The Issue The issue to be resolved in this proceeding, as stipulated at the hearing, is whether the Petitioner has been subjected to discrimination on account of a handicap or disability.
Findings Of Fact The Petitioner at times pertinent hereto was an employee of North Florida Evaluation and Treatment Center in Gainesville, Florida. She began working for that entity in 1985. Her position was that of Unit Rehabilitation Treatment Specialist. This required her to work with residents of the treatment and evaluation center. Her duties involved such things as helping move residents, and carrying food trays up and down stairs to residents. Sometime in 1993, the Petitioner suffered a back injury, the result of which has caused her to have chronic, substantial pain in her back and leg. The injury apparently occurred in the line of duty on the job with the Respondent agency. The Petitioner missed some time from employment for these medical reasons and in December of 1993, was placed on light duty status at work due to the medical restriction recommended by her doctor. This light duty status involved such restrictions on her full employment activities as doing only light lifting and restricted use of stairs. Her light duty restrictions involved a great many of her "resident contact- type" activities of her job such as meal monitoring, delivery of meals, escorting residents, handling laundry, medication delivery and the like because of the restriction against use of the stairs, as well as heavy lifting. She was on this light- duty status for approximately three years when, in November 1996, a doctor told her, and she informed her employer, that she could no longer climb more than four flights of stairs per day. Since all treatment buildings at the facility where she worked had at least one flight of stairs, this severely restricted her ability to perform her daily job functions. Nevertheless, she was maintained on light duty status in order to accommodate her disability. In December 1996, her doctor further restricted her employment status to no climbing of stairs at all. At that time, the Respondent temporarily assigned her to duty in the pharmacy in order to accommodate her inability to climb stairs or lift significant weight, as well as because there was a staff vacancy in the pharmacy. In February 1997 that assignment to the pharmacy ended because the staffing need there had ended. A person qualified and experienced in the pharmacy duties involved was hired. The Respondent then attempted to find a suitable position to accommodate the Petitioner's disability within the department's district. The job search was unsuccessful. Since there was no permanent position available outside the treatment area where the Petitioner worked, which could accommodate her disability, the Respondent requested a new status report from her doctor. Consequently, on February 5, 1997, the Petitioner's doctor stated that she was able to climb one flight of stairs in an eight hour day. The Respondent, therefore, continued to employ her on light duty in accordance with this restriction to one flight of stairs climbed in an eight-hour day, during the Petitioner's regular shift. She was allowed to work in her normal building location during her regular shift with this restriction with the result that other employees had to assume the duty she would normally have in her position as a unit treatment and rehabilitation specialist, which involved carrying medications, food or other items, climbing stairs, as well as handling patients or residents. She worked on this regular shift with these light-duty restrictions approximately three more months because the Respondent employer expected that situation to be temporary. Thereafter, however, her doctor advised that there would be no foreseeable change in that restriction in the future and he considered her physical limitations to be continuing indefinitely. Because of this more or less permanent restriction imposed by her doctor, the Respondent took the position and advised her, on May 22, 1997, that it believed that she was unable to perform a significant number of essential job functions required of unit treatment and rehabilitation specialists on the day shift. The Respondent advised her that it believed that she was unable to perform most meal-monitoring functions, to escort residents, handle laundry and do most supervised activities out of the building as well as crisis intervention, medication delivery, monitoring and "coverage" of other buildings. Consequently, the Respondent informed the Petitioner that it would no longer be able to assign her to light duty on the day shift because it did not feel that she could perform sufficient of her duties to reach an adequate performance level. Other employees were having to perform many of her duties on a more or less permanent basis. The Respondent did advise her that it felt her needs could be reasonably accommodated (as well as the needs of the employer) by changing her schedule to the night shift. The night shift has a much lower level of activities, with no regular duties out of the building and virtually no necessity for resident contact. The Respondent advised the Petitioner of this proposal to change her duties to the night shift and gave her time and an opportunity to respond and either accept or reject the position on the night shift. The Petitioner submitted a doctor's note on May 8, 1997, stating that she would not be able to work on the night shift and the Petitioner declined the position due to this and to family-related reasons. Consequently, the Respondent felt it had no choice but to start termination of the Petitioner's employment. The Respondent candidly told the Petitioner that this did not involve her misconduct and that it was not trying to discredit her in any manner. However, the Respondent was unable to keep her in her position because it was beyond her physical capabilities, even after according her a much longer than normal light duty status. In fact, unrefuted testimony shows that, normally, light duty status is accorded for a four to six-month period and the Petitioner was given that benefit or accommodation for approximately four years. In any event, the Respondent found that the position occupied by the Petitioner was beyond her physical capabilities, that the safety of residents and other personnel in the building required that every employee be able to fully perform essential job standards and functions and that the Petitioner could not do so. Thereafter she was given an opportunity to meet with the Respondent to discuss and propose any alternatives, but after these opportunities elapsed she was terminated from her position on or about June 3,1997. There is no question that the Respondent knew the Petitioner had a disability. Indeed that disability was accommodated by light duty for more than four years. The testimony of Ellen Young and Sue Tennant, testifying for the Respondent, establishes that the normal course of a light-duty assignment, in the case of a disability, is for a period of four to eight months. Thus, the Respondent went far beyond the norm in according more than four years of light duty. Indeed, thereafter, the Respondent gave her a temporary re-assignment to the pharmacy and thereafter sought to find another position she could occupy and perform well enough, with her disability, to no avail. The Respondent also sought to continue her in its employ by re-assignment of her to the less strenuous night shift. She refused this re-assignment due to her doctor's restrictions on her activities, as well as for personal and family reasons (she simply did not want to work at night). It is also the norm, according to the Respondent's unrefuted testimony, through the above two named witnesses, that light duty is a concept which means that such a disabled person cannot perform a small portion of his or her job. It does not mean that such a person can be maintained in employment for a long period of time or indefinitely when she cannot perform a large portion of the duties of the job. It was established by the preponderant evidence consisting of these witnesses' testimony that the Petitioner was unable to perform a large portion of the duties of her position and that other employees on her shift had to perform a significant portion of her duties. In summary, the Respondent made every reasonable effort to accommodate her disability and to continue her in employment, short of simply creating an entirely new position tailored to her disability limitations (and for that reason). It thus reasonably accommodated her disability limitations or tried to.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 11th day of September, 2001. COPIES FURNISHED: Maxie Broome, Jr., Esquire 3120 Atlantic Boulevard Suite Two Jacksonville, Florida 32207-8814 Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The petition herein was dated January 9, 1975 by Petitioner, and was filed with PERC on January 17, 1975. (Hearing Officer's Exhibit 1). The hearing was properly scheduled by notice dated March 26, 1975, and was conducted on April 17, 1975, by agreement of the parties. (Hearing Officer's Exhibit 2, Tr. 10, 11). The Town of Palm Beach is a public employer within the meaning of Fla. Stat. Section 447.002(2). (Stipulation, Tr. 5, 6). The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization within the meaning of Fla. Stat. Section 447.002(10). (Stipulation, Tr. 6-8). During the course of the past five years, Petitioner has requested recognition, or has otherwise sought to engage in collective bargaining with the Public Employer on several occasions through written and oral communications. Most recently Petitioner sought recognition through letters dated December 28, 1974, and April 11, 1975. (Tr 85-240, Petitioner's Exhibits 1, 2). There is no contractual bar to holding an election in this case. (Stipulation, Tr. 9, 10). The parties have not engaged in collective bargaining under the auspices of the Public Employees Relations Act. The parties engaged in collective bargaining in a limited fashion prior to the passage of the Act. Efforts on Petitioner's part to engage in collective bargaining with the public employer began in 1969. (Tr. 85-240, Petitioner's Exhibits 1-23). Registration material delivered by Petitioner to PERC was dated January 7, 1975, and was received by PERC on January 13, 1975. Additional materials were received by PERC on February 10, 1975. PERC acknowledged receipt of the registration material on February 10, 1975. The Public Employer contended at the hearing that registration was not proper because the source of certain funds was not adequately revealed. PERC has previously concluded that registration was complete and proper. (PERC registration File No. 8G-OR-756-1044, TR 11-15, 22-27, 225-238; Hearing Officer's Exhibit 3; Petitioner's Exhibit 4). Petitioner filed the requisite showing of interest with its petition. The Public Employer has asserted that the showing of interest is not adequate, however, no evidence was presented to counter the administrative determination previously made by PERC. (Hearing Officer's Exhibit 4; Tr 16, 17; Public Employer's Motion to Dismiss). There are between forty-five and fifty-five persons in the unit proposed by Petitioner. All of the employees within the proposed unit are engaged in firefighting and/or paramedical rescue operations. The employees within the proposed unit work the same twenty-four hours on duty, forty-eight hours off duty shift. They eat and sleep in the same area while on duty, and wear the same or similar uniforms. There is a significant amount of interchange in duties among the employees. Wages and other terms of employment, job and salary classifications are determined for all of the employees within the proposed unit in the same manner. The bargaining history indicates a firm desire on the part of the employees to belong to a unit such as Petitioner proposes. (Tr 148-151,298-345, 369-372). The Public Employer contends that the only appropriate unit would include all public safety employees. No direct testimony was offered in support of this contention. Direct and cross-examination of Petitioner's witnesses indicate that the fire department and other public safety departments do not generally work together. Firefighters do not perform police functions or lifeguard functions. Police and lifeguards do not perform fire department functions. There is no interchange of employees between the departments, although there was evidence presented that transfers between the departments do occur. (Tr 148-151, 298-345, 369-372). Fire lieutenants are the senior officers in charge of each shift at two of the Town's three fire stations. Captains are in charge of shifts at the headquarters fire station. Fire lieutenants have four persons working under them. Fire lieutenants work the same shift as the other firefighters, wear the same uniform with no adornment of any kind, perform the same daily duties such as cleaning equipment, and teaching or participating in classes and training exercises. They perform the same firefighting duties. The fire lieutenant is charged with filling out a log book, checking the roster, answering the radio, preparing training schedules, and filling out fire reports, which duties the other firefighters do not generally perform. The fire lieutenants fill out evaluation reports on personnel who work on their shifts. The personnel are graded numerically from one to ten in approximately twenty categories, e.g., public contact and taking directions. These reports form a part of the procedure through which an employee is granted or denied a merit pay increase or is granted or denied a promotion. If an employee who works under a lieutenant has a grievance, the lieutenant is the person to whom the grievance is first carried. The lieutenant is the person in charge of maintaining order at the fire station and is in charge of any fire operations until a senior officer arrives on the scene. The fire lieutenants report directly to fire captains. The lieutenant takes no direct roll, other than making reports, in hiring, firing, promotion or transferring employees. The lieutenant is not responsible for personnel administration nor for collective bargaining. He takes no roll in formulating or administering the budget. Lieutenants and captains do not perform any functions as a group. Lieutenant Walker indicated that he has never attended a meeting at which lieutenants and captains met as a group. If a lieutenant or a captain is absent from work, other personnel fill the position. Val Williams, a pumper/operator, has served as a captain for as long a period as two months. (Tr 248-296, 302-319, 315-332; Petitioner's Exhibits 24, 25, 26). Fire captains perform generally the same duties and fulfill the same rolls as fire lieutenants. Captains head the shifts at the headquarters stations. In addition to duties performed by lieutenants, captains conduct fire inspections, and serve as the next step in the chain of command above lieutenants. Captains answer directly to the assistant fire chief. (Tr 259-61, 334; Petitioner's Exhibits 24, 25, 26). Assistant fire chiefs are in charge of each shift for all three fire stations. They oversee the operations of each station, and visit each station on at least one occasion during the course of each shift. Assistant fire chiefs answer to the deputy chief; the deputy chief answers to the chief; the chief answers to the town manager. (Tr 265-66, Petitioner's Exhibits 24, 25, 26). Mobile Intensive Care Unit (MICU) attendants and driver/operators, and paramedic specialists work the same shifts and wear the same uniforms as firefighters. Each is paid approximately five percent more than a firefighter who has been employed for the sane period of time. Driver/operators answer fire calls, drive to the fire with a firefighter, and occasionally fight fires. They answer directly to lieutenants. Paramedic specialists answer directly to the deputy fire chief. Paramedic specialists receive extensive training apart from firefighting training. Paramedic specialists answer fire calls, but the testimony was not clear as to whether they are permitted to fight fires. Paramedic specialists do not perform any personnel administration or policy making roll. (Tr 333, 334, 346-358, 373-386). There are one clerk and one mechanic who work with the fire department. They apparently answer to the fire chief. Each works an eight hour day, five days weekly. They do not work directly with firefighters. (Tr 330- 333).
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice as envisioned in Section 760.10, Florida Statutes (2005), on the basis of the Petitioner's disability or handicap, and his age. It must also be determined whether the Respondent committed retaliation against the Petitioner for the Petitioner's alleged exercise of statutorily protected rights in complaining about health, or safety concerns, regarding his operation of a machine or device while an employee of the Respondent.
Findings Of Fact Jimmy D. Forehand was hired by the Department of Management Services or its predecessor on January 21, 1977. He was employed at that Agency for approximately 27 and one-half years through June 30, 2004. For the last 19 years of his tenure he was classed as an electrician. This is the entry level electrician trade position and has fewer complex duties and skills required for its performance, as opposed to the more complex position of master electrician, in terms of working with complex wiring, wiring problems, electrical devices, and so forth associated with that latter position. It has been stipulated that through his termination date of June 30, 2004, Mr. Forehand, was qualified to perform the duties and functions of his job. The Respondent is an Agency of the State of Florida charged with managing all state government agency resources, services, properties, benefits, and procurement. It manages state-owned facilities, handles state human resources or personnel matters, employee benefit matters, as well as procurement of such things as office space and office supplies. It maintains the physical integrity of all state-owned properties. The Petitioner was employed for the Respondent by the Division of Facilities Management and Building Construction (Division of Facilities) which is responsible for managing and maintaining office complexes and other properties owned by the state. The Petitioner specifically worked for the electrician unit of that Division. The Disability Claim The Petitioner experienced several purported medical conditions which resulted in workers' compensation claims during his tenure as an employee. The ones relevant to this case commenced in approximately 1992. In 1992 the Petitioner was engaged in a repair work assignment at a DMS-administered office building in downtown Tallahassee. He allegedly became exposed to asbestos during that job. The Petitioner and the employer, DMS, initiated a First Report of Injury and a workers' compensation claim ensued regarding the asbestos incident. The progress of that workers' compensation claim and its disposition are not relevant to this case, aside from the diagnosis concerning that claim as a part of the predicate for showing a disability for purposes of the case at bar. In any event, in 1992, the Petitioner was diagnosed by a physician with asbestosis. Because of that diagnosis, through the workers' compensation process, the employer and carrier have authorized the Petitioner, in all the years since, to have an annual medical examination and chest X-ray under the auspices of the Division of Workers' Compensation, Department of Financial Services. This is for the purpose of monitoring the status of the asbestosis. The Respondent has stipulated that it was aware of the diagnosis of asbestosis. It does not agree that the asbestosis constitutes a disability for purposes of Chapter 760, Florida Statutes (i.e. handicap). The Petitioner was released from the physician with regard to the asbestosis situation without work limitations or restrictions due to that diagnosis. Sometime in 1999 the Petitioner injured his left knee on the job, apparently a severe sprain. A workers' compensation notice of injury was filed and a workers' compensation claim process ensued whereby he received treatment for his knee problem. When he reached maximum medical improvement he returned to work with a light duty recommendation from his treating physician, on a temporary basis. In fact, the Respondent accorded him a temporary light duty assignment after he returned to work from the knee injury. The Respondent, through the Petitioner's supervisors, particularly Joe Jacobson, generally made an effort to try to find the Petitioner a light duty assignment when he returned from illness or injury, based upon a doctor's recommendation and/or the Petitioner's own request for light duty. His supervisor, Mr. Jacobson, would customarily call other building managers, the "OP/CON Center" and other agencies in an effort to find a light duty post Mr. Forehand could perform in until he was ready for the full duties of his regular position. Thus, on several occasions Mr. Forehand was placed in light duty as a janitor or answering phones. It was not always possible to find temporary light duty for Mr. Forehand when he requested it or when a doctor recommended it. Apparently Mr. Forehand was on leave without pay for a number of months on at least one occasion when no light duty was available for him. In this connection, however, the Respondent, throughout Mr. Forehand's tenure as an employee or at least since his 1992 asbestosis diagnosis, has shown a penchant for allowing Mr. Forehand to occupy and perform his duties in his regular position of electrician by working at his own pace, without regard to any time limit for performing his duties, without prohibition on his taking frequent rest breaks, and with tolerance for his late arrival at work, if tardiness was related to his physical condition. Thus, in a defacto fashion, the Respondent accommodated what it knew of Mr. Forehand's impairments, as he related them to the Respondent, or as they learned of them from reports from his physicians and from the workers' compensation process (i.e., breathing difficulties and to some extent left knee impairment after 1999). In any event, the preponderant evidence establishes that when the Petitioner requested light duty and/or his physician recommended it, the Respondent would provide him with light duty if it was available, although it was not always available. It accommodated what it knew of his impairments when he worked in his regular position, performing his regular duties, by the means described above; even though the Petitioner did not for the most part request rest periods, frequent breaks from his duties, additional time to complete his assignments, or for permission to trade assignments with another worker who might have a less physically taxing job. In fact, when the matter of his physical difficulties came up, or was raised by the Petitioner in a conversation with his supervisor on at least one occasion, his supervisor told him in effect to "do the best you can." The implication thus clearly was that if the Petitioner needed rest breaks, needed additional time to do assignments, that the Respondent would accommodate him by not holding him to a strict standard as to when his job duties got performed. Since approximately the year 2000 or the fiscal year 2000-2001 the Respondent, like other state agencies, have been under a mandate from the Legislature and the Office of the Governor to save on costs and to become more efficient in its operations. One of the primary means of accomplishing this has been to require a reduction in the Agency's workforce. The Respondent has thus experienced a loss of employment positions since that fiscal year in each budget year and session of the Legislature. It has thus lost approximately 635 full-time positions over a four-year period ending with the 2005 Legislature and Appropriations Act. In fiscal year 2000-2001, the Petitioner's position was identified by the year 2000 Florida Legislature to be eliminated, by making it "non-recurring," such that his position would be cut or eliminated effective July 1, 2001. The Respondent's supervisors did not want him to be laid off. Therefore, they avoided his lay-off in that fiscal year by re- classifying him or his position into a vacant position within the Division of Facilities. They made the decision to retain him even with knowledge of his past workers' compensation claims, his asbestosis diagnosis and his knee injury of 1999 with related occasional light duty and time off from work. When the 2000 Legislature identified his position as being one which would be non-recurring or deleted after July 1, 2001, the Respondent held a meeting with the Petitioner and all other employees whose positions had been deemed non-critical and subject to deletion in the job force reduction. What had occurred was explained and their options and procedures to remain employed or become re-employed were explained. Because his supervisors wanted to save him from lay-off, and re- classified a different position to place him in, he was protected when the 2001 Legislature carried through with its previous year alteration of his position to non-recurring funding by withdrawing all funding and rate supporting his original position. In continuation of its mandate to reduce the work force, the 2003 Legislature made 20 positions non-recurring, including the Petitioner's. This meant that the funding was determined to be non-recurring, meaning that the positions would be funded one more year, but at the end of the fiscal year, on June 30, 2004, these positions would no longer be funded and would be abolished. In the Governor's and agency's budget preparation process thereafter, in 2003 and early 2004, the Legislatively- mandated reduction of 20 positions was incorporated. The Agency, however, in late 2003 or early 2004, arrived at the conclusion that it needed 15 of those 20 positions to be re- classified as critical positions necessary to its mission. Therefore, in the Legislative budget-making process, beginning in February and early March 2004, it sought to convince the Legislature's Appropriations staff and members that 15 of the positions were critical. It was successful in doing that during the Legislative session. The Petitioner's position was not re-established as a recurring, critical position. This was because his position had previously been determined to be non-critical in the 2000-2001 fiscal year, and, since his job duties and responsibilities had not changed since that time, his position was again deemed to be no longer critical to continued division operation. It was determined by the Respondent that the functions of his position could be performed by including them in the duties of other positions, to be performed by persons who qualified for and occupied those positions (such as master electricians). Although Mr. Jacobson, his supervisor, wanted to find a vacant position to place the Petitioner in as he had done in the 2000-2001 fiscal year job force reduction, there were no vacant positions available in which to place the Petitioner. Mr. Jacobson's testimony establishes this, as does that of Clint Sibille and Cherri Linn (Mr. Jacobson's supervisors). The fact that Mr. Jacobson had a desire to try to find a way to retain the Petitioner is somewhat corroborated by the statement or message from Ms. Linn to Mr. Jacobson to the effect that "you can't save him this time." This meant that, unlike the situation in 2000-2001, there were no vacant positions which could be converted to a position in which to place the Petitioner. Moreover, the testimony of the supervisory lead worker, Bill Kerr, corroborated that of Joe Jacobson and Clint Sibille that there were no vacant positions to place the Petitioner in or to convert to a position suitable for his qualifications. Their testimony shows that the Petitioner's position was not a critical one in the division, especially because it did not involve duties concerned with intricate electrical wiring, wiring repairs, working on complex electrical devices and other complex electrical work. This testimony established that it made no sense to convert a master electrician position into one which met Mr. Forehand's lesser qualifications because a qualified person in a master electrician position, can perform the Petitioner's duties and many more duties in terms of complexity and critical importance than can a person with the Petitioner's lesser qualifications in an entry-level electrician position. Mr. Forehand is not a licensed electrician. The Respondent thus determined that there were no positions which were vacant and sufficiently less critical to its operation as to justify it in converting such to one which met the Petitioner's qualifications (in a managerial context). The Petitioner was not told of his lay-off until June 14, 2004. In fact, Mr. Jacobson, his supervisor, did not know that it was certain to occur until immediately before Mr. Forehand was told, several days before at the most. Clint Sibille had told Mr. Jacobson before the Legislative session convened that Mr. Forehand's position might be eliminated but he was not certain at that time (approximately in December 2003 or January 2004). It is not clear which supervisor or manager made the initial decision that the Petitioner's position was not critical. It apparently was the recommendation of Clint Sibille, in concert with Cherri Linn, and with the final approval of the Division Director, then LeeAnn Korst. Mr. Jacobson, the Petitioner's immediate supervisor, did not request that his position be deleted. During most of 2003, the Petitioner's job duties included operation of a florescent bulb or lamp crushing system. This was a device known as a VRS Bulb Crusher also known as the "bulb eater." It had apparently been purchased by the Agency sometime in 2002. The device consists of a large drum with a vertical tube through which burned-out florescent light bulbs are inserted so that they fall into the large drum where a mechanical device is operated which crushes the bulbs for disposal. The Petitioner performed a large portion of the bulb crusher's operation. This was particularly true during early 2004, when the Petitioner used the machine at a more intense level. Sometime in February 2004, the exhaust or filtration system of the machine sustained damage, or a break, so that dust and particulate matter and any gaseous or chemical contents of the broken bulbs had the opportunity to leak out of the area of the break into the ambient air. A temporary repair was made and a permanent replacement part was ordered from the manufacturer. The machine continued to malfunction, however, and the repair did not hold. The Petitioner complained to Bill Kerr, his lead worker, concerning the dust and particulate matter the machine apparently sprayed into the air. He also complained to his supervisor, Joe Jacobson. The Petitioner stated that he believed that the dust and particulate matter and other unknown contents of the broken florescent bulbs might aggravate the breathing problems he professed to have, which he related to his original asbestosis diagnosis. These complaints began in early March 2004. The Petitioner also complained to Dave Wiggins, the Respondent's Environmental Supervisor in March of 2004. When the complaints were made and the temporary repair was not successful, the Respondent stopped all use of the bulb machine in early March 2004. This was contemporaneous with the time or occasion when the Petitioner refused to use the machine any longer. The complaints about the bulb crushing machine were reported up the "chain of command" so that on March 16, 2004, Glen Abbott, the Employee Relations Specialist of the Bureau of Personnel Management Services, made a written "medical report" (according to the Petitioner's testimony) concerning the Petitioner's reported exposure to "poisonous chemicals" in the fluorescent bulbs being crushed through operation of the machine. This report was apparently required for workers' compensation purposes. The Petitioner also told Clint Sibille, Mr. Jacobson's supervisor, of the machine's purported malfunction. Mr. Sibille asked Dave Wiggins, the Environmental Specialist, to investigate the machine to determine if the machine was malfunctioning or if the problem reported by the Petitioner was caused by operator error. Mr. Wiggins and Joe Jacobson, after investigating the matter, believed it to be caused by operator error in the manner in which the bulbs were inserted into the vertical tube of the machine. The Petitioner maintains that he asked Clint Sibille to send him to a doctor concerning his fears of heath problems related to the machine and states that Clint Sibille told him to "see his own doctor." Mr. Sibille did confer with Cherri Linn about the Petitioner's request and Cherri Linn informed him that the Petitioner would have to engage in the workers' compensation report and claim process in order to see a doctor concerning his health-related fears about the bulb crushing machine. Mr. Sibille then told the Petitioner's supervisor Joe Jacobson to tell the Petitioner of this. Thereafter, at some point during the period of March through June 2004, after the Petitioner reported his complaints concerning the use of the bulb crusher, Glenn Abbott told all the electricians and carpenters who had worked with the machine to obtain medical examinations under the normal workers' compensation procedure, to try to ascertain if there are any deleterious effects caused by these persons' operation of the machine. Sometime in early May of 2004, the Petitioner called the Department of Environmental Protection (DEP) and spoke to someone there and made a verbal report of his belief concerning unsafe conditions regarding operation of the bulb crushing machine. After the Petitioner left employment with the Respondent Agency in July of 2004, the machine and the warehouse space where it was located was examined by a representative of the DEP and samples were taken, in an effort to ascertain if any hazardous materials had been produced by the machine or were present in that working area. On May 18, 2004, the Petitioner re-injured the same knee which he had injured in 1999. A Notice of Injury concerning this knee injury was filed to trigger the workers' compensation process and the Petitioner saw a doctor through the workers' compensation procedure who examined and treated his knee problem (severe sprain). He was off work for a few days and then was sent back to work by the physician with a prescription of "light duty." He thus became available for work with light duty, at the doctor's recommendation, on or about June 1, 2004. At about this time he told his lead worker Bill Kerr, of his blood clot and showed him the doctor's report concerning leg swelling. He also informed Joe Jacobson of this. He sought light duty and indeed Joe Jacobson made substantial efforts to find light duty available for him by calling the various building managers and the "opcon" center to see if any light duty was available. Mr. Jacobson went so far as to try to ascertain if there were any office filing duties that the Petitioner could perform. He was unable to locate any light duty work for the Petitioner at this time. Joe Jacobson took annual leave in early June and while he was on annual leave, he received a call from his employer, (apparently Cherri Linn) around June 10th or 11, 2004, requiring him to come back to work because the job force reduction lay-off was going to be imposed on the Petitioner and his presence as his supervisor was apparently needed. On June 11, 2004, the Petitioner was called and told to report to work on Monday morning, June 14, 2004. On Monday the Petitioner was called in to a meeting with Joe Jacobson and Tim Carlisle and told of his lay-off. He was immediately required by the Department's Inspector General, Tim Carlisle, to take boxes and pack up his belongings and to leave the premises. Carlisle helped him pack his belongings and ushered him off the Respondent's premises. The Petitioner maintains that he did not know of his lay-off until that same day, which happened to be his fifty-fifth birthday. He was placed on leave with pay until June 30, 2004, his actual termination date. In July of 2004, apparently on or about July 2, 2004, he filed a formal written complaint to the Chief Inspector General regarding his concerns and feared health consequences of the operation of the bulb crushing machine. On or about July 20, 2004, Mr. Forehand visited a walk-in medical facility because he contends he was experiencing shortness of breath, chest pains, and tightness in his chest. He attributed these symptoms to use of the bulb crusher back in March and earlier. He testified that he was diagnosed with silicosis and that he physician determined that he could not tolerate walking 30 to 60 minutes at a time or lifting more than 15 or 20 pounds. Neither this physician nor any other testified, nor was non-hearing medical information admitted into evidence in this regard. Interestingly, Mr. Forehand's testimony indicates he was diagnosed with a heart condition, apparently based on these symptoms, and in late 2004 underwent insertion of an arterial stint. The Petitioner thus complained to his supervisors beginning in about early March 2004, concerning the fears he had about the results of the machine operations. He complained verbally to DEP in early May of 2004, but made no written formal complaint, to any agency or person, until after his termination in July 2004. The Petitioner was not asked to participate in an investigation, hearing or inquiry concerning the operation of the bulb crushing machine and made no written complaint to any supervisory officials of the Respondent, who could then themselves submit a complaint to the Inspector General or to the Human Relations Commission. In fact, in his own testimony the Petitioner admits that he made a written complaint in July of 2004. In an apparent effort to show that the Respondent's proffered non-discriminatory reason for his termination was pretextual, the Petitioner advanced testimony from a number of witnesses, including himself, which he maintains shows a pattern and practice by the Respondent of retaliating against, and, if necessary, effectively firing older, disabled employees or employees who complain of safety hazards. In this regard, of the five positions selected to be eliminated in the job force reduction of 2004, four had incumbents when the decision was made. All four of those incumbents were over 40 years of age. Two of those four positions, however, became vacant before they were eliminated by the job force reduction. Ms. Ashraf Achtchi was fired by the Respondent before her position became officially eliminated in the job force reduction and Preston Booth voluntarily resigned from his position for unknown reasons. Ms. Achtchi testified to the general effect that she felt she had been discriminated against because of being ill and under medical treatment, yet she was still singled out (in her view) for being absent or tardy. Although the record may establish that she is over 40 years of age, there is no persuasive evidence that she suffered from a legally cognizable disability as that condition or term is defined below, even if she was under a doctor's care, was ill, and had frequent tardiness or absentness due to illness or a doctor's visit during her employment tenure. In any event, other than her own subjective opinion and Mr. Forehand's speculations based upon hearsay, there is no persuasive, competent evidence to show that she was terminated for any reasons based upon an unproven disability, her age or due to any retaliation regarding any protected status within the purview of Chapter 760, Florida Statutes. The Petitioner maintains that both he and Mr. Feizi were over 40 and disabled. Whether or not the Petitioner established proof of disability will be dealt with in the conclusions of law below. Mr. Feizi apparently suffered from a disease of the nervous system (AMS) and was confined to a wheel chair much of the time. It may thus be inferred that, for purposes of the legal elements of disability referenced below, that Mr. Feizi was disabled. Other than his subjective opinion and Mr. Forehand's subjective testimonial speculation, based upon hearsay, however, there is no competent, persuasive evidence concerning the reasons Mr. Feizi was terminated, other than that his position was simply eliminated through a job force reduction in the manner described in the above findings of fact. There is no persuasive, credible evidence to show that he was dismissed from employment based upon his age or due to his disability or as retaliation, nor was that proven with regard to Ms Achtchi. Other employees testified concerning alleged retaliatory conduct on the part of the Respondent. Sid Palladino and John Corbin opined that they had been retaliated against for making safety complaints of various kinds, as well as for testifying on behalf of the Petitioner in this proceeding. Ralph Cleaver testified that he left the Department to work for the Department of Agriculture because he had filed a "whistle blower" claim and that the Respondent, in his view, would use retaliation for his taking such an action. Barry McDaniel was 60 years old when hired and, abruptly soon thereafter, was asked to resign, according to his testimony, without any given reason. He testified that Mr. Sibille had him read a book purportedly advocating hard work and the hiring of young workers. The book was entitled "The Go Getter." According to Mr. McDaniel's testimony, the book was required to be read by all employees under Mr. Sibille's supervision. There was no evidence, however, that although Mr. McDaniel was asked to resign, that any other employee was so treated. The book was not in evidence and the undersigned has only Mr. McDaniel's subjective testimony concerning his thoughts regarding the theme and content of the book, in relation to his subjective belief that his age was the reason he was asked to resign. He testified that his immediate superior, who was also 60 years of age, was "gone" shortly thereafter. There is no evidence of any circumstances or facts concerning why Mr. McDaniel or his supervisor were actually asked to resign or in the case of his supervisor, may have voluntarily resigned. There are insufficient facts and circumstances established by the evidence to show any discriminatory motive related to age or otherwise with regard to the terminations of either of these men. Sid Palladino testified that he was reprimanded for not wearing his uniform and that other employees were not reprimanded when they had not worn uniforms either. He also testified that he felt he was retaliated against for making safety complaints as well as for testifying in support of the Petitioner in this proceeding. In fact, his reprimand was rescinded shortly after it was given him when it was learned that he had not worn his uniform or worn it properly because the uniform supplied him did not fit. Additionally, other than their anecdotal comments in their testimony, there is no persuasive evidence that Mr. Palladino or Mr. Corbin were retaliated against for complaining of safety issues and the same is true of Ralph Cleaver opining that he was about to be retaliated against for being a whistle blower, and Barry McDaniel as well. There is simply no definitive, credible proof, other than these employees' own subjective opinions, upon which to base a finding that there was any pattern and practice of retaliation against employees for complaining about safety hazards, for supporting other employees' discrimination claims, for making whistle blower claims, for being disabled or on account of their age, which could be persuasively probative of the discrimination and retaliation claims of the Petitioner.1/ In this connection, it is also found that there are a number of remaining employees in the Petitioner's division, who were his age or older. Indeed, Mr. Robert Smith had retired and then was later re-hired by the Department and the Division after suffering at least one episode of injury and medically prescribed light duty. Likewise, there are an unknown number of disabled or physically impaired persons remaining employed by the Department, after the dates and circumstances occurred with regard to the Petitioner's discriminatory claims. At least two of them testified in this proceeding. These facts belie the existence of a systematic policy or practice of eliminating employees over age 40 or of Mr. Forehand's age or older, or those who might be disabled or suffering from physical or medical impairments.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of national origin, in violation of the Florida Civil Rights Act of 1994, Section 760.10(1), Florida Statutes (2005).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and on the entire record of this proceeding, the following findings of fact are made: According to the Charter of the City of North Miami ("City Charter"), the City has a "council-manager" form of government. All powers of the City are vested in an elected City Council, including the power "to enact legislation, adopt budgets, and determine policies." The City Council also appoints the City Manager to administer the City's government.2 The City Council consists of four council members and a mayor. The mayor presides at the City Council meetings and is "recognized as the head of the city government for all ceremonial purposes . . . and shall have a voice and vote in the proceedings of the council, but shall have no regular administrative duties."3 The City Manager "shall be the chief administrative officer of the city, responsible to the council for the administration of all city affairs placed in the manager's charge by or under" the City Charter. Among those powers is the power to "[d]irect and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by the charter or by law."4 The City's Police Department is an administrative department of the City, and the Police Chief, as head of the Police Department, supervises and controls the department "subject to the city manager."5 The City Attorney is the head of the City's Department of Law and is appointed by the City Council. The City Attorney's salary is fixed by the council and included in the budget.6 The Department of Law is not an administrative department subject to the direction and supervision of the City Manager.7 The City Manager is responsible for proposing salary increases to the City Council for the department heads under his supervision, which includes the Police Chief. The heads of the various administrative departments are responsible for proposing salary increases to the City Manager for the employees under their supervision. The City Attorney is responsible for proposing salary increases to the City Council for the employees under his supervision, which includes the Deputy City Attorney. The salaries of all City officers and employees, including the City Manager and the City Attorney, must be within the ranges provided in the City's pay plan. If someone is hired at a salary outside the salary range for the position in the pay plan, or if someone is promoted or given a salary increase that is outside the salary range in the pay plan for the position, the pay plan must be amended by the City Council to re-classify the position or to increase the maximum salary for the position. Ms. Boyd was hired as the City's Police Chief in January 2002 at a pay grade of 39-9, the maximum salary for the position. Consequently, she had received only cost-of-living raises since January 2002. In October 2003, after the City Council appointed Ms. Boyd as Interim City Manager, John Dellagloria, then the City Attorney, prepared a Letter of Understanding at the direction of Mayor Celestin to address Ms. Boyd's salary and benefits while serving as Interim City Manager. Ms. Boyd spoke with Mr. Dellagloria as he was preparing the Letter of Understanding and told him that she wanted him to include a provision increasing her salary upon her return to her position as Police Chief. After talking with Mayor Celestin, Mr. Dellagloria included a provision specifying the salary that Ms. Boyd would receive when she left the position of Interim City Manager and returned to her position as Police Chief. Mayor Celestin and Ms. Boyd executed the Letter of Understanding on October 23, 2003. Mayor Celestin's signature on the Letter of Understanding signified his intention that Ms. Boyd would receive a salary increase when she returned to her position as Police Chief. Mayor Celestin understood, however, that he could prepare letters of understanding that implemented resolutions of the City Council that he did not have the power to bind the City by his signature on a document in the absence of a City Council resolution or other directive. The City Council action appointing Ms. Boyd Interim City Manager did not include anything related to her salary when she returned to her position as Police Chief. The salary increase included in the Letter of Understanding for Ms. Boyd when she returned to her position as Police Chief exceeded the maximum salary range specified in the City's pay plan for her pay grade of 39-9. Rebecca Jones, the City's Director of Personnel, noticed this when she prepared the Personnel Action Form to send to the City Manager for his approval of the salary agreement with Ms. Boyd when she became Interim City Manager. Ms. Jones advised Mayor Celestin that the raise could not be given without the City Council's approval of an amendment in the pay plan, but she did not discuss her conclusion with Ms. Boyd as Interim City Manager; Ms. Jones considered that improper because the matter concerned Ms. Boyd. After he executed the October 23, 2003, Letter of Understanding, Mayor Celestin was advised by someone in the Legal Department that he did not have the authority to increase the salary for the head of an administrative department such as the Police Chief. He was told that this authority was vested in the City Manager because the City Manager directly supervised the Police Chief. Clarence Patterson was appointed City Manager by the City Council in January 2004. He took office in late February 2004, and Ms. Boyd returned to her position as Police Chief at the salary she had received before she was appointed Interim City Manager. During the time she served as Interim City Manager, Ms. Boyd served on the screening committee for applicants for the position of City Manager. The committee was to review the qualifications of the applicants and determine those candidates who were minimally qualified for the position. Ms. Boyd presented the report of the committee at the January 27, 2004, meeting of the City Council, and reported that the committee had found only one highly-qualified candidate. Only two candidates attended the January 27, 2004, meeting, Nadine Pierre Louis and Clarence Patterson; Mayor Celestin supported Ms. Louis, and Mr. Patterson was backed by another City Council member. When asked by the City Council if these two candidates were qualified for the position, Ms. Boyd reported that they were not: Ms. Louis did not have the required municipal job experience, and Mr. Patterson did not meet the educational requirements. Ms. Louis and Mr. Patterson were offered to the City Council for a vote; Mayor Celestin walked out of the council room and did not vote; Mr. Patterson was selected by vote of the City Council. Mr. Patterson was aware that Mayor Celestin did not support his candidacy. Shortly after Mr. Patterson began as City Manager, Ms. Jones brought the October 23, 2003, Letter of Understanding between Mayor Celestin and Ms. Boyd to his attention. He reviewed the city charter and advised Mayor Celestin that he did not have the authority to give Ms. Boyd a salary increase. Only the City Manager has that authority under the charger. Mr. Patterson also discussed the matter of the salary increase referenced in the third paragraph of the October 23, 2003, Letter of Understanding with Ms. Boyd. He told her that Mayor Celestin did not have the authority to effect such a salary increase, and he also told her that he was not going to recommend to the City Council that it increase her pay grade to accommodate the salary increase promised by Mayor Celestin. Having reviewed the pay grades of the administrative department heads, Mr. Patterson did not consider a raise for Ms. Boyd appropriate at the time. Because he had been advised that the Police Chief was directly supervised by the City Manager and that only the City Manager had the authority to recommend a salary increase for the Police Chief, Mayor Celestin did not propose to the City Council that it either increase Ms. Boyd's salary as Police Chief or amend the City's pay plan to increase the pay grade for the Police Chief so that Ms. Boyd could receive the salary increase included in the Letter of Understanding dated October 23, 2003. Mayor Celestin did, however, assure Ms. Boyd several times that he would "take care of it." At the last meeting of his tenure as mayor, Mayor Celestin proposed to the City Council that Ms. Saint Vil- Joseph receive a salary increase so that she could retain the same salary when she returned to her position as Deputy City Attorney that she received while serving as Interim City Attorney. Mr. Patterson did not oppose the proposal because the salary increase for Ms. Saint Vil-Joseph was not a "pay raise" as such, but, rather, implemented a prior decision of the City Council to achieve parity between the Deputy City Attorney and Deputy City Manager.8 An amendment in the pay plan to increase the pay grade for the Deputy City Attorney was passed by the City Council by a vote of 4 to 0, and the Personnel Action form dated May 2, 2005, reflecting a change of pay grade for the position of Deputy City Attorney was approved by Hans Ottinot, City Attorney; Ms. Jones, personnel directory; and Mr. Patterson, City Manager. Ms. Saint Vil-Joseph is a Haitian American. In October 2005, Ms. Boyd's pay grade was increased from 39 to 41, and she received a concomitant salary increase. Ms. Boyd presented the following testimony as evidence that the City's legitimate, non-discriminatory reason for failing to increase her pay grade and salary when she returned to her position as Police Chief in February 2004 was a pretext for discrimination on the basis of national origin:9 Q.[by Ms. Whitfield] And that's really your issue here, isn't it? You believe that he [Mayor Celestin] violated his letter of understanding with you, correct? He violated his letter of understanding and he's discriminated against me because of the clashes that we had pertaining to the hiring of Haitian African, the clash that we had over his referring to some of my directors are racist, and because I would not void a ticket that was given by another white officer, and the fact that I would not hire some of the people that he -- Q. Well, let me ask you this. When all of that happened, was that before he signed a letter of understanding with you or after? A. It was afterwards. Q. Was is [sic] before you went back to being police chief or after? A. It was during the period. Q. So it was during that period? A. It was before I returned to my position as police chief. Q. Okay. So when? When was it? A. There were several incidents. A couple of police applicants who he referred, one was a personal friend and I had to find out why they were turned down. Another incident pertaining to the -- he thought we weren't doing enough to hire Haitian applicants and wanted me to do away with the -- Q. Let me ask you this. You were both the interim city manager and the police chief at the same time? A. No. I was not. Q. Okay. Who was head of the police department then? A. I had my two assistant chiefs to alternate service as the acting police chief. Q. So as acting police chief, they would be responsible for making recommendations and hiring decision to take to the city manager? A. No. What they would do, if [sic] they would do the complete background process and they will [sic] decide on who was qualified and who was not, and because a couple of people did not get hired the mayor asked me about this and I had to meet with the assistant chief to find out why those individuals were disqualified. And they were for valid reasons, but the mayor did not want to believe me. He thought we were just not doing enough to hire Haitian Africans and made a suggestion -- or made the remark that he was going to bring Guy Eugene (phonetic_. who is a police lieutenant, Haitian police lieutenant with Miami, that maybe he would want my job as police chief. Q. Do you have any documentation or anything else to corroborate what you're telling use was said by Mayor Celestin about your hiring of Haitians or not hiring of Haitians? A. Only the testimony of my staff at the police department. Q. My question is, do you have any documentation here -- A. I didn't write that down. I didn’t -- discussions every day because I was trying to just get through the interim period and returning to be police chief.
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 from Unlawful Employment Practice filed by Gwendolyn Boyd. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 4th day of March, 2008.
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
The Issue Whether Respondent employer is guilty of an unlawful employment practice, to wit: failure to accommodate Petitioner's handicap and termination of Petitioner, on the basis of handicap discrimination.
Findings Of Fact Petitioner is an adult African-American male. After retiring from the United States Army with an excellent reputation, Petitioner was hired by Respondent Department of Corrections. When Respondent hired Petitioner it was aware he had a 10 percent physical impairment, as assigned by the Veterans' Administration (VA). Petitioner completed 512 hours of training and was certified as a Correctional Officer, pursuant to the Florida Statutes. At all times material, he was a "vested" State career service employee. Petitioner sustained an on-the-job injury on February 11, 2003, while employed by Respondent. Apparently, Petitioner was adequately performing his job duties up through the date of his injury. Respondent Employer provided workers' compensation and medical benefits as required by Chapter 440, Florida Statutes. These benefits were monitored by the State Risk Management Office within the Department of Insurance. The Employer instructed Petitioner not to return to work until he was medically released to return to work. Petitioner's injury was a torn medial meniscus (knee joint injury). He underwent collagen injections and lengthy physical therapy, but no surgery. His treating physician was Dr. Aguero. On July 21, 2003, Petitioner underwent a Functional Capacity Evaluation by a physical therapist. The report of this evaluation was typed up two days later and showed, in pertinent part, that: Mr. Brown demonstrated the capacity to sustain work tasks in the light strength category of physical demands. His . . . previous job was corrections officer. That job is estimated to be in the medium strength category. Known job duties of concern or particular relevance include: ability to move rapidly and to perform take- down and restraint procedures. Risk Management employees urged the treating physician to release Petitioner to return to work. On July 30, 2003, Dr. Aguero released Petitioner to return to work on light duty, with restrictions on standing, walking, and lifting. Presumably, Dr. Aguero believed Petitioner would be reassigned by the employer to appropriate light duty work until he reached maximum medical improvement from his knee injury. The Employer Department of Corrections, in fact, did assign Petitioner to "alternate duty" work when he returned to the correctional institution on or about July 30, 2003. Petitioner worked in the mail room for approximately three weeks thereafter. As of July 30, 2003, in addition to his 10 percent rating of permanent partial disability from the VA, Petitioner had gained a great deal of weight due to inactivity during the post-knee injury period. He also suffered from arthritis. On or about August 18, 2003, Dr. Aguero filled out a Workers' Compensation Maximum Medical Improvement (MMI) Form, designating that Petitioner had improved from his on-the-job injury as much as could be reasonably medically expected. As of that date, Dr. Aguero assigned him an additional two percent permanent partial disability rating, due to his on-the-job accident. The two percent rating carried continued work restrictions. Dr. Aguero provided the results of Petitioner's July 21, 2003, Functional Capacity Test score to the Employer (see Finding of Fact 6) attached to his MMI rating. Dr. Aguero's employment restrictions for Petitioner, post-MMI, as stated on the official MMI Form, say "See FCE," meaning that Dr. Aguero had adopted, as his restrictions on Petitioner, the functional abilities described in the July 21, 2003, Functional Capacity Evaluation Report. This meant that Petitioner was found by the physical therapist testing him to be unable to do these tasks on July 21, 2003, and the medical physician was saying for July 30, 2003, that Petitioner had achieved all the improvement he was going to achieve from the knee injury and he should not be required to do these activities on the job because he could not do them and trying to do them could be harmful to him. These restrictions included no extended periods of standing/walking, no balancing, and no significant lifting. Also, Petitioner was listed as being unable to lift 50 pounds, routinely. Essential Function A-4 of the Essential Functions of a Correctional Officer, which the Department of Corrections has adopted as its minimum standards for employment as a Correctional Officer, requires that a Correctional Officer be able to: Sit, walk, and stand for prolonged periods of time; stoop, squat, kneel, bend, run, and lift approximately 50 pounds on a routine basis. Within a day of receiving the MMI package, Petitioner's highest superior, the Warden, sent Petitioner home. Petitioner was subsequently provided a Predetermination Conference and a dismissal letter. Petitioner claimed to have begged to stay on in alternate duty positions, but neither he nor any of his local supervisors reported these requests for light duty or other accommodation of his permanent condition to the Employer's Americans With Disabilities Act Coordinator, Martie Taylor. It was not necessary under Chapter 760, Florida Statutes, for Petitioner to do more than ask his supervisors for an accommodation, but Ms. Taylor testified that even if Petitioner's supervisors had properly relayed his requests for accommodation to her, she knew of no way the Employer could have accommodated Petitioner's lifting restrictions. Petitioner related that supervisors made comments to him that they needed a fully functional "soldier in the field" and that his obesity and inability to run and subdue prisoners rendered him not fully functional as a correctional officer. Petitioner believes that his large size is an asset in commanding and subduing inmates but that Respondent is prejudiced against his size. Petitioner testified that he knew of insulin-dependent diabetics and of other obese correctional officers who did very well at regular employment with the Employer and that he knew of other correctional officers whom the Employer had permitted to stay employed at light duty longer than he had been allowed to stay on light duty. However, Petitioner had no knowledge of whether these employees had reached MMI or of which essential requirements of the job of Correctional Officer they were able, or unable, to perform while they were on light duty. In fact, the Department of Correction's Procedure 208.10, covering "Career service employee's right to alternate duty assignments," reads, in pertinent part: SPECIFIC PROCEDURES COORDINATION OF ALTERNATE DUTY: . . . * * * (c) The department does not have specific alternate duty positions. The employee will remain in her/his current position while performing alternate duties. * * * Certified Officers: Individuals employed in a certified officer's position must be prepared and able at all times to perform the essential functions of his/her position. If approved for alternate duty, an employee in a certified officer's position will be temporarily assigned to non-certified officer duties for the period of time during which the employee is determined by the Division of Risk Management to have a temporary partial disability. * * * (8) MAXIMUM MEDICAL IMPROVEMENT (c) When maximum medical improvement has been determined by the treating physical and information has been provided to the Division of Risk Management, the employee will be reassigned the duties and responsibilities of her/his regular position unless the employee cannot perform the essential functions of the position. In no way will the employee be allowed to continue to perform alternate duties once the maximum medical improvement has been determined by the Division of Risk Management. (Emphasis supplied) Petitioner pursued his employment rights before the Public Employees Relations Commission (PERC). PERC's Final Order (January 8, 2004) on this matter determined as a factual finding that Petitioner could not perform the essential duties of a correctional officer and accepted the hearing officer's findings of fact. Brown v. Dept. of Corrections, 19 FCSR 9 (2004). More specifically, the PERC hearing officer found that "Brown received maximum medical improvement on July 30, 2003, with a two percent impairment," and that "the doctor indicated on the evaluation that Brown has work restrictions and he cannot perform the standing and walking requirements of a correctional officer." At hearing, Brown indicated that he cannot perform the duties of a correctional officer . . . . He also stated that he cannot run . . . . In sum, the Agency demonstrated that it is undisputed that Brown cannot perform the essential duties of a correctional officer." Since there were no appeals, the findings of fact of the PERC hearing officer between the same two parties are res judicata; are presumed correct, and are binding herein as a matter of law. Some findings also constituted admissions of Petitioner. Loss of employment has been very hard on Petitioner and his family. On September 11, 2003, Petitioner applied for a disabled person license plate, reciting that he was so ambulatory disabled that he could not walk 200 feet without stopping to rest, and that he is severely limited in his walk due to an arthritic, neurological, or orthopedic condition. His treating physician signed this application, attesting to Petitioner's listed conditions. Petitioner's Answers to Respondent's Requests for Admission in the instant case concedes that he can perform jobs other than those of a correctional officer. Petitioner's testimony at hearing was to the effect that he still cannot perform all the duties of a correctional officer.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and the Charge of Discrimination herein, and awarding no attorney's fees or costs to Respondent. DONE AND ENTERED this 9th day of May, 2005, 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 9th day of May, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Horace Brown, Jr. 2012 Bradley Avenue Valdosta, Georgia 31602 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
