90-006475 John J. Sanfratello vs. Palm Beach County School Board Status: Closed Recommended Order on Friday, July 26, 1991.

Summary: Absence of uncontrolled diabetes is a bona fide occupational qualification for employment as a school bus driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN J. SANFRATELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6475

)

PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West

Palm Beach, Florida, on February 7, 1991, before Michael M. Parrish, a duly

designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Michael L. Cohen, Esquire

Barristers Building

1615 Forum Place, Suite 1-B

West Palm Beach, FL 33401

FOR RESPONDENT: Hazel L. Lucas, Esquire

School Board of Palm Beach County

3970 RCA Boulevard, Suite 7010

Palm Beach Gardens, FL 33410

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Respondent engaged in an

unlawful employment practice within the meaning of Section 760.10, Florida

Statutes, by not hiring the Petitioner.

PRELIMINARY STATEMENT

This case had its genesis in the timely filing of a Charge of

Discrimination in which the Petitioner asserted, "[o]n October 25, 1988, I was

denied rehire to the position of a Bus Driver," and in which he also asserted,

"I believe I have been discriminated against because of my handicap, diabetes. .

." Following an investigation and efforts by the Florida Commission on Human

Relations to resolve the case informally, the Petitioner filed a timely Petition

For Relief. In the Petition for Relief, the Petitioner asserted that the

Respondent had wrongfully "terminated" his employment and also asserted that the

Respondent's allegedly wrongful conducted was based on the Petitioner's obesity.

The Petition For Relief also expressly adopted and incorporated by reference the

"Petitioner/Employee's previous Complaints."

The Respondent filed a timely Answer to the Petition For Relief, in which

the Respondent denied all allegations of unlawful conduct and set forth several

affirmative defenses. The Respondent's Answer was subsequently amended in

certain minor details.

At the hearing on February 7, 1990, the Petitioner testified on his own

behalf, but did not call any other witnesses. The Petitioner did not offer any

exhibits of his own, but did state his intent to rely on certain exhibits

offered by the Respondent. The Respondent called three witnesses to testify at

the hearing and presented the deposition testimony of two other witnesses. The

Respondent also offered eleven exhibits, all of which were received in evidence.

(Two of the exhibits were transcripts of deposition testimony.)

Following the hearing, a transcript of the proceedings was filed with the

Hearing Officer on March 6, 1991. By order at the close of the hearing, the

parties were allowed twenty days from the filing of the transcript within which

to file their proposed recommended orders. As of the date of this Recommended

Order, the Petitioner has not filed any post-hearing document. The Respondent

filed a proposed recommended order containing proposed findings of fact and

conclusions of law. The substance of all proposed findings of fact submitted by

the Respondent has been incorporated into the Findings of Fact which follow,

with the exception of a few unnecessary details.

FINDINGS OF FACT

1. The Respondent's Policies 3.10 and 3.11 set forth conditions of

employment and requirements for pre-employment medical examinations which must

be complied with by "all applicants who are recommended for employment" by the

Respondent School Board.

2. The Petitioner was initially employed by the Palm Beach County School

Board as a probationary bus driver effective November 3, 1981. On August 18,

1986, the Petitioner submitted his resignation from that position effective June

11, 1986.

3. On September 16, 1988, the Petitioner submitted a new application for

employment with the Respondent in the position of school bus driver. Pursuant

to School Board policy, the Petitioner was referred to the Occupational Health

Clinic for his pre-employment physical examination.

4. The Respondent's application process, which is governed by School Board

Policies 3.10 and 3.11, requires that all applicants for employment sign a form

which informs the applicants of the employment practice. The information sheet,

which the Petitioner executed, has a section wherein the applicants acknowledge

that they "must successfully pass health screening administered by the

District's Occupational Health Clinic" to be considered for employment.

5. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda

Cherryholmes-Perkins. She has held that position since January of 1987. Ms.

Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in

Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As

Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the

pre-employment process, which all applicants for full-time employment must

satisfy.

6. During the Petitioner's pre-employment physical examination, he was

tested to insure that he met both the Florida Department of Education Standards

and the Respondent's Bus Driver Standards. The Respondent's Bus Driver

Standards have been approved by the Department of Education, Division of Public

Schools, School Transportation Management Section. An applicant who fails to

meet both the Florida Departinent of Education Standards and the Respondent's

Bus Driver Standards is ineligible to drive a school bus for the Respondent.

7. The Petitioner knew he had to satisfactorily complete the pre-

employment process to be eligible for employment. When the Petitioner was

examined in connection with his 1988 application for employment, he was found to

be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or

morbid obesity. Because the Petitioner had not been previously diagnosed as

having diabetes, he was assigned to and was allowed to perform twenty-one hours

of probationary services before the Respondent discovered that the Petitioner

was not qualified to be a school bus driver.

8. When it was discovered that the Petitioner did not meet the school bus

driver requirements, he was placed in a "medical hold" status by the

Occupational Health Clinic. The "medical hold" status was for thirty days.

During the "medical hold" period the Petitioner was given an opportunity to

demonstrate compliance with the State of Florida Standards and with the

Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner

in this regard by providing him with free follow-up testing during the "medical

hold" period. At the end of the "medical hold" period, the Petitioner still

failed to meet the State and School Board employment standards. During that

period the Petitioner also failed to follow his physician's medical

prescription. At the conclusion of the "medical hold" period the Petitioner was

given a medical denial for the position of school bus driver. The primary

reason for the medical denial was the Petitioner's diabetes, which was still

uncontrolled. Secondary reasons were the additional health complications

resulting from the Petitioner's hypertension and obesity. As a result of the

uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school

bus, because patients with that condition are at risk of having cognitive

problems. The Petitioner's other problems made it even more unsafe for him to

drive a school bus because patients with uncontrolled hypertension are at

greater risk of stroke, heart attack, and similar cardiovascular incidents, and

the Petitioner's obesity caused him to have a limited range of motion in his

spine.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

10. Section 230.23(5), Florida Statutes, authorizes the Respondent to

"designate positions to be filled and to prescribe the qualifications for those

positions."

11. Section 234.091, Florida Statutes, states, in pertinent part, that

"[e]ach school bus driver shall ... possess such other qualifications as are

prescribed by the state-board...."

12. Rule 6A-3.0141(5)(a), Florida Administrative Code, requires that

applicants for employment as school bus drivers submit "to the Superintendent a

written application for employment in a form prescribed by the School Board."

And Rule 6A-3.0141(5)(c), Florida Administrative Code, requires an applicant for

a school bus driver position to "successfully pass a physical examination Form

ESE 479, given by a physician designated by the School Board and a reflex test

administered by the school district."

13. It is uncontested that the Petitioner resigned from his original

position with the Respondent in 1986. It is also uncontested that the

Petitioner submitted a completed application for new employment on September 16,

1988. Since the Petitioner was reapplying for the school bus driver position

after a two year break in employment, the Petitioner was subject to the

employment requirements of Rule 6A-3.0141(5), Florida Administrative Code.

14. It is not disputed that during the Petitioner's pre- employment

physical examination he was found to be suffering from diabetes which was so

severe as to require that the Petitioner be treated with insulin. After the

Petitioner was placed on insulin, he failed to follow his medical prescription.

Because of the safety risks which result from uncontrolled diabetes, the absence

of such a condition is a "bona fide occupational qualification reasonably

necessary for the performance of the particular employment." See Kraft v.

Bechtel Power Corporation, 483 So.2d 56 (Fla. 3d DCA 1986.) Further, because of

those same safety risks, a person with the Petitioner's medical condition is not

entitled to a "trial run" at the job. See School Board of Pinellas County v.

Rateau, 449 So.2d 839 (Fla. 1st DCA 1984).

15. Section 760.10(8)(a), Florida Statutes, provides, in pertinent part:

(8) Notwithstanding any other provision of

this section, it is not an unlawful employment

practice under ss. 760.01-760.10 for an

employer ... to:

(a) Take or fail to take any action on the

basis of ... handicap ... in those certain

instances in which ... absence of a particular

handicap ... is a bona fide occupational

qualification reasonably necessary for the

performance of the particular employment to

which such action or inaction is related.

16. On the basis of all of the foregoing, it is concluded that the

Respondent in this case has not committed an unlawful employment practice within

the meaning of Sections 760.01-760.10, Florida Statutes.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that a Final Order be

issued in this case dismissing the Petition For Relief and denying all relief

sought by the Petitioner.

DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of

July, 1991.

___________________________________

MICHAEL M. PARRISH, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

904/488-9675

Filed with the Clerk of the

Divsion of Administrative Hearings

this 26th day of July, 1991.

COPIES FURNISHED:

Michael L. Cohen, Esquire

Barristers Building

1615 Forum Place, Suite 1-B

West Palm Beach, FL 33401

Hazel L. Lucas, Esquire

School Board of Palm Beach County

3970 RCA Boulevard, Suite 7010

Palm Beach Gardens, FL 33410

Mr. Ronald M. McElrath,

Executive Director

Florida Commission of Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire

General Counsel

Florida Commission of Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32399-1925

Ms. Margaret Jones, Clerk

Florida Commission of Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32399-1925

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 dass in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agemcu that will issue the final

order in this case concerning agency rules on the deadline for filing Exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.