The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a thirty-one (31) year old male who has been a diabetic for approximately twenty-five (25) years and during this time has always taken his insulin as prescribed. Petitioner was hired by Respondent as a Correctional Officer 1 (Recreational) and assigned to work at the Florida Correctional Institution at Lowell, Florida (FCI). Petitioner began his employment with Respondent effective April 22, 1985. FCI is a facility for housing female felony offenders who require minimum to close security. The grounds of FCI consist of approximately eight hundred (800) acres, of which one hundred (100) acres is within the compound. FCI houses approximately six hundred seventy-five (675) inmates. FCI has a staff of two hundred twenty (220) employees, however, on weekends and on the 12 midnight to 8:00 a.m. shift, as few as eighteen (18) staff members may be on duty. Petitioner was responsible for maintaining the care, custody and control of the inmates involved in recreational activities and his duties would require his response to emergency situations to prevent escape or suppress inmate disorders. Petitioner advised Respondent prior to being hired that he was diabetic but that his diabetes was kept well under control and presented no problem and that he had sight in only one (1) eye. From February 27, 1984, until Petitioner moved to Florida in April, 1985, Petitioner was being treated for his diabetes in West Virginia by Dr. John P. Griffiths. During this period, Petitioner consulted Dr. Griffiths regarding "blackouts". Although Dr. Griffiths mentioned Petitioner's "kidney problem", he did not diagnose the "kidney problem" as being the potential cause of the Petitioner's "blackouts" and did not suggest a way for Petitioner to avoid having these "blackouts" in the future. Petitioner suffered several "blackouts" while living in West Virginia before accepting employment with Respondent, the last one being approximately a year before moving to Florida. These "blackouts" resulted in Petitioner being taken to the hospital emergency room for treatment. Petitioner did not make Respondent aware of these "blackouts" at the time he applied and was accepted for employment by the Respondent. At the beginning of his employment, Petitioner was required to have a complete physical examination which was administered by Dr. A. Rodriquez, Chief Medical Officer, FCI, and his staff. Among the tests administered was a urinalysis which revealed an abnormal level of protein in the urine. Being concerned over the level of protein in Petitioner's urine, Dr. Rodriquez requested Lester Dinkins, Personnel Manager, FCI, to advise Petitioner to see a private physician in this regard. About a week later, Petitioner consulted Dr. Rodriquez who explained the test results and advised Petitioner to see a nephrologist (kidney specialist). On May 2, 1985, Petitioner was examined by Dr. James J. Mahoney, private physician in Gainesville, Florida. Dr. Mahoney did not discuss a possible "kidney problem" or tell Petitioner why there was excess protein in his urine. Dr. Mahoney recommended that Petitioner continue on his blood pressure medication, have his blood pressure checked once a day so that medication adjustments could be made as needed, to see an opthamologist, and to keep check on his diabetes. FCI does not provide non-emergency health care for staff, therefore, Petitioner was unable to get his blood pressure checked by the FCI medical staff and did not get it checked by any outside private facility. Petitioner scheduled a second appointment with Dr. Mahoney which was rescheduled by Dr. Mahoney for a later date. Petitioner was dismissed by Respondent before the second appointment and, therefore, he did not keep the second appointment. On May 3, 1985, the day after Petitioner was examined by Dr. Mahoney, he suffered his first "blackout" while on the job. Petitioner was taken to the emergency room at Monroe Regional Medical Center where the medical personnel raised his glucose level and restored him to consciousness. After Petitioner regained consciousness he refused any further medical treatment. When Petitioner returned to FCI after his first "blackout", he was told to take Saturday and Sunday off and report to work on Monday. On Monday, Petitioner assured George Denman, Superintendent of FCI, that he could and would prevent another "blackout". Although Mr. Denman was concerned about Petitioner's ability to discharge his duties properly, he nevertheless allowed Petitioner to return to work on Petitioner's assurance that he could control the "blackouts". On May 9, 1985, Dr. Mahoney advised Respondent by letter that Petitioner's present condition should not interfere with his employment if Petitioner followed Dr. Mahoney's recommendations set out in Finding of Fact 10. There is sufficient evidence to show that Petitioner did not follow Dr. Mahoney's advice. Petitioner "blacked out" again on May 18, 1985, while he was preparing for a softball game between inmates of FCI and another institution. Petitioner was transported to the FCI infirmary and from there to Harold's Clinic and from there to another hospital. This "blackout" occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI. Petitioner had keys to various parts of the institution in his possession at this time. Once Petitioner was stabilized after the "blackout", he was instructed to take Sunday off and report in on Monday. On Monday, he reported first to Lester Dinkins and then to Mr. Denman who informed him that he would be dismissed on Friday, May 24, 1986 because of Petitioner's inability to perform his duty to maintain proper care, custody and control of the inmates which placed the security of the institution in jeopardy. The prison superintendent is authorized to allow employees up to three (3) weeks leave without pay under extenuating circumstances, however, for a "brand new" employee, such as Petitioner, it would be exceptional. Leave without pay was not offered to Petitioner at any time before his dismissal to seek help with the problem of "blackouts" because Petitioner assured Mr. Denman that he had his problem under control. Additionally, Petitioner did not request any time off to seek help with his problem of "blackouts". Although Petitioner thought his "blackouts" were related to a serious automobile accident that he was involved in during 1972, there was no medical evidence introduced at the hearing to support Petitioner's theory. At the time Petitioner was dismissed, both parties were aware of Petitioner's kidney problem, but neither knew the exact cause or if the kidney problem was related to the "blackouts" or to the diabetes. Although Petitioner would have accepted other alternatives to dismissal, Respondent had no job openings for which Petitioner qualified for at the time. Lester Dinkins did inquire with other agencies and found a job as a Recreational Therapist with the Department of Health and Rehabilitative Services at the Gulf Coast Center in Ft. Myers, Florida. Petitioner rejected that job on the basis of being unable to cope with the emotional stress of working with mentally and physically handicapped individuals, and that by moving he would lose Dr. Donald Mars as his primary care physician. In June, 1985, Dr. Mars, Assistant Professor of Medicine, Division of Nephrology and Hypertension, Shands Teaching Hospital, Gainesville, Florida, diagnosed the cause of Petitioner's "blackouts" as the result of Petitioner's continued use of insulin adversely affecting his kidneys so that protein was being excreted with Petitioner's urine instead of being used by his body which caused episodes of hypoglycemia (low blood sugar) and, since corrective measures were not taken by Petitioner, "blackouts" resulted. A diabetic can take a measurement of the glucose (sugar) level in his body by using the "finger stick" test. This test can be performed in approximately two (2) minutes, and if there is an indication of a low level of glucose, the diabetic can correct the condition by eating some form of carbohydrate, such as bread or pastry, for quick energy. A diabetic can avoid "blackout's" by performing the required number of "finger stick" tests each day and properly responding to the results. In Petitioner's case, it would require two (2) to four (4) tests each day which could be performed on the job. There are other diabetics on the staff at FCI. Petitioner's job performance, other than during the time of the "blackouts", was satisfactory. Petitioner's "blackouts" put the security of FCI in jeopardy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner, Stephen Retton. Respectfully submitted and entered this 10th day of September, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0975 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Findings of Fact 1 and 2 covered in background material. 3.-4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 6. 6.-7. Adopted in Finding of Fact 1. 8.-14. Adopted in Finding of Fact 7. 15. Adopted in Finding of Fact 8. 16.-18. Adopted in Finding of Fact 9. 19.-21. Adopted in Finding of Fact 10. 22. Rejected as immaterial and irrelevant. 23.-24. Adopted in Finding of Fact 10. 25. Rejected as immaterial and irrelevant. 26.-27. Adopted in Finding of Fact 11. 28. Adopted in Finding of Fact 18. 29.-32. Adopted in Finding of Fact 12. 33. Adopted in Finding of Fact 8. 34. Adopted in Finding of Fact 13. 35.-36. Adopted in Finding of Fact 17. 37. 38. Rejected as not comporting evidence in the record. Adopted in Finding of Fact to the substantial 15. competent 39. Adopted in Finding of Fact 16. 40. Adopted in Finding of Fact 20 as modified. 41.-47. Adopted in Finding of Fact 21. 48.-52. Adopted in Finding of Fact 22. 53. Rejected as immaterial and irrelevant. 54.-56. Adopted in Finding of Fact 20. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Findings of Fact 7 and 8. 7. Adopted in Findings of Fact 5 and 23. 8.-9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 12 as modified. 12. Adopted in Finding of Fact 12 as modified. 13. Adopted in Finding of Fact 13. 14. Adopted in Findings of Fact 13 and 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 16. COPIES FURNISHED: Thomas R. Williams, Esquire 359 N.E. First Street Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Ernest L. Reddick, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 3230 =================================================================
