Findings Of Fact The findings of fact stipulated to by the parties are as follows: The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985. The Respondent filed a timely Notice of Appeal of the foregoing Final Order. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion." The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
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 granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact Respondent, Alberto Correa (Correa) holds a Class "D" Security Officer License, Number D93-12073. On March 23, 1995, Correa was employed at the Pan American Hospital in Miami, Florida, in the capacities of maintenance man, electrician, and mechanic. On March 23, 1995, Rafael Burgos (Burgos) was an employee of Pan American Hospital. His duties included managing materials for the surgical department. On March 23, 1995, Burgos entered a computer request to Correa to put up a bulletin board in the surgical department. The board was needed to post the schedules for the surgical staff. Correa was the only mechanic on duty that day at the hospital. Correa had been assigned by his supervisor to perform tasks in the kitchen. After seeing the request on the computer, Correa telephoned the surgery room to determine if the request was an emergency. Correa determined that the work in the kitchen was a higher priority than the installation of a bulletin board. Correa continued to work in the kitchen. Later, he went to the surgery room to see what needed to be done. Burgos asked Correa to put up the bulletin board. Correa indicated that putting up the bulletin board was not an emergency which took precedence over the work in the kitchen. Correa refused to do the job and told Burgos that he would let his supervisor know that the bulletin board needed to be installed. Burgos asked Correa to give him some tools so that he could install the bulletin board himself since Correa was not going to do the job. Correa refused to give Burgos any tools and began to raise his voice at Burgos. At the time of the incident Correa was standing in the double-doorway leading into the surgical room. Correa asked Burgos to step out into the hallway. Burgos went to the double doors. When he got to the doorway he observed Correa with an open knife in his hand. Correa told Burgos not to come any closer or he would cut him to pieces. Correa lunged the knife at Burgos. Burgos never threatened Correa at any time before or during the incident. Burgos did not have a weapon at any time during the incident, and he made no threatening movements or gestures indicating that he was reaching for a concealed weapon. Correa contends that a fellow coworker told Burgos to shoot Correa and then Burgos got up and started coming towards Correa. Having judged the credibility of the witnesses, I find that a coworker did not tell Burgos to shoot Correa.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gilberto Correa violated Section 493.6118(1)(j), Florida Statutes, and revoking his Class "D" Security Officer Licence. DONE AND ENTERED this 11th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 11th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2019 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Paragraphs 1-22: Accepted in substance. COPIES FURNISHED: Douglas D. Sunshine Assistant General Counsel Department of State, Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Gilberto Correa 1441 Southwest 2nd Street, Number 4 Miami, Florida 33135 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0450
