The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Baypoint Hotel Associates operates a hotel at Marriott's Bay Point Resort in Panama City, Florida. Petitioner, Jerry D. Hicks, was employed by Respondent, Baypoint Hotel Associates, for approximately five and one Petitioner worked as a bell captain at Respondent's Panama City Beach, Florida, hotel for approximately two and one termination of his employment with Respondent. The bell captain's job required some heavy lifting. There was no dispute regarding the fact that Respondent is an employer within the meaning of the Florida Human Rights Act, and that all jurisdictional requirements have been met. Petitioner requested, and was granted, a leave of absence from his job effective December 17, 1991, in order to have back surgery to repair a herniated disc. By electing to take a leave of absence, Petitioner understood that he was not guaranteed his bell captain's job upon his return. In fact, he was not guaranteed any job upon his return, but would be given preference should there be an opening in any employment position for which he was qualified. There was no evidence that Respondent's leave of absence policy was not consistently applied or applied in a discriminatory manner. As a result of his surgery, Petitioner was unable to work from December 17, 1991, until April 9, 1992, when he was released by his doctor to return to work. No medical evidence was presented that Petitioner's "back problem" constituted a handicap or was perceived as a handicap by his employer. During Petitioner's absence from work, his job duties were reassigned to two assistant bell captains. After being released by his doctor to return to work, Petitioner informed Respondent's Human Resources Department, on or about the week of April 13, 1992, that he was ready to return to work, but that he would temporarily not be able to perform all of the duties, namely heavy lifting, of his former job as bell captain because of his surgery. After Petitioner requested to return to his job as a bell captain, Respondent's Director of Human Resources informed Petitioner that his former job was no longer available because Respondent's management had reassigned the bell captain's duties to two assistant bell captains and that Respondent did not plan to refill the job of bell captain under a reorganization of that service area. In lieu of returning Petitioner to his former job as bell captain, Respondent's human resource director informed Petitioner that he could interview for several available jobs at Respondent's hotel, including the jobs of telephone operator/supervisor, front desk clerk or reservation sales agent. Petitioner testified that he was unwilling to consider any job that paid less money than he was paid in his former job as a bell captain. By the time Petitioner informed Respondent's human resource director on April 28, 1992, that he was ready to interview for the reservation job; however, the reservations job had already been filled. Petitioner had waited an inordinate amount of time in advising Respondent of his interest in the reservations job and therefore lost his opportunity to apply. There was no evidence of any discrimination on the part of Respondent.
Recommendation It is accordingly, RECOMMENDED: Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October, 1993. DIANE CLEAVINGER 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1504 The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Jerry D. Hicks 1202 Parker Drive Panama City, Florida 32401 Michael D. Giles, Esquire 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, Alabama 35203-2602 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee Florida 32303-4149
The Issue Whether respondent discriminated against petitioner on account of her gender in terminating her employment?
Findings Of Fact Petitioner Audrey Owens began work in January of 1985 or thereabouts as the "service writer" at what was then Santa Rosa Datsun, an automobile dealership in or near Milton. Until she was fired in April of the same year, she had the job of dealing with customers who brought cars to be serviced. She wrote up what needed to be done, then gave the job to a mechanic to do. Several mechanics worked at the dealership, but on commission. By allocating work among them, the service writer determined what their income would be. A number of mechanics did not feel that she distributed the work equitably. This was no secret to parts and service manager George O. Brewer, the service writer's immediate supervisor; he saw a mechanic nearly burst into tears on account of it. He had complaints from numerous employees and from some customers about Ms. Owens behavior toward them. He also felt she should not wear blue jeans to work, and asked her to dress more formally. She persisted in wearing attire she was repeatedly told was inappropriate. In addition to the unresolved issue of dress, other frictions marred the relationship between Ms. Owens and Mr. Brewer. She pouted when he "gave her guidance," and failed to follow various instructions. Once he declined her request to install a rubber mat to stand on behind the counter on which she wrote service orders, and she responded that she would go over Mr. Brewer's head to George R. Kearney, who owned the dealership. It was in that context that Mr. Brewer told her he would fire her if she went to Mr. Kearney. All the while, the mechanics dissatisfaction and resentment grew. Eventually Mr. Brewer did fire her, giving her only a day's notice. She threw a pen at him. At hearing, Ms. Owens made various false and sensational charges against Mr. Brewer, although she did not testify that her termination was for failure to bestow sexual favors. She said she was fired when she asked Mr. Brewer why he had made a fool of her by yelling at her rudely, telling her to ask a mechanic to install seat belts in a Toyota truck. Jean Rubbards, petitioner's predecessor as service writer," left the job to spend more time with her son, when the child's father died. Mrs. Rubbards and Andrea Penten, who succeeded petitioner as service writer, testified that Mr. Brewer was demanding but fair, a good person to work for, and that their relationships with him lacked sexual overtones. When Mr. Brewer's supervisor, Mr. Kearney, bade Ms. Owens farewell, she did not report that she had been harassed sexually. In addition to Messrs. Brewer and Kearney, seven employees who worked at the dealership contemporaneously with Ms. Owens testified at the hearing, although at least one had since left for another job. Not one of them ever received any indication at the time that anybody at work had ever harassed her sexually.
Findings Of Fact Respondent was certified as a correctional officer by the Criminal Justice standards and Training Commission on February 17, 1988, and was issued certificate No. 03-87-502-08. On October 3, 1988, Metro-Dade Police Officer Jay Rogers was on duty and was dispatched to the Kendall Town and Country Mall to assist the Mall's security officers in clearing the parking lot after a night club closed. Officer Rogers walked up to a group of people, including the Respondent and asked them to finish saying good-bye and leave the parking lot. Officer Rogers then backed off and gave the remaining people in the lot about ten to fifteen minutes to finish saying good-bye. Officer Rogers again approached the group which included the Respondent, and asked that they leave. At that point, the Respondent replied to the officer's request with words to the effect of, "You wait, you can't make us leave, I'm looking for my keys." Officer Rogers asked the Respondent to find her keys, do whatever she needed to do, finish saying good-bye, and to please leave. The Respondent replied with words to the effect of, "I'll leave when I'm ready," and, "You're not telling me what to do." At about this point in the communication between Officer Rogers and the Respondent, an unidentified male approached the Respondent and said words to the effect of, "Come on, let's leave, the officer told us to leave, let's get out of here." The Respondent pushed the unidentified male away, and he got into a vehicle and left. Officer Rogers again asked the Respondent to leave. At some point in the interchange the Respondent replied, "What are you going to do, arrest me?" Eventually, Officer Rogers told the Respondent to leave or she would be arrested for trespassing after warning. The Respondent continued to say that she was not leaving. Officer Rogers thereupon advised the Respondent that she was under arrest for trespassing after warning and removed his handcuffs from his belt. At this point the Respondent became belligerent and hostile and told Officer Rogers, "You're not arresting me," and, "You'd better call for a lot of police, I'm not leaving." Officer Rogers requested backup units at this time. At about the same time, a man named Randall Rymes attempted to intervene between Officer Rogers and the Respondent. Officer Rogers told Mr. Rymes to leave and not interfere with the arrest. Mr. Rymes moved away and got into a two-door, black Isuzu automobile. As Officer Rogers attempted to place the handcuffs on the Respondent, she pulled her arm away and twisted her body. Officer Rogers continued with his efforts to arrest the Respondent and grabbed her left arm while asking her not to resist or struggle. The Respondent again pulled her left arm away and then struck Officer Rogers in the neck with her right fist. With Officer Rogers holding onto her arm, the Respondent pulled the officer towards the black Isuzu occupied by Mr. Rymes. Mr. Rymes drove the car beside the Respondent, opened the passenger door, and yelled to Respondent to get into the car. Mr. Rymes also grabbed the Respondent and attempted to help pull her into the car. At that point the Respondent kicked Officer Rogers in the left knee and as Officer Rogers continued to try to put the handcuffs on, the Respondent got partially into the car. Thereupon, Mr. Rymes started driving away with Officer Rogers running beside the automobile still holding onto the Respondent. Officer Rogers finally had to let go to avoid the risk of further injury. The vehicle driven by Mr. Rymes continued for several hundred feet until it was blocked by a vehicle driven by another law enforcement officer. Officer Rogers ran to the automobile driven by Mr. Rymes, removed the Respondent from the car, handcuffed her, and placed her in a police vehicle. Although Respondent had been drinking alcoholic beverages, she was not intoxicated at the time of the events described above. The Respondent has never been arrested or charged with a crime other than in the incident described above. /1
Recommendation Based on the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4), Florida Administrative Code, and imposing a penalty of probationary status for one year conditioned on the Respondent not engaging in any conduct during the probationary period which constitutes failure to maintain good moral character within the meaning of Rule 11B-27.0011(4), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of May 1990. MICHAEL M. PARRISH 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 1st of day of May 1990.
The Issue Whether Honda of Bay County/Volkswagen of Panama City (Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes,1 by discriminating against Maurice Hargrove (Petitioner) because of his disability and race.
Findings Of Fact Petitioner, Maurice Hargrove, is an individual of African-American descent, who resides in Chipley, Florida. Respondent, Honda of Bay County and Volkswagen of Panama City are automobile dealerships located in Panama City, Florida. Petitioner alleges that he was not hired by Respondent because of his race and because of a disability. Petitioner’s alleged disability relates to his wearing a supportive brace on one of his legs at the time he applied for the job position with Respondent. Petitioner first made contact with Respondent’s business after seeing a “now hiring” sign in front of Respondent’s facility in Panama City. According to Petitioner, after seeing the sign, he walked into the building and filled out a job application. Petitioner could not recall when this occurred, but he believed it was sometime prior to Hurricane Michael, which struck the Panama City area in October 2018. Exact time frames and sequence of events as to what happened after Petitioner initially filled out the application are less than clear because Petitioner repeatedly changed his testimony during the final hearing. Nevertheless, the findings set forth below, derived from the combined testimonies of Petitioner and Respondent’s manager, Mr. Boatwright, detail the pertinent facts. Petitioner initially inquired about a job as a service technician working on vehicles at the dealership. When Petitioner met with Respondent’s manager, however, Mr. Boatwright told Petitioner that he did not need a service technician at the time. Further, Petitioner had no prior experience working on vehicles. Mr. Boatwright further informed Petitioner that, although he did not need a service technician, he needed a shuttle driver for the dealership. According to Petitioner, because of his conversation with Mr. Boatwright, he marked through “service tech” on the job application and wrote in “driver.” Mr. Boatwright’s testimony, and sometimes Petitioner’s testimony, was that when Mr. Boatwright first met Petitioner, Mr. Boatwright noticed a brace on Petitioner’s leg and asked Petitioner what was the situation with the brace. Petitioner told Mr. Boatwright that he had injured his leg in a workplace fall for which he received workers’ compensation, but that he was no longer on workers’ compensation. 2 Mr. Boatwright asked Petitioner to obtain a note from a doctor clearing Petitioner to work, to which Petitioner agreed. At some point, Petitioner returned to Respondent’s dealership with a doctor’s note clearing him to work with no restrictions. Mr. Boatwright interviewed Petitioner for the driver position and said he would contact 2 Petitioner’s statements regarding his leg brace were inconsistent. Petitioner testified that he wears a brace on one of his legs for support after surgery for a broken leg. Petitioner also testified that he broke his leg “just walking one day in the neighborhood, and I turned, and it just gave out on me.” According to Mr. Boatwright, Petitioner told him when he was applying for the job that Petitioner had fallen off a ladder when working as a painter and received workers’ compensation for a leg injury. Petitioner did not take issue with this version of the events during his questioning of Mr. Boatwright. Petitioner further testified that he did not remember the year he broke his leg, when he had surgery on his leg, or when his doctor advised him to wear the brace. Regardless of the origin of the leg condition, Petitioner testified that the leg did not restrict him in any way. Petitioner about the job later. Both Petitioner and Mr. Boatwright believed that the interview went well. After interviewing ten candidates for the driver position, Mr. Boatwright believed that, based upon Petitioner’s maturity level as compared to other applicants, Petitioner was the best candidate. After Petitioner was interviewed, Mr. Boatwright’s bosses decided not to fill the driver position, but, instead, decided to have the driving duties shared amongst existing employees. At the final hearing, Mr. Boatwright recalled communicating this to Petitioner, but that if he did not, he offered his apologies. Petitioner first testified that Mr. Boatwright contacted him and told him that he would not be hired, describing a conversation with Mr. Boatwright in which Petitioner expressed his sadness with Mr. Boatwright about not getting the job. Later in the hearing, Petitioner said he did not ever hear back from Mr. Boatwright, and that it was Respondent’s attorney who advised him that Respondent had decided not to fill the driver position. Regardless of when and how Petitioner was informed that the job position was not being filled, Respondent chose not to fill the shuttle driver position. As of the date of the final hearing, well over a year after Petitioner applied for the job, Respondent had still not filled the driver position, opting instead to share driving duties amongst the existing employees. Petitioner presented no evidence that his race played any part in the decision not to hire him. His sole offering on this point was the fact of his race. Petitioner’s disability discrimination claim was based on the facts that Mr. Boatwright noticed the brace on his leg and asked him to get a doctor’s note clearing him to work. Although Petitioner testified late in the hearing that Mr. Boatwright said something to him about not feeling like he would be able to do the job, Petitioner’s statement was made after several accounts of conversations with Mr. Boatwright in which Petitioner never made this allegation. When asked about this new allegation on cross-examination, Petitioner could provide no details, quickly trailed off topic, and asked “Say what?” There was no allegation in his Charge of Discrimination or his Petition for Relief with the Division of Administrative Hearings that alleges that Mr. Boatwright suggested that Petitioner could not do the driver job. Considering these factors, as well as the inconsistency with Petitioner’s prior recollection that his interview with Mr. Boatwright went well, it is found that Petitioner’s late-asserted allegation that Mr. Boatwright said something to him about feeling that Petitioner could not do the job is untimely and is otherwise not credited. Further, Petitioner testified that his leg did not restrict him in any way, and failed to present evidence that he had a medical condition that substantially impaired any life activity.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S James H. Peterson, III 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 17th day of March, 2020. COPIES FURNISHED: Maurice Hargrove 1672 Sunny Hills Boulevard Chipley, Florida 32428 Russell F. Van Sickle, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32591 (eServed) Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, by discriminating against Petitioner on the basis of handicap or disability, and if so, what is the appropriate remedy.
Findings Of Fact North Florida Sales Company (North Florida), the Respondent in this case, is a beer and ale wholesaler that does business in Florida and employs over 15 people. Window Mitchell, Petitioner in this case, began working at North Florida as a custodian in the maintenance department on June 22, 2009. His normal schedule at North Florida was Monday through Friday. Near the time he was hired, Petitioner received a copy of Respondent's "Employee Information Handbook." The handbook advised Petitioner of North Florida's "open door" policy that permitted employees to take any complaints or problems directly to the Human Resources Manager, the General Manager, or the President. It further advised employees that it was North Florida policy to treat all employees equally without regard to race, color, religion, sex, age, marital status, disability, or national origin. It stated that any violation of North Florida's equal opportunity policies must be reported immediately to the Human Resources Manager or General Manager without delay. The employee handbook also advised Petitioner of North Florida's policies on attendance. It required employees to give advance notice of any absence or lateness, and noted that employees who fail to maintain an acceptable attendance record would be subject to disciplinary action. On September 10, 2009, Petitioner received an Employee Warning Report noting that Petitioner had missed six days of work during his 90-day probationary period. The report stated that this amount of absenteeism was considered excessive and that immediate improvement was expected. It was signed by Petitioner and Petitioner's supervisor. On November 10, 2009, Petitioner received another Employee Warning Report. It stated that Petitioner's attendance continued to be a problem and that it was creating a burden on the maintenance department. It stated that further incidents of absenteeism, or arriving late or leaving early, would result in termination. It was signed by Petitioner, Petitioner's supervisor, and Margaret Lombardi, Human Resources Manager. There is no evidence that Petitioner ever received any further "Employee Warning Reports." On June 3, 2010, Petitioner received an Employee Performance Review. In his review, Petitioner was given a rating of "3" out of "10" on "dependability." The comment under that heading indicated that Petitioner was "out from work too many days." Petitioner received two other "3"s on his evaluation and received no evaluation above a "5" in any area. In the final section, entitled "Objectives for the Next Review Period," the first of two objectives listed was "keep all curbs in warehouse painted." The second was, "try to be at work all of the time." On July 17, 2010, Petitioner was returning from a barbecue with four friends. He testified that he had not been drinking. The car he was driving ran into a pole head-on. Petitioner's knee and leg hurt and became badly swollen. He had "little chunks of meat" missing from his left elbow and forearm. He was seen by an emergency doctor at Baptist Medical Center about 9:45 p.m., released, and given discharge instructions. On July 19 or 20, 2010, Ms. Lombardi received a paper entitled Adult Discharge Instructions on a Baptist Health form dated July 17, 2010. It indicated that Petitioner had been in the vehicle collision and had been treated for abrasions and a contusion on his right knee. In the instructions, Petitioner was told to take medications as instructed, follow up with the doctor in two days, and return to the emergency room for worsening symptoms. A box was checked indicating "no work for 2 days." Ms. Lombardi interpreted the note as excusing Petitioner from work on Sunday and Monday, and therefore expected Petitioner to return to work on Tuesday, July 20, 2010. When Petitioner did not return to work on Tuesday, Ms. Lombardi called him. Petitioner said he did not realize that the doctor's note had excused him for only two days. Ms. Lombardi told Petitioner that it did, and she told him he needed to come to work that day. Petitioner complained that his arm and leg were still hurting. Petitioner said he would return to work that afternoon, but did not. Petitioner did not come to work on Wednesday, July 21, 2010. Petitioner left a message for Ms. Lombardi and she called him about 10 a.m. Petitioner told Ms. Lombardi that he had gone to the doctor the day before and had another note excusing him from work. Ms. Lombardi asked Petitioner why he had not called her or the supervisor to let them know. Petitioner stated that he had called the supervisor, but had been unable to reach him and had been asked to call back. Petitioner said he did not call back because he did not get out of the doctor's office until after 5:00 pm. Ms. Lombardi directed him to have the note sent to her by facsimile transmission (fax). Ms. Lombardi received a form faxed from Baptist Health entitled "Discharge Instruction" about 4:38 p.m. that day, as indicated in her note prepared for Petitioner's file. It had a subtitle of "Work Release Form." The form stated that Petitioner had been seen again on July 21, 2010, and that he could return to work on July 25, 2010. The form had date and time blocks indicating "July 21, 2010" and "4:31 p.m." Ms. Lombardi testified that the form from Baptist Health indicated that Petitioner had been seen by a doctor that same day and that "I received it shortly after-–there was a discharge time on it." On the following day, July 22, 2010, Ms. Lombardi again called Petitioner. When asked about an excuse from the doctor whom Petitioner had seen on July 20, 2010, Petitioner replied, "Oh, that was a different doctor." Petitioner said that the excuse from the visit on July 21, 2010, was from the same doctor he saw on July 17, 2010. Ms. Lombardi's file note stated that this was "the second time that Mitchell has incurred absences with inconsistency in the facts surrounding that absence." Petitioner gave evasive and inconsistent testimony at hearing about whether there was ever a third doctor's excuse, in addition to the excuses of July 17, 2010 and July 21, 2010. Any of Petitioner's testimony suggesting that there was third excuse was not credible. There were only two doctor's excuses. On July 22, 2010, Ms. Lombardi filled out a "Status/Payroll Change Report" that discharged Petitioner from employment at North Florida. In the "Reason" portion of the form, Ms. Lombardi wrote, "Excessive absenteeism and multiple incidences of inconsistent facts surrounding his absences." Petitioner was immediately notified by telephone that his employment had been terminated. In that conversation, Petitioner asked Ms. Lombardi why he was being discharged. Ms. Lombardi told Petitioner that the basis for his discharge was his poor attendance. Petitioner was recovering from the injuries he received in the accident for about a week-and-a-half. After that he was fully recovered. Petitioner's substantial interests are affected by Respondent's decision to discharge him. It has been difficult to find work in the depressed economy and Petitioner has financial responsibilities. Petitioner has three children. Petitioner was employed by Wage Solutions, working the warehouse at Liberty Furniture, unloading furniture and bringing it to the showroom from March 2011 to August 2011. Petitioner lost that job because that business closed. At the time of hearing Petitioner was not employed. Petitioner went to the Florida Commission on Human Relations. He did not complain to them that he had been discriminated against on the basis of a handicap or disability. He just wanted an investigation into his discharge because he believed he had been terminated unfairly. He testified: Doing – I guess, telling my side of the story to file whatever they wanted me to file. I didn't even know it was doing – about the disability or not. I didn't know they signed me up under that. The only thing I thought, they were going to investigate to see why I got terminated. * * * And from there, I guess that – that's it. I knew I had to come to court from there, so I was just really based on that. I knew I had to show up to court for – I wasn't looking for all of this to come down to this. The only thing – I just wanted to know why I got fired, because I – about my attendance or being absent, but I had excuses for them. On October 12, 2011, Petitioner filed a Petition for Relief against Respondent claiming an unlawful employment practice, alleging that he was wrongfully fired because of a mishap, which was referred to the Division of Administrative Hearings the same day.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 May, 2012.
The Issue Whether Respondent wrongfully failed or refused to hire Petitioner because of her physical handicap, obesity, if she was otherwise qualified, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Rose E. Blake, at all time relevant, is a Certified Nurses Assistant in the State of Florida. In the summer of 1991, Petitioner was a 45 year old female, whose height was 5 feet, 4 inches and she weighed in excess of 250 pounds. Respondent, Sunset Point Nursing Home, is a health care facility that provides nursing home care for patients, and employs more than five employees. On March 11, 1991, Petitioner completed an application for the position of Nurses Aide at Respondent's facility. Petitioner's employment application made no claim of "handicap" of obesity or otherwise. Prior to being interviewed, Petitioner withdrew her name from consideration, and accepted a position at another health care facility. On July 11, 1991, Petitioner contacted Respondent's personnel department, and asked that her application for the nurse's aide position be reactivated. They did so and Petitioner was interviewed for a position on July 15, 1991. On July 15, 1991, she was informed that she was accepted for the position of nurse's aide, but would be required to undergo pre-employment orientation and a physical examination before she could start work in the next few days. On July 16, 1991, she went through a two hour orientation training at Respondent's facility which was conducted by Respondent's staff. On the same day, July 16, 1991, Petitioner underwent a physical examination at the office of a Dr. Johnson, a physician that Petitioner was referred to at Lakeside Medical Center. On the following day, after receiving a message from the physicians office, Helen Mills, Respondent's Assistant Director of Nursing, talked with Dr. Johnson on the telephone. After performing a physical examination, he recommended against hiring Petitioner on the basis that she was susceptible to developing low back problems, due to her obesity. Based on this conversation alone, Mills called Petitioner, and withdrew her offer of employment at Respondent's facility as a CNA. The position of CNA is physically very demanding. A CNA is required to lift patients, transfer them from bed to chair, bed to bathroom, bed to wheelchair. There is a great deal of stooping, bending, and lifting involved throughout a CNA's shift. A CNA is also required to feed patients, turn and position them in their beds. A CNA is also required to be on their feet constantly throughout her shift. Petitioner had successfully performed the functions of a CNA for 27 years, with the last ten years having been certified by the State of Florida. During this period of time, Petitioner has weighed in excess of 200 pounds, and her weight has not impaired her functioning successfully as a CNA. There was no expert medical evidence offered to establish whether Petitioner's obesity is endogenous (metabolic) or exogenous (caused by overeating). There was no competent evidence offered upon which to find Petitioner's obesity is physiological in origin or that it is permanent. Petitioner did not offer evidence to show damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered holding that: The Petitioner was discriminated against on the basis of her handicap when Respondent failed or refused to hire her; The Petitioner receive any damages she has suffered in accordance with applicable law. Respondent be ordered to cease and desist said discriminatory practices. DONE and ENTERED this 29th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Neither party submitted proposed findings of fact or conclusions of law. COPIES FURNISHED: Ronald W. Stutzman Qualified Representative Vice President for Human Resources Harborside Healthcare 470 Atlantic Avenue Boston, Ma. 02210 Ms. Rose E. Blake P.O. Box 616 Dunedin, Florida 34698 City of Clearwater Legal Department P.O. Box 4748 Clearwater, Florida 34618-4748 Dana Baird, Esquire Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
