Findings Of Fact Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service. DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1986. COPIES FURNISHED: Gilda A. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John A. Fritz 301 N.W. 51 Court Fort Lauderdale, Florida 33309 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee Florida 32301
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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 the Petition for Relief. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2007.
The Issue Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70"). Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
Findings Of Fact Petitioner, Richard Mastromarino, is a resident of St. Petersburg, Pinellas County, Florida. Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70. Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license. After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist. On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.” Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA. Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job. The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job. Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment. Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time. The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals. Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels. Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would not have been able to perform the job of Customer Service Representative. Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience. Petitioner was unable to perform these functions. After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards. Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs. Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work. In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave, Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy. After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return. Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner. The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
Recommendation Based on the foregoing, It is RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 2002. COPIES FURNISHED: Craig L. Berman, Esquire Berman Law Firm, P. A. 360 Central Avenue Suite 1260 St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 18, 2004.1/
Findings Of Fact Petitioner is an African-American female who began employment with the Alachua County Sheriff's Office (ACSO) on January 2, 2001. Respondent is an employer as contemplated by Chapter 760, Florida Statutes. Petitioner was hired and worked during her employment with Respondent as a Clerical Technician I in the county jail. The position description for Clerical Technician I includes the following: WORK CONDITIONS: Normal office environment. Shift work, including weekends and holidays. Work entails sitting for long periods, bending, light to moderate lifting, pushing, pulling, lifting and carrying. PHYSICAL REQUIREMENTS: Sit for long periods Stand for moderate periods See at a normal range or with accommodation Hear at a normal range or with accommodation Speak, read, and write English understandably Ambulate independently Bend, squat, kneel and crawl Lift/carry 25+ pounds Manual dexterity The job description also includes the following under the heading, Special Requirements: "Ability to work shift work. May be required to work weekends or holidays." Allegations Related to Disability On September 4, 2003, Petitioner sustained a back injury while on the job from carrying a large coffee pot full of water. She completed an incident form regarding her injury. At the instruction of her immediate supervisor, Pamela Cuffie, Petitioner was seen by a doctor, who completed a health and work status report dated September 9, 2003. This report placed temporary work restrictions on Petitioner. Initially, the work restrictions were: that she should not perform physical force restraints/combat; should not run, crawl, swim, climb a ladder; drag or push heavy objects; and limited Petitioner to lifting not more than 10 pounds. The diagnosis was "lumbar sprain." On September 12, 2003, Sheriff Stephen Oelrich sent a memorandum to Petitioner placing her on Temporary Restricted Duty. The memorandum set forth conditions of her restricted duty: You have provided a Health and Work Status Report signed by your physician indicating that as of September 10, 2003, you may return to work but will be unable to fulfill one or more of the essential functions of your appointment as a Clerical Technician I. Therefore, effective September 10, 2003, you are hereby placed on Temporary Restricted Duty.... While on Temporary Restricted Duty, the following conditions shall apply: You shall abide by those physical restrictions as noted by your physician on the Health and Work Status Report dated 09/09/03. Your Temporary Restricted Duty dress will be at the discretion of the assigned Division Commander. You must obtain the approval of your certifying physician, the Human Resources Bureau and your Division Commander prior to engaging or continuing in Secondary Employment. You shall not work overtime. You will not be eligible for transfer, special assignment, or promotion. An assignment to Temporary Restricted Duty cannot exceed twelve months. If you are unable to return to full, unrestricted duties as a Clerical Technician I at that time, you will be subject to reclassification to a position within your capabilities, and to which you are qualified, or to termination. On September 16, 2003, Petitioner's physician completed a second health and work status report, continuing her initial temporary work restrictions and adding that Petitioner should not operate duty weapons or vibrating tools and should not perform stressful work. The report also reflected that Petitioner will start physical therapy. On October 13, 2003, Petitioner's physician completed a third health and work status report and continuing her previous restrictions and noted that Petitioner would continue physical therapy and schedule a lumbar MRI. Unlike the two previous reports, the diagnosis was "lumbar disc disease." On October 22, 2003, Petitioner's physician completed a fourth health and work status report which continued the previous restrictions adding that Petitioner should not walk 50 percent of the time; that Petitioner should not do work requiring the use of both feet; that work shifts should be limited to eight-hour shifts; and that Petitioner should get work boots. The diagnosis was described as "lumbar sprain/lumbar disc disease." Following the October 22, 2003, health and work status report, Sherry Larson, Human Resources Bureau Chief for Respondent, called the doctor who completed the health and work status reports, Dr. Urban, and inquired as to the need of work boots, especially in light of his recommendation about not using both feet. Ms. Larson informed Dr. Urban that Petitioner performed clerical duties, not law enforcements duties. Following this telephone conversation, Ms. Larson wrote a note on the bottom of the October 22, 2003, report, "Per Dr. Urban, Ms. Johnson can do office work. No use of both feet is limited to no cycling. Work shift 8 hours. No need for work boots." The next two health and work status reports were completed on November 6, and December 2, 2003, which generally referenced the same restrictions but no longer referenced the need for work boots, removed the restriction that she should not use both feet, and added a restriction that Petitioner should not climb stairs 80 percent of the time. Dr. Urban referred Petitioner to Dr. DePaz. Dr. DePaz examined Petitioner on February 24, 2004. He completed a health and work status report on which he wrote, "Light activities-no repetitious motion of the back." He noted that Petitioner should not lift over 25 pounds and included the notation, "Ability to make position changes as needed." The word "repetitive" is written on the report, but the placement of the word "repetitive" is ambiguous as to what it modifies. All of the health and work status reports signed by Dr. Urban noted the date of injury to be September 4, 2003. For reasons that are not clear from the record, Dr. DePaz referenced a 1985 injury. All of the health and work status reports, including Dr. DePaz's, reflect that Petitioner's injury was work related. Of most significance to the allegations herein, Dr. DePaz noted that Petitioner's restrictions were permanent. Upon receiving Dr. DePaz's health and status report, Ms. Larson informed her supervisor, Mr. Tudeen, and Cindy Weigant, the attorney for ACSO, that Petitioner's restrictions were changed from temporary to permanent. Following receipt of Dr. DePaz's report, an analysis was made of Petitioner's job description and her permanent job restrictions. Of particular concern were the job requirements for light-to-moderate lifting, pushing, pulling, carrying, and bending. A determination was made that Petitioner would not be able to perform the essential requirements of her job on a permanent basis. On March 2, 2004, Sheriff Oelrich wrote a memorandum to Petitioner which reads as follows: The Human Resources Bureau is in receipt of medical documentation which places permanent physical restrictions on your ability to lift more than 25 pounds with the additional restrictions of "light activities-no repetitive motion of the back." The job description for your position of Clerical Technician I specifically states that individuals assigned to this classification will be required to "lift/carry 25+ pounds, sit for long periods, light to moderate pushing, pulling and carrying." These tasks are considered essential functions of the job of Clerical Technician I. Because of these permanent restrictions, your assignment as Clerical Technician I is ended effective immediately. You are requested to contact Human Resources Bureau Chief Sherry Larson at 367-4039 to discuss your interest in other vacant positions for which you may qualify. Respondent has a directive given to all employees entitled Alachua County Sheriff's Office Employee Injury, Disability and Workers' Compensation. This directive outlines policies and procedures for reporting, processing, and treating job-related injuries under Florida's Workers' Compensation Law. This directive sets out a process that was followed in the instant case: the injured employee makes an initial injury report; health and work status reports are completed by the treating physician; and temporary restricted duty is a temporary benefit extended to full-time employees placing an employee into a temporary restricted work assignment. Regarding instances when an employee cannot be returned to unrestricted duty, the policy states the following: An employee whose restriction has been deemed to be permanent by a licensed physician and who is therefore unable to perform the essential functions of his/her job or who is unable to return to unrestricted duty from temporary restricted duty within the allowable time frame, will be governed by the following: * * * Employees who are not able to return to unrestricted duty, with or without accommodation, due to work related injury/illness shall be subject to reclassification to a position within their capabilities, and for which they are qualified, if available, or to termination in accordance with the provisions of F.S. 440. Petitioner recalls calling Ms. Larson twice inquiring as to vacant positions, but did not learn of any as a result of these phone calls. Ms. Larson does not recall whether Petitioner called her inquiring as to vacant positions, but outlined what she does in those circumstances. When an employee calls, she has a list of current vacancies in the ACSO that she reviews to determine whether there are any vacancies in positions that meet the person's permanent restrictions. When asked whether she would have gone though this process had Petitioner called, she responded, "Absolutely. Yes." Petitioner did not identify a specific vacant position for which she was qualified which the district had at the time she received the Duty Status memorandum. In addition to Petitioner, Respondent has terminated three other employees from the booking support unit who had permanent restrictions that did not allow him or her to perform certain positions with Respondent. Two of those employees are Caucasian females; one is a Caucasian male. Other than the health and work status reports, there was no medical evidence presented that Petitioner is disabled.3/ Allegations regarding race and religion Petitioner acknowledged at hearing that no action was taken against her because of her religion. When asked what happened that led her to believe that any action was taken against her on the basis of religion, Petitioner responded, "No action was taken because of my religion." Further, Petitioner acknowledged at hearing that she was not terminated because of her race. When asked whether she believed that she was terminated because of her race, she answered "No."4/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Beulah M. Johnson. DONE AND ENTERED this 30th day of September, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 30th day of September, 2005.
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of March, 1985.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also, because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993. This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties. Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily." Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr. Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile. During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made: Two reams of paper be kept under the VDT: A neoprene wrist support be provided to the leading edge of the table work surface on which Bergen could rest his forearms; and A foot rest be provided to allow Bergen to rest his feet. This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations: An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis; A chair ordered specifically for his frame size; A foot rest; A glare-proof screen for his video display terminal; and Use of a standing position as needed for his comfort. The letter added that those accommodations would allow him to perform his job without special hours or work breaks. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks. In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15. 4. Covered in conclusions of law. 5-7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 3. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17-18. Partially accepted in finding of fact 9. 19. Partially accepted in finding of fact 11. 20. Partially accepted in finding of fact 12. 21. Rejected as being unnecessary. 22-23. Partially accepted in finding of fact 12. 24. Partially accepted in finding of fact 13. 25-26. Partially accepted in finding of fact 12. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 13. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 13. 32. Partially accepted in finding of fact 16. 33-34. Partially accepted in finding of fact 17. 35. Partially accepted in finding of fact 15. 36. Rejected as being unnecessary. 37. Partially accepted in finding of fact 17. 38. Partially accepted in finding of fact 1. 39. Partially accepted in finding of fact 20. 40-42. Partially accepted in finding of fact 21. 43-44. Partially accepted in finding of fact 24. 45. Partially accepted in finding of fact 45. 46-47. Partially accepted in finding of fact 23. 48. Rejected as being cumulative. 49. Partially accepted in finding of fact 18. 50. Partially accepted in finding of fact 23. 51. Partially accepted in finding of fact 26. 52. Rejected as being unnecessary. 53. Partially accepted in finding of fact 26. 54-58. Partially accepted in finding of fact 28. 59. Partially accepted in finding of fact 30. 60-62. Partially accepted in finding of fact 29. 63. Rejected as being unnecessary. 64. Partially accepted in finding of fact 30. Respondent: Partially accepted in finding of fact 2. Rejected as being unnecessary. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in findings of fact 4 and 6. Partially accepted in findings of fact 8 and 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 25. Partially accepted in finding of fact 16. Partially accepted in finding of fact 26. 15-16. Partially accepted in findings of fact 23 and 24. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 George F. Schaefer, Esquire The Liberty House 1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116 Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300 675 West Peachtree Street, N. E. Atlanta, Georgia 30375
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
