical help. She had a young daughter, who was getting married, but Petitioner was not in good health. She had high blood pressure and was 50 pounds overweight. Her doctor put her on a diet and an exercise regimen which she carried over to her work. In June, 1991, F. Shaheen left her position with the Council as a counselor in New Port Richey and recommended to Petitioner that she apply for the vacated position there because it would have been much closer to her home. Petitioner did apply but was told by her supervisor, Mr. Steinberg, that she would still have to handle her unemployed parent clients in Dade City if she got the assignment. This would not have helped her, so she withdrew her request. In July, 1991, Petitioner came to work one day and found Mr. Steinberg and others going through her records. She was thereafter given a reprimand and a three day suspension for poor records, which she accepted. This was stressful for her because she had never been reprimanded before. In late July, 1991, she went to see her doctor because of a gall bladder attack. The doctor recommended she have surgery to remove it during which he would also do a laporoscopic examination. When she went in for the work-up, a nodule was found on her left lung. The doctor recommended it be removed because he thought it might be cancer. In October, 1991, Ms. Coda found out that her husband, with whom she was still having trouble, was living with another woman. When she went back to the doctor at that time, he said the nodule had enlarged and recommended immediate surgery. Ms. Coda had already planned a vacation for that time, but when her sister stated that she had arranged for Ms. Coda to get a second opinion on her condition at the Sloan-Kettering Cancer Center in New York, Ms. Coda took her vacation leave and went there. Before leaving, she told Mr. Steinberg where she was going and he questioned her need for a second opinion. Nonetheless, on January 8, 1992, Ms. Coda, who had decided to have the recommended surgery, advised her supervisor that the operation was scheduled for shortly thereafter, but before it could be done, on January 17, 1992, she was advised that her insurance would not cover the cost of the operation if done in New York. She immediately contacted her office and told them what was happening. She said she was coming back to the local area and was waiting for the airline to get her a seat for her return, and advised the staff that she would be back as soon as she could. Notwithstanding, on January 13, 1992, Mr. Steinberg, by letter, advised her that he was aware she had not had the surgery, complained that she had not contacted him for 10 days or provided the requested physician's statement to support her absence, and further advised that if she did not contact him regarding her intentions as to work, he would terminate her for absence without leave. She returned to work on January 20, 1992 Ms. Coda also received a memorandum from Mr. Steinberg, dated January 24, 1992, advising her of his receipt of reports of her substandard performance, directing her to return to work immediately, pending her surgery, and, in addition, outlining the specific tasks upon which he wanted her to concentrate. When she got back to work, she was told not to deal with clients and was counselled by both Mr. Steinberg and the Council Executive Director, Mr. Burlingame, repeatedly, about her failure to communicate with the office. Mr. Burlingame recognized she was under stress but nonetheless threatened her with dismissal which would result in her losing her health insurance coverage. Mr. Burlingame told her to get her health problems resolved and the operation scheduled, but also advised her she was not to handle clients. Ms. Coda accepted this because she believed that if she fought the reprimand she would be discharged. The operation was set for February 10, 1992. When she contacted her physician and told him what was going on, the medications for stress were increased. Nevertheless, Mr. Steinberg showed her no sympathy. On February 1, 1992, Ms. Coda received a reprimand for previous misconduct which allegedly occurred in January. She thereafter submitted a letter from her doctor which indicated she would be out of work until at least the end of April. Ms. Coda left the hospital after her surgery on February 18, 1992 and went home in the care of a housekeeper and nurse. The extent of her surgery, which left her with 42 stitches on her left back, made it difficult for her to do much because she is left handed. She was also given extra pain medications due to a rib which was broken during the operation. She was not required to undergo either radiation or chemotherapy because her cancer was rated as stage one. She does not know the current status of her health because, since she has been discharged, she cannot afford to go in for the checkups. She was able to drive when she came back to work, however, and she could write by hand, but her arm got tired if she had to write more than usual. She could use the phone and could interview clients. During the third week of March, 1992, even though Ms. Coda had submitted a letter from her doctor indicating she should be off work until April, she was called by Mr. Steinberg and asked to come back to work early because the other counselor had to take off for elective surgery. Her primary doctor did not want her to go back to work and she explained her limitations to Mr. Steinberg who replied that in that case she would have to be replaced. Because she had a lot of surgery follow-up appointments to be met and needed her health insurance coverage, she got another doctor to give her a limited work release conditioned upon her being placed in an area where there would be no smoking, no dust, no chemicals, and, though not specifically stated therein, for no more than six hours per day. Ms. Coda went back to work on April 22, 1992. She was put into a retraining program but she considers it to have been more an update of procedures implemented during the period of her absence. She does not consider it to have been retraining because of poor performance. Evidence to the contrary, from Mr. Burlingame and her coworkers is more persuasive, however. After about two weeks back on the job, for reasons unknown to her, Ms. Coda's office was moved from the front of the building to the rear where, she contends, all the smoking was done. As she relates it, the smokers kept the rear door to the outside open so they could hear the phone if it rang, and she asserts there was someone outside the door smoking seven or eight times a day. Others said she was moved because of her loudness. Ms. Coda was in the office for four weeks after her surgery. During that time, she kept her door closed because of the smoke which would be blown back into the building through the open back door. Her requests to have the back door to the outside kept closed were refused and this added stress. In addition, she was required to commute between the office in New Port Richey and the office in Dade City to manage the unemployed parent program. These allegations of stress and working conditions are confirmed by the testimony of Mr. Rivera, her cousin by marriage, and Ms. Gonzalez, an employee of the Department of Labor and Employment Security who was aware of the situation. Ms. Coda claims that throughout the time she worked for the Council, she was never advised of any client complaints against her, but, eventually, was fired by Mr. Burlingame who used as a reason her poor performance. He told her he had received complaints of her lack of empathy toward clients. She denies this and claims to be very empathic. She believes her dismissal was a culmination of the harassment she had received from Mr. Burlingame. He had told her he wanted to be in first place in a case competition, but it was impossible to achieve this within the three weeks available. She also claims he was unfriendly toward her and would not speak to her, though he was quite friendly to others. In substance, she claims, her firing was due to her medical problems and the fact that they would add to the cost of health insurance paid by the Council. Mr. Burlingame places a somewhat different perspective on Petitioner's story. As he relates it, Petitioner was hired to work with extremely disadvantaged clients who experience many barriers to employment. She was to evaluate the clients to select the best program for them and then to work with the clients to see they successfully completed the program and went to work. The New Port Richey office case load is from one hundred twenty to one hundred sixty clients per counselor. The Dade City case load is much smaller, with each counselor managing from twenty to fifty or sixty clients. Petitioner worked, primarily, in the Dade City office with one other counselor, Ms. Phelps, and a receptionist, marketing representative and office manager. Mr. Steinberg was the operations supervisor physically located in the New Port Richey office, but he filled in as a counselor in the Dade City office in the absence of Ms. Phelps. The criteria for employment as a counselor with the Council includes a four year degree in psychology or social work and two years experience. Petitioner did not meet these criteria, but she was hired because she was what they could get for the salary they paid. The salary levels for counselors are now much higher and they are able to attract better qualified people. Mr. Burlingame made the final decision to terminate Petitioner based on Mr. Steinberg's recommendation for dismissal. When Burlingame received this recommendation, he called Petitioner in to his office in New Port Richey, on June 30, 1992, to hear her side of the story. During their conversation, he told Petitioner that some clients had expressed concern about working with her and he asked her to explain. In response she became hostile and defensive, and it became clear to him that she was out of control. At that point he terminated her employment. By this time, Petitioner had received several prior reprimands and Mr. Burlingame was concerned that she was not keeping up the required documentation which supports the Council's expenditure of federal funds. She had trouble following rules and was repeatedly counselled about doing audit ready work. It was clear she did not develop a clear plan for client direction. Much of this was evident long before she was ever diagnosed with cancer and had nothing to do with her absences on that account. Mr. Burlingame's agency follows the state's anti-harassment policy. He supports treating employees and clients with dignity and respect. The policy made clear an alternate avenue for voicing complaints by employees, but Ms. Coda never filed any complaint with him or the alternate. By the same token, he was not aware of any smoking problems at the Dade City office, and he has no knowledge of any smoking inside the building after promulgation of the Council's smoking policy. Employees smoked outside the building and he believes that even if the door was left open for phone purposed, the building dynamics would tend to take the smoke out from a building rather than into it. In any case, neither Petitioner nor anyone else ever complained to him about smoke conditions in the office. Petitioner did not discuss with Mr. Burlingame that she was going away for cancer treatment. Her leave request indicated she was making a family visit, (but this was before Petitioner's sister called with the appointment in New York). He did not know she had cancer before she left. The Council has a health plan for which it pays the premium for the employee and twenty-five percent of the premium for the family. It does not get into the approval of bills paid by the insurance carrier and Mr. Burlingame knew nothing of her condition. The second opinion she sought and the surgery she had were referred by the primary care physician. Mr. Burlingame was not a part of the decision making process in denying her surgery in New York, nor was the Council. Because of the terms of the insurance policy the Council had, Petitioner's surgery would have had no impact on the premium the Council paid in the future, and Mr. Burlingame was not concerned about the potential for increased premiums. The Council imposes a six month probationary period on new employees to give them the opportunity to become competent in doing their work consistent with federal guidelines. It was only when Mr. Burlingame felt that Petitioner had crossed the line from merely incompetent to potentially dangerous to the development of the clients that he determined to terminate her employment. Several clients were seen to be crying when they left the Petitioner, and some complained to him about the way they were treated by her. Some said they would drop out of the program rather than work with her. This is inconsistent with the thrust of the program and not good for the rating process. In addition, Petitioner allegedly did not return from leave when required. Mr. Burlingame received a memorandum from Mr. Steinberg that Petitioner had not returned and he didn't know when she would return. On January 7, 1992, Mr. Burlingame was advised by Mr. Steinberg that Petitioner would return on February 10, 1992. In reality, she came back to work on January 20, 1992 without having had her surgery. At that time, management was quite concerned about the program. January is the start of a new semester in the various tech schools and it is imperative that students be lined up for entry. All this work was supposed to have been done before Petitioner left on vacation. However, while she was gone, clients came in to check on their paperwork, and when her files were examined, they were found to be in such disarray no one could figure out what was going on. This was the second time Petitioner's files were found to be unsatisfactory while she was gone. As a result, when Ms. Coda came back to work in January, Mr. Burlingame felt it imperative she not deal with clients but, instead, work with her files to make them acceptable, especially in light of the fact she was due to have surgery and would be out for two months thereafter. She was not terminated at that time. However, after her surgery, when she was called to see if she could come back somewhat sooner than the doctor's predicted April 21 date, she said she would not be back until May, although, as was noted previously, she actually came back to work on April 22. When that was reported to him, he directed Mr. Steinberg to give her retraining in procedures upon her return. The first three items of that retraining were elementary procedures. Only the fourth segment consisted of updating. For training purposes, Mr. Burlingame equated her with a new employee who needed training in the basics of her job. Joellyn Chancey is administrative coordinator at the Council and supervises three sections, including management information. This section tracks the paperwork of the individual counselors. She found a lot of mistakes in Petitioner's paperwork which required it to be sent back for re- accomplishment - more so than with the other counselors. Ms. Chancey could cover for Petitioner on the more routine matters. It was the more complex matters which had to be returned. In her opinion, Petitioner was the worst counselor as far as paperwork was concerned. All counselors use the same coding and Petitioner would often leave off the required codes, omit required steps, and the like. When Petitioner came back to work after her surgery, she was to be retrained. There were few changes made during her absence and the training administered was mostly matters which had not changed. Most of the matters Petitioner had to do were routine and not specific to her. They consisted of matters which Petitioner should have learned over time but still got wrong on a regular basis. In addition, Petitioner had a relatively small case load compared to other counselors, managing approximately thirty cases as compared to between one hundred fifty or more for the others in the New Port Richey office. Mary Miller was a coworker of Petitioner, and while she did not work directly with her, observed her from time to time, and periodically took over Petitioner's clients when Petitioner was gone. The first time she did this, Ms. Miller found a lot of clients were not being called in in a timely manner, so she did what had to be done to bring Petitioner's cases current. On the second occasion that Miller worked with Petitioner's files, she found that all the files she had updated on her first substitution had been untouched since that time. The files were not updated as required, which could result in clients missing out on services and their income being cut off. On none of the conversations Ms. Miller had with Petitioner did Petitioner ever mention how her cancer surgery had affected her work nor did she complain about smoke in the office. In fact, Ms. Miller never saw any employees smoking in the Dade City office. She, too, has just returned from an extensive medical problem, and at no time was she ever harassed because of it or given any indication Council officials were concerned about the cost of her treatment. Agnes Phelps, a smoker, worked with Petitioner at the Dade City office, and before the nonsmoking policy came into effect, smoked in the office. After the policy was promulgated, however, neither she nor anyone else smoked inside the building and she could not detect any odor of smoke inside the building. By the same token, she cannot recall Petitioner as having ever complained about the smoke. Ms. Phelps has heard and observed Petitioner counseling clients. She found Petitioner to be somewhat loud in speech and there have been times when Petitioner wouldn't see clients without an appointment and would not try to accommodate them. Her tone of voice was "off-putting" at times and gave the impression she didn't want to be bothered. As a result, several clients determined not to deal with Petitioner and Miller took them over. As to the clients she took over from Petitioner, Ms. Miller was concerned about the non-positive termination rate, (those who did not graduate and go to work), which seemed to be a larger percentage of Petitioner's client load than with other counselors. Much of this, she believes, was due to a lack of strong relationship between the client and the Petitioner. In addition, it was impossible to track down a lot of Petitioner's clients. All this had an adverse effect on programs and clients. According to Harriet Chambers, the office manager for the Dade City office, the move of Petitioner's office was prompted by Petitioner's loudness which made it advisable to move her from the front of the building to the back. The move, decided upon by both Steinberg and Ms. Chambers, did not result in a complaint by Petitioner. Her only expressed concern was with furniture and she never requested an accommodation due to her physical condition. Ms. Chambers also had the opportunity to observe Petitioner's interaction with clients. Petitioner's voice was high pitched and clients would come out of her office either angry or in tears. Often Petitioner would decline to see clients without an appointment- a practice contrary to the Council's policy to treat clients with dignity. Petitioner would also characterize clients as dead beats, lazy, back stabbers, no good, and the like in dealings with other agencies. This, too is not appropriate. When Petitioner left for New York, she told Ms. Chambers she was going to see a doctor for a second opinion, but the office had trouble finding out when she would be coming back. Petitioner did not return on time, and failed to meet with clients with appointments who came in as scheduled. During 1992 Melissa G. Perry was a client of Petitioner to whom she went with problems relating to day care and the like. Ms. Perry expected Council employees to help her get a job, give her financial advice, and raise her self esteem. This did not happen, however. On one occasion, she had a complaint about the manager of her day care facility and called on Petitioner for assistance. Petitioner agreed to see her if she would hurry over. When Ms. Perry explained the problem, Petitioner dismissed it saying it was not her problem. As a result, when Ms. Perry had other problems, she didn't want to talk to Petitioner because Petitioner showed no compassion or understanding. In addition, according to Ms. Perry, Petitioner was loud and cold and gave the impression she didn't care about her. This hurt Ms. Perry's feelings and lowered her self esteem. The evidence, therefore, indicates Petitioner was discharged because she was rude, unprofessional and uncaring in her treatment of her clients. Her discharge had nothing to do with her physical condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed in this matter by Anna de la Rosa-Coda, against the Private Industry Council of Pasco County, Inc. be dismissed. RECOMMENDED this 6th day of January, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of January, 1995. COPIES FURNISHED: Anna de la Rosa-Coda 7484 Canterbury Street Spring Hill, Florida 34606 Alfred W. Torrence, Jr., Esquire Thornton, Torrence & Gonzalez, P.A. 6645 Ridge Road Port Richey, Florida 34668 Sharon Moultry Clerk Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
Findings Of Fact On February 9, 1988, Petitioner saw an advertisement in a local newspaper for a trim carpenter at Respondent's job site in Palm Harbor, Pinellas County, Florida. He travelled from south Pinellas County to the job site, and arrived at approximately 8:00 a.m. on February 9, 1988. The job superintendent, Bill Blanc, talked with Petitioner about the job, and explained that no applications were available for him to complete. He told Petitioner that the applications were being brought by messenger from the Respondent's office in south Pinellas County, and that when they arrived he would have to fill one out. However, because Petitioner was extremely anxious to start work, and because Blanc was desperately in need of a trim carpenter on the job, Blanc violated Respondent's established policy by allowing Petitioner to begin work at approximately 8:00 a.m. on February 9, 1988, without first completing an application or being interviewed by Gary W. Lincoln, Respondent's Vice- President. Blanc did not have the authority to hire anyone. Petitioner worked on the job until approximately 12:00 p.m.. (Noon) on February 9, 1988, when the applications arrived. Blanc gave Petitioner the application, and told him to fill it out. While Petitioner was completing the application, Blanc called Gary Lincoln to tell him that he was going to send Petitioner to him for an interview. When Lincoln heard that Petitioner was already on the job, he ordered Blanc to have him leave the job site, and come to his office right away for an interview. Blanc was subsequently reprimanded for allowing Petitioner to begin work without filling out an application, and without an interview. He admits that he acted hastily, and without authority. When Blanc told Petitioner he would have to go for an interview at Respondent's office in south Pinellas County, Petitioner exploded in anger, and left the job site. Blanc testified that he was anxious and concerned for his own safety due to Petitioner's reaction. Petitioner admits he was upset when told he would have to be interviewed. Petitioner left the job site in anger without finishing the application papers, and failed to appear for an interview with Gary Lincoln. Petitioner claims he was discriminated against by the Respondent due to his handicap in their failure to hire him, or in their actions terminating him on February 9, 1988, since he was already on the job. However, at the time Blanc talked with Lincoln on the telephone on February 9, 1988, Blanc had not seen Petitioner's application since he was still completing it, and Lincoln did not know of any handicap Petitioner may have had. Lincoln was simply following the normal policy of the Respondent, which was to require a completed application and an interview before any persons were hired. Petitioner testified he has a 17 percent disability rating due to a prior back injury. He correctly completed a Medical Questionnaire (Form 7/86), which was included with the application, by disclosing he had a prior surgical disc removal in 1962, but that he did not have any permanent physical condition with a 20 percent impairment rating. However, although Petitioner claims that Respondent's actions resulted from the answers he gave on this form, there is no evidence that Respondent was even aware of these answers when the telephone conversation between Blanc and Lincoln took place on February 9, 1988. Although he left the job at approximately 12:30 P.M., Respondent paid Petitioner for seven hours work on February 9, 1988. This was done since Respondent's superintendent had erred by allowing Petitioner to begin work on that day, and Lincoln felt it was only fair to pay him for the rest of the day since Petitioner had been prevented from finding work at some other job that day due to Blanc's unauthorized actions. It was established that Respondent has hired many employees with disabilities similar to, or more severe, than Petitioner's. In fact, Blanc has a 15-20 percent disability rating due to an impairment of his left foot. On February 25, 1988, Petitioner filed a Charge of Discrimination based on handicap with the Clearwater Office of Community Relations. Respondent is an employer within the meaning of Pinellas County Ordinance 84-10.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Office of Community Relations, enter a Final Order dismissing the Petitioner's charge of discrimination against Respondent based upon handicap. DONE AND ENTERED this 22nd of August, 1989, in Tallahassee, Florida. DONALD D. CONN 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 22nd day of August, 1989. COPIES FURNISHED: Robert Cheeseman 1404 River Road Orange Park, FL 32073 Denise L. McCain, Esquire P. O. Box 3542 St. Petersburg, FL 33731 Ronald M. McElrath, Director Office of Community Relations P. O. Box 4748 Clearwater, FL 34618 Miles Lance, Esquire P. O. Box 4748 Clearwater, FL 34618
The Issue The issue is whether Respondent engaged in an unlawful employment practice, specifically whether Respondent failed to accommodate Petitioner's alleged disability.
Findings Of Fact Petitioner was hired by Dollar General in December 2006 as the second shift Human Resources (HR) Representative I for Dollar General's Alachua Distribution Center. As the second shift HR Representative I, part of Petitioner's responsibilities was to interact with the employees who worked on the second shift. Petitioner's immediate supervisor throughout her employment was Donna Myers, Senior Human Resource Manager. Ms. Myers interviewed and hired Petitioner. Petitioner's job as a HR Representative required her to conduct interviews, drug tests, participate in committees, interact with employees, transfer employees, and other employee- related duties. Petitioner was qualified for the position as HR Representative, having a master's degree in human resources management. Some concern existed among management as to whether Petitioner could be as effective in her job if she were to use a golf cart. The concern was whether she would be less approachable by employees when driving around rather than walking up to the areas where they worked. Since there was an "open door" policy for employees to approach Petitioner, she could always meet them in her office if they had enough time during a break. Company policy dictates that at least 10 percent of the HR Representative's time should be spent "walking the floor." Petitioner understood the walking requirement to be at least an hour per shift. Dollar General maintains and enforces an Anti- Discrimination and Harassment Policy, which prohibits, among other things, discrimination based on an employee's disability. Dollar General's Anti-Discrimination and Harassment Policy also contains a provision which provides, in pertinent part, that it intends to comply with the Americans with Disabilities Act by providing reasonable accommodations to qualified individuals with disabilities. Dollar General's Anti-Discrimination and Harassment Policy includes a procedure that allows and urges any employee who believes that that he or she is the subject of or has been the subject of discrimination to report the alleged discrimination by contacting a toll-free number. Ms. McIntosh was an employee of Dollar General, was aware of Dollar General's policy prohibiting discrimination and harassment in the workplace based on disability, and acknowledged receipt of Dollar General's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy applies to all employees. As an employee, Dollar General's Anti-Discrimination and Harassment Policy applied to Ms. McIntosh. All of Dollar General's management team, who testified at hearing, were aware of the company's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy instructs employees to speak with their supervisor or to call the Employee Response Center to request an accommodation or report any type of discrimination. Ms. McIntosh took medical leave in October 2007. In the October 25, 2007, certification for her medical leave, Ms. McIntosh's treating physician estimated that the probable duration of her condition was one to two weeks. Further, in the November 15, 2007, recertification, Ms. McIntosh's physician estimated that the probable duration of her condition was two to three months. Effective November 24, 2007, Ms. McIntosh's physician released her to return to work without any restrictions. The release does not indicate that Ms. McIntosh was unable to climb stairs or walk for extended periods of time. Ms. McIntosh was physically able to do her job when she returned from medical leave. Ms. McIntosh identified the disabilities for which she requested accommodations as arthritis in hips and knees, a dislocated disk, and a pinched nerve. Ms. McIntosh claims that her disabilities limited her ability to walk, stand, and climb stairs. Petitioner recalls making her first request for an accommodation to her direct supervisor, Donna Myers, to use the golf cart to tour the million-square-foot facility, and to be excused from climbing in September 2007 after being diagnosed with arthritis in her hips and knees. Petitioner reports being told that the golf carts were no longer allowed for use by HR personnel. Ms. Myers denied this exchange taking place, and testified that the golf cart was available for Petitioner's use at any time. Robert Barnes, the distribution center manager, confirmed Petitioner's understanding that the designated HR golf cart was no longer used in HR. Petitioner also reported her October 2007 injury to Ms. Myers. Petitioner was even seen at the emergency room by Mr. Barnes. The medical leave paperwork was submitted to Ms. Myers by Petitioner. Dollar General had knowledge of Petitioner's injuries and medical condition. Upon her return to work in December 2007, Petitioner again asked Ms. Myers about using the golf cart and decreasing the amount of time she was required to spend on the floor of the distribution center. This request was denied. Again, Ms. Myers denied that this exchange took place between Petitioner and her. Petitioner began to use a cane or walking stick to help her get around the distribution center. Ms. Myers acknowledged seeing Petitioner walking with aid of the stick. Petitioner is firm in her testimony that she informed her supervisor and others up the chain of command of her condition and her need for an accommodation. Nevertheless, Ms. Myers denies that Ms. McIntosh asked to use a golf cart, to be relieved of her responsibility to walk the facility to interact with employees, or to be excused from walking up and down the stairs to meet with employees. A series of correspondence and emails supports Petitioner's claim that Dollar General's management was aware on some level of the seriousness of her physical limitations. Medical records that were submitted to Ms. Myers in October 2007 by Petitioner describe her knee pain and inability to walk up stairs. Those records estimate two weeks before Petitioner's return to work. The October medical report led to a November 9, 2007, letter from Ms. Myers to Petitioner requesting an updated medical certification. Petitioner complied and provided a medical certification showing the knee injury to be more serious than first thought and accompanied by a herniated disc. This report evidenced a return to work time of two to three months after physical therapy and additional diagnostic procedures. Finally, Dollar General received a Fitness for Duty form from Petitioner's health care provider stating a return to work date of November 24, 2007. Petitioner convinced her physician to clear her for work under the belief she had to be qualified at 100 percent in order to return. Prior to raising the issue of her medical condition, Petitioner had a stormy relationship, at times, with her supervisor, Ms. Myers. An exchange of emails occurred in March and April of 2007 between Petitioner and Mr. Harbison detailing Petitioner's issues with Ms. Myers. Petitioner did not ask Mr. Harbison, who was in her direct chain of command, to modify the responsibilities of her job in any way, nor did she mention -– until her suspension in March 2008 -– that she allegedly requested and was denied a reasonable accommodation. Petitioner did not call Dollar General's Employee Response Center to request an accommodation for her medical condition. Petitioner believed that hotline to be only for hourly employees, although Dollar General's written policies did not dictate any such restriction. When Petitioner returned to work in December 2007 after receiving treatment for her knee and back injuries, she experienced difficulties in standing for extended periods, in walking, and in climbing stairs. The pain she experienced was intense when engaging in any of these activities. She was able, despite the pain, to perform tasks of daily living, such as bathing and dressing herself, which allowed her to go to work. In addition to not being permitted to use the golf cart to perform her job, Petitioner had a broken chair in her office which made it more difficult for her to get relief when she was not walking the distribution center floor. She was first able to get a chair from the office next door to hers, and then Mr. Arrendell allowed her to bring in a chair from the conference room. Petitioner recalls many instances of interaction with her supervisors and managers about her physical limitations, including discussions about her inability to walk in a Christmas parade and her inability to stand up without leaning against a wall during a staff presentation she made. Dollar General's witnesses were not able to recall the substance of these interactions, except for remembering that Petitioner had an issue of some sort regarding the parade. Petitioner was suspended in early March 2008, pending an investigation, and her employment was ultimately terminated on March 11, 2008, for conduct unbecoming of an HR professional. No evidence was produced at hearing as to the circumstances leading to her dismissal. Petitioner did not have surgery related to her back or knee conditions until after she left the employ of Dollar General. She received pain management until she had surgery on her back. She received a consultation for her knee injury, but never had surgery performed. Upon leaving her employment, she had no insurance to cover her medical bills. The medical bills amounted to approximately $200,000, with the hospital bill for her surgery being $106,000 by itself. Petitioner has suffered financial losses which led her to borrow money for food, for her electric bill, losing her truck, losing her home insurance, and becoming three months behind on her mortgage. Petitioner has suffered emotionally as well. She suffers anxiety attacks and has had suicidal thoughts. Petitioner tried to return to work after leaving Dollar General. She secured a manager's job with Cato, a women's fashion store. The job did not require any heavy lifting or climbing of stairs. Her salary there was approximately half of her $43,000 salary at Dollar General. She worked at Cato for less than six months, earning gross pay of $11,600. She left when she suffered pain that required a trip to the emergency room which resulted in her having her back surgery. She did not return to work at Cato. Petitioner's only other earnings after leaving Dollar General were unemployment compensation benefits of $498 every two weeks, plus a $25 bonus from the federal stimulus package. Petitioner could have performed the essential functions of her employment if a reasonable accommodation had been made for her physical limitations. Dollar General has made accommodations for employees with physical limitations in the past, generally in the context of a workers' compensation injury.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that an unlawful employment practice occurred; that Respondent should have provided a reasonable accommodation for Petitioner's disability; awarding attorney's fees to Petitioner in accordance with a Title VII action and costs; and such other relief as the Commission shall deem appropriate. DONE AND ENTERED this 4th day of March, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2010. COPIES FURNISHED: Melanie A. Mucario, Esquire Mucario, McHugh & Dowdel, PLLC Post Office Box 781847 Orlando, Florida 32878-1847 Alva Cross Hughes, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32301
The Issue Whether Petitioner must be discharged from his position as a sanitation equipment operator II because he can no longer perform the essential functions of that job, with or without a reasonable accommodation.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that ECUA and its employees “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. For instance, Section B-11 provides that “[r]easonable accommodation is available to all disabled employees, where his or her disability affects the performance of job functions.” Section B-13 A (10) of the Manual requires ECUA employees to maintain all capabilities that are necessary for them to perform their assigned duties. Mr. Smith is 52 years old and initially worked for ECUA as a sanitation equipment operator from March 1997 through October 2002. He returned to his previous position at ECUA in January 2018. ECUA’s description of the sanitation equipment operator II position describes the “essential job functions” as follows: Operates a heavy duty, highly technical, and specially designed, one-person automated residential or commercial refuse collection truck equipped with a hydraulically operated container loading and waste packing mechanism in order to remove solid waste on an assigned collection route. Required to manually load yard trash, brush, or bulk waste when assigned to yard-trash duty. Operates a heavy duty residential rear-loading, semi-automated refuse collection truck equipped with a hydraulically operated container leading and waste packing mechanism in order to remove solid waste on an assigned collection route, while acting as crew leader for the two/three person assigned crew. Other “essential job functions” include activities such as manually picking up waste containers for disabled customers, climbing in and out of trucks, climbing stairs and ladders, and walking refuse containers to and from residences. As for the position’s physical requirements, the job description states that: While performing the essential functions of this job the employee is regularly required to sit, stand, or walk, use hands to finger, handle, or feel, reach with hands and arms, stoop, kneel, jump, step, or crouch, and lift and/or move up to 100 pounds and occasionally required to lift over 100 pounds. On June 25, 2019, Mr. Smith’s right knee collided with the rear door or bumper of a refuse truck while he was dumping refuse into a landfill. He sought medical attention that day, and the resulting “work status report” from the Sacred Heart Medical Group indicated he could return to work on June 26, 2019, but was prohibited from bending at the waist, stooping, kneeling, crawling, climbing, or squatting for the next eight days. ECUA learned of Mr. Smith’s injury on June 25, 2019, and he was promptly placed on leave pursuant to the Family and Medical Leave Act (“FMLA”). The standardized form memorializing that action advised Mr. Smith that “[y]ou will be required to present a fitness-for-duty certificate to be restored to employment.” Mr. Smith’s injured knee did not improve to a point at which he could return to his position as a sanitation equipment operator II, and he exhausted his 12 weeks of FMLA leave in September of 2019.1 At that point, ECUA’s Human Resources department placed him in two light-duty positions. The first was a temporary position counting inventory. That temporary position comes open for a week at the end of every ECUA fiscal year. After Mr. Smith completed that work, he was assigned to removing paper and plastic from ECUA’s composting operation. Mr. Smith’s tenure with the compost operation was brief because he was unable to walk or stand for long periods of time.2 1 Mr. Smith enjoyed working for ECUA and was interested in other employment opportunities there following his accident. Because he has 20 years of customer service experience and associates degrees in culinary management and hotel and restaurant management, Mr. Smith inquired about becoming a customer service representative. However, ECUA only had one such opening between March and November of 2019 and typically receives hundreds of applications when such a position comes open. Also, ECUA’s Human Resources department does not have the authority to reassign employees from one department to another. An employee interested in a position outside his or her department must apply for the position, and the department seeking to fill that opening makes the final decision as to who is hired. 2 The witnesses disagreed about how long Mr. Smith worked at the compost operation. Chiquita Payne, a senior human resources generalist at ECUA, and Tim Dean, ECUA’s lead compost technician, testified that Mr. Smith spent no more than a few days with the compost operation. Mr. Smith testified that he was there for 2.5 weeks. Mr. Smith never returned to his position as a sanitation equipment operator II. The medical restrictions prohibiting Mr. Smith from activities such as bending at the waist, stooping, kneeling, crawling, climbing, or squatting were not lifted. A note from Dr. Juliet De Campos, Mr. Smith’s attending physician at the Andrews Institute of Orthopedics & Sports Medicine, gave the following assessment of Mr. Smith: This 52-year-old male, truck driver had an impact injury to the anterior [of] the right knee in the patellofemoral area with a fall to the ground which may have twisted his knee. He had a laceration which healed uneventfully but had recurrent swelling and giving way of his knee. X-ray showed no fracture or loose body. MRI suggested abnormal MRI and medial meniscus. What was not read was a prepatellar bursitis and contusion. The contusion has resolved but the patient still has recurrent swelling, catching, and giving way. He has had physical therapy and a knee sleeve. Exam today shows findings consistent with medial meniscus tear but no ACL injury, atrophy. Prepatellar bursitis has resolved. He continues to have recurrent swelling and instability. He has been in physical therapy which has helped but [has not restored] normal function. Within a reasonable degree of medical certainty, this injury was caused by the job injury and treatment is necessary on that basis. The note continued by recommending that Mr. Smith have right knee surgery, and he ultimately did so on January 22, 2020. Following the surgery, Mr. Smith’s attending physician anticipated that Mr. Smith would have a “permanent impairment rating” and recommended that he do no stooping, squatting, or kneeling. The attending physician also recommended that Mr. Smith not lift anything over 10 pounds. Thus, the attending physician noted that “[o]ffice work would be appropriate” and counseled against Mr. Smith engaging in “commercial driving.” Section D-16 of the Manual contains a section on workers’ compensation providing that: Employees will return to work anytime they are medically able, with or without reasonable accommodations, within six (6) months of the date of injury. If after six (6) months from the date of injury the employee remains unable to perform the essential functions of his or her job, with or without reasonable accommodation, the employee’s department director, in consultation with the Human Resources Director, shall consider the employee’s prognosis and anticipated return-to- work date, the department’s present and projected workload and needs, and all other relevant factors in determining whether additional leave is appropriate under the circumstances. Should the employee remain unable to perform the essential functions of his or her job, with or without reasonable accommodation, after passage of six (6) months from the date of the injury and any extension thereof, if any, he or she shall retire, resign, or be terminated. Keith Kyles Sr., ECUA’s sanitations collections manager, issued a letter to Mr. Smith on December 3, 2019, stating the following: The most recent medical note in your file shows you were last seen by your treating physician, Dr. DeCampos, on November 19, 2019. Regarding your ability to return to work to perform the essential functions of your job, Dr. DeCampos stated, “No change – will need to schedule surgery.” Based on the above, it is clear you are unable to perform the essential functions of your position as a Sanitation Equipment Operator II. Moreover, a return to work date is unknown and there is no estimated date for your return to work at this time. Your continued absence, without a probable date of your return to work, creates a substantial hardship on the operational needs of the Sanitation Department and impairs ECUA’s ability to properly fulfill its responsibilities to its ratepayers. ECUA is also unaware of any reasonable accommodations which would enable you to perform the essential functions of your job. Moreover, ECUA cannot indefinitely hold your position open, as the duties which it entails simply must be performed. We have done everything reasonably possible to accommodate your work restrictions. However, we can no longer allow your continuing inability to perform the essential functions of your job, with or without a reasonable accommodation, to create a substantial hardship and impair ECUA’s ability to properly fulfill its business obligations. The letter closed by notifying Mr. Smith that Mr. Kyles had scheduled a predetermination hearing for December 10, 2019, so that Mr. Smith could have an opportunity to discuss whether he could perform the essential functions of a sanitation equipment operator II, with or without a reasonable accommodation. After the predetermination hearing, Mr. Kyles issued another letter to Mr. Smith on December 12, 2019, notifying him that his employment with ECUA had come to an end: During your hearing, you provided information that your knee surgery is scheduled for December 26, 2019. After surgery, you stated that you would be required to be on crutches for 10 days, followed by an additional eight weeks off work for recovery post-surgery. Based on the information provided, I have determined your continued inability to perform the essential functions of your position, with or without reasonable accommodation, creates a substantial hardship and impairs ECUA’s ability to properly fulfill its business obligations. Your inability to perform the essential functions of your job, with or without reasonable accommodations, constitutes a violation of Section B-13 A (10) . . . of ECUA’s Human Resources Manual Therefore, it is with regret I notify you that your employment with ECUA is hereby terminated effective close of business December 12, 2019. The preponderance of the evidence demonstrates that Mr. Smith cannot tolerate the physical demands associated with his former position as a sanitation equipment operator II, nor is there any reasonable accommodation that could be made that would allow him to perform the duties of a sanitation equipment operator II. Thus, Mr. Smith is not in compliance with Section B- 13 A (10) of the Manual. Mr. Smith did not meaningfully contest ECUA’s argument that he could no longer perform the physical tasks associated with a sanitation equipment operator II. Instead, Mr. Smith’s case focused on arguing that there are other, less demanding positions, within ECUA’s Sanitation Department and that assigning him to one of those positions would be a reasonable accommodation. However, Mr. Smith failed to prove that he was capable of handling the physical demands associated with those positions. For instance, Mr. Smith raised the possibility of being assigned to ECUA’s “miss truck.” ECUA’s standard refuse trucks occasionally miss refuse pick-ups due to inadvertence on the drivers’ part or residents’ failure to place their garbage on the curb in a timely manner. The miss truck is not as large as a typical refuse truck and is more automated. Therefore, miss truck duty is not as physically demanding as driving a typical refuse truck. Nevertheless, Mr. Kyles’s testimony demonstrated that miss truck duty is still a physically demanding position in that the miss truck driver must be capable of transporting large refuse cans to and from residences over all types of surfaces and distances. Because ECUA’s standard refuse trucks typically miss 40-50 refuse pickups a day, the preponderance of the evidence indicates that the physical demands associated with miss truck duty are not appropriate for someone with Mr. Smith’s physical limitations. Mr. Smith also raised the possibility of transporting ECUA’s fuel trailer. ECUA obtains fuel for its refuse trucks by transporting a fuel trailer to the Alabama-Florida line, acquiring the fuel, and transporting it back to ECUA. While this work is probably not as physically demanding as operating a refuse truck, Mr. Kyles testified that a fuel trailer operator would still have to satisfy the physical requirements associated with the sanitation equipment operator II position. Mr. Smith did not present any evidence to rebut Mr. Kyles’s testimony, and it is therefore accepted. Finally, Mr. Smith mentioned “monitoring piles” during his direct testimony. However, he presented no details about such duty. As a result, there is no competent, substantial evidence indicating that pile monitoring would be within his physical limitations, or that it would be a reasonable accommodation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the executive director of the Emerald Coast Utilities Authority find that James V. Smith, Sr., is no longer qualified to perform the functions of a sanitation equipment operator II and take such action as deemed appropriate under the pertinent provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2020. COPIES FURNISHED: Kimberly E. Scruggs Emerald Coast Utilities Authority Post Office Box 17089 Pensacola, Florida 32522-7089 James V. Smith, Sr. 901 Booker Street Cantonment, Florida 32533 Jessica L. Scholl, Esquire Moore, Hill & Westmoreland, P.A. Post Office Box 13290 Pensacola, Florida 32591 (eServed) Steve E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed) Cynthia Sutherland, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed)
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Respondent operates a residential program for young, homeless women who are pregnant or have infants. Respondent is required by applicable state law to maintain minimum staffing requirements or expose its license to disciplinary action. Respondent employed Petitioner as a residential staff assistant (RSA) from sometime in August 2002 until February 2, 2004. Petitioner worked five days a week during shift hours that varied during her employment. As an RSA, Petitioner's duties included assisting residents with care for their babies, babysitting, assisting residents with meal planning and budgeting, writing staff notes for parent and child, driving residents to and from medical appointments, and otherwise "assist mother and child in anyway." With the exception of excessive absences discussed hereinafter, it is undisputed that Petitioner was able to perform the essential functions of her job and did so satisfactorily to Respondent. Sometime in May 2003, Petitioner suffered a back injury while riding a horse. Petitioner suffered a herniated disc located at L5-S1. After the injury, Petitioner experienced right-side pain and sought treatment initially from chiropractic therapy and acupuncture. However, Petitioner's symptoms persisted. Petitioner sought medical treatment sometime prior to July 2003. An MRI conducted on July 21, 2003, diagnosed the herniated disc, and Petitioner subsequently underwent surgery on September 11, 2003, identified in the record as a laminectomy. By a physician's note on a prescription pad dated October 29, 2003, the treating physician authorized Petitioner to return to work on November 2, 2003. The physician's note did not prescribe any limitations for Petitioner. Petitioner returned to work on the prescribed date. On November 10, 2003, a director for Respondent required Petitioner and a co-worker to close the security gate to the facility. The electric motor for the gate was not functioning, and the two co-workers had to close a heavy security gate by manually pulling until the facility was secure. By a physician's note on a prescription pad dated November 14, 2003, the treating physician prescribed "light duty" for Petitioner. The light-duty restrictions were limited to "no pulling." A preponderance of evidence does not support a finding that Respondent required Petitioner to perform any "pulling" after November 10, 2003. Petitioner's back condition is an impairment within the meaning of the Americans with Disabilities Act, 42 U.S.C. Section 12112, et seq. (ADA), and the Florida Civil Rights Act, Chapter 760, et seq., Florida Statutes (2003) (FCRA). After surgery, Petitioner continued to experience pain in her right side and, due to inactivity, gained approximately 100 pounds. Petitioner's resulting impairment has limited her ability to work by impairing her ability to sit for long periods, pull, lift, bend to retrieve files from lower file drawers, and drive. Petitioner's impairment is permanent. The surgery did not eliminate Petitioner's impairment, and Petitioner is relegated to physical therapy and pain medication as the sole medical treatment for her condition. After more than two years of such treatment, Petitioner's impairment persists. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. Disputed requests for accommodations in the form of a particular chair that was comfortable for Petitioner and in the form of the location of files in higher drawers for easier access by Petitioner were not necessary for Petitioner to perform the essential functions of her job. It is undisputed that Petitioner satisfactorily performed her job duties without those accommodations. Petitioner's impairment caused her to be absent from work six of 20 workdays between November 2 and 30, 2003, and nine of 52 workdays between December 4, 2003, and February 2, 2004. The first six absences were excessive pursuant to Respondent's written Policy HR 103. In addition, Petitioner did not provide a supervisor with prior notice or cause of absences. However, each absence was required for Petitioner to either attend physical therapy or for Petitioner to recover from physical therapy. After the first absence, Respondent knew the causes of the absences. On December 3, 2003, Petitioner and Respondent executed a Corrective Action Plan (CAP) in which Petitioner agreed there would be no further unscheduled absences. Respondent agreed to reduce the time required in HR 103 for prior notice from eight to six hours. After executing the CAP, Petitioner had nine unscheduled absences during approximately 52 workdays between December 3, 2003, and February 2, 2004. Petitioner was unable to call in to her supervisors because of problems with telephones and voicemails, including those at the facility and cellular telephones maintained by supervisors. However, Petitioner knew of the telephone problem and knew her therapy schedule. A preponderance of evidence does not support a finding that Petitioner requested Respondent either to utilize an alternative method of communication or to arrange her work schedule to accommodate Petitioner's therapy schedule. On January 30, 2003, Respondent notified Petitioner that Respondent was changing Petitioner's employment status to "on-call" because Petitioner was unable to satisfy the attendance requirements of an RSA. Petitioner refused to accept the change in status due to the uncertainties of pay and the loss of benefits. On February 2, 2004, Respondent terminated Petitioner from her employment. Petitioner's impairment is neither a "disability" nor a "handicap" within the meaning of the ADA and FCRA, respectively. The impairment did not substantially limit Petitioner's ability to perform the major life activity of working. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. A preponderance of evidence does not support a finding that Petitioner's impairment precludes her from either a class of jobs or a broad range of jobs. Petitioner showed that she has made a reasonable effort to secure other employment without success. However, a preponderance of evidence does not support a finding that Petitioner's impairment is the cause of her inability to obtain employment. The Social Security Administration denied Petitioner's disability claim. The agency found that Petitioner has received treatment for her impairment and that the impairment does affect her ability to work. However, the agency found that Petitioner is "still capable of performing" the duties of an RSA.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not discriminate against Petitioner on the basis of a disability or handicap. DONE AND ENTERED this 31st of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: 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 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Phyllis J. Towzey, Esquire Law Office of Phyllis J. Towzey, P.A. The Kress Building, Suite 401 475 Central Avenue St. Petersburg, Florida 33701 Theresa A. Deeb, Esquire Deeb & Brainard, P.A. 5999 Central Avenue, Suite 202 St. Petersburg, Florida 33710
