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

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





13Petitioner, )


16vs. ) CASE NO. 90-6475




29Respondent. )



34Pursuant to notice, a formal hearing was conducted in this case at West

47Palm Beach, Florida, on February 7, 1991, before Michael M. Parrish, a duly

60designated Hearing Officer of the Division of Administrative Hearings.

69Appearances for the parties at the hearing were as follows:


80FOR PETITIONER: Michael L. Cohen, Esquire

86Barristers Building

881615 Forum Place, Suite 1-B

93West Palm Beach, FL 33401

98FOR RESPONDENT: Hazel L. Lucas, Esquire

104School Board of Palm Beach County

1103970 RCA Boulevard, Suite 7010

115Palm Beach Gardens, FL 33410


124The basic issue in this case is whether the Respondent engaged in an

137unlawful employment practice within the meaning of Section 760.10, Florida

147Statutes, by not hiring the Petitioner.


155This case had its genesis in the timely filing of a Charge of

168Discrimination in which the Petitioner asserted, "[o]n October 25, 1988, I was

180denied rehire to the position of a Bus Driver," and in which he also asserted,

"195I believe I have been discriminated against because of my handicap, diabetes. .

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

220Relations to resolve the case informally, the Petitioner filed a timely Petition

232For Relief. In the Petition for Relief, the Petitioner asserted that the

244Respondent had wrongfully "terminated" his employment and also asserted that the

255Respondent's allegedly wrongful conducted was based on the Petitioner's obesity.

265The Petition For Relief also expressly adopted and incorporated by reference the

"277Petitioner/Employee's previous Complaints."

280The Respondent filed a timely Answer to the Petition For Relief, in which

293the Respondent denied all allegations of unlawful conduct and set forth several

305affirmative defenses. The Respondent's Answer was subsequently amended in

314certain minor details.

317At the hearing on February 7, 1990, the Petitioner testified on his own

330behalf, but did not call any other witnesses. The Petitioner did not offer any

344exhibits of his own, but did state his intent to rely on certain exhibits

358offered by the Respondent. The Respondent called three witnesses to testify at

370the hearing and presented the deposition testimony of two other witnesses. The

382Respondent also offered eleven exhibits, all of which were received in evidence.

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

403Following the hearing, a transcript of the proceedings was filed with the

415Hearing Officer on March 6, 1991. By order at the close of the hearing, the

430parties were allowed twenty days from the filing of the transcript within which

443to file their proposed recommended orders. As of the date of this Recommended

456Order, the Petitioner has not filed any post-hearing document. The Respondent

467filed a proposed recommended order containing proposed findings of fact and

478conclusions of law. The substance of all proposed findings of fact submitted by

491the Respondent has been incorporated into the Findings of Fact which follow,

503with the exception of a few unnecessary details.


5141. The Respondent's Policies 3.10 and 3.11 set forth conditions of

525employment and requirements for pre-employment medical examinations which must

534be complied with by "all applicants who are recommended for employment" by the

547Respondent School Board.

5502. The Petitioner was initially employed by the Palm Beach County School

562Board as a probationary bus driver effective November 3, 1981. On August 18,

5751986, the Petitioner submitted his resignation from that position effective June

58611, 1986.

5883. On September 16, 1988, the Petitioner submitted a new application for

600employment with the Respondent in the position of school bus driver. Pursuant

612to School Board policy, the Petitioner was referred to the Occupational Health

624Clinic for his pre-employment physical examination.

6304. The Respondent's application process, which is governed by School Board

641Policies 3.10 and 3.11, requires that all applicants for employment sign a form

654which informs the applicants of the employment practice. The information sheet,

665which the Petitioner executed, has a section wherein the applicants acknowledge

676that they "must successfully pass health screening administered by the

686District's Occupational Health Clinic" to be considered for employment.

6955. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda

707Cherryholmes-Perkins. She has held that position since January of 1987. Ms.

718Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in

729Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As

740Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the

750pre-employment process, which all applicants for full-time employment must


7606. During the Petitioner's pre-employment physical examination, he was

769tested to insure that he met both the Florida Department of Education Standards

782and the Respondent's Bus Driver Standards. The Respondent's Bus Driver

792Standards have been approved by the Department of Education, Division of Public

804Schools, School Transportation Management Section. An applicant who fails to

814meet both the Florida Departinent of Education Standards and the Respondent's

825Bus Driver Standards is ineligible to drive a school bus for the Respondent.

8387. The Petitioner knew he had to satisfactorily complete the pre-

849employment process to be eligible for employment. When the Petitioner was

860examined in connection with his 1988 application for employment, he was found to

873be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or

883morbid obesity. Because the Petitioner had not been previously diagnosed as

894having diabetes, he was assigned to and was allowed to perform twenty-one hours

907of probationary services before the Respondent discovered that the Petitioner

917was not qualified to be a school bus driver.

9268. When it was discovered that the Petitioner did not meet the school bus

940driver requirements, he was placed in a "medical hold" status by the

952Occupational Health Clinic. The "medical hold" status was for thirty days.

963During the "medical hold" period the Petitioner was given an opportunity to

975demonstrate compliance with the State of Florida Standards and with the

986Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner

995in this regard by providing him with free follow-up testing during the "medical

1008hold" period. At the end of the "medical hold" period, the Petitioner still

1021failed to meet the State and School Board employment standards. During that

1033period the Petitioner also failed to follow his physician's medical

1043prescription. At the conclusion of the "medical hold" period the Petitioner was

1055given a medical denial for the position of school bus driver. The primary

1068reason for the medical denial was the Petitioner's diabetes, which was still

1080uncontrolled. Secondary reasons were the additional health complications

1088resulting from the Petitioner's hypertension and obesity. As a result of the

1100uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school

1113bus, because patients with that condition are at risk of having cognitive

1125problems. The Petitioner's other problems made it even more unsafe for him to

1138drive a school bus because patients with uncontrolled hypertension are at

1149greater risk of stroke, heart attack, and similar cardiovascular incidents, and

1160the Petitioner's obesity caused him to have a limited range of motion in his



11789. The Division of Administrative Hearings has jurisdiction over the

1188parties to and the subject matter of this proceeding. Section 120.57(1),

1199Florida Statutes.

120110. Section 230.23(5), Florida Statutes, authorizes the Respondent to

"1210designate positions to be filled and to prescribe the qualifications for those


122311. Section 234.091, Florida Statutes, states, in pertinent part, that

"1233[e]ach school bus driver shall ... possess such other qualifications as are

1245prescribed by the state-board...."

124912. Rule 6A-3.0141(5)(a), Florida Administrative Code, requires that

1257applicants for employment as school bus drivers submit "to the Superintendent a

1269written application for employment in a form prescribed by the School Board."

1281And Rule 6A-3.0141(5)(c), Florida Administrative Code, requires an applicant for

1291a school bus driver position to "successfully pass a physical examination Form

1303ESE 479, given by a physician designated by the School Board and a reflex test

1318administered by the school district."

132313. It is uncontested that the Petitioner resigned from his original

1334position with the Respondent in 1986. It is also uncontested that the

1346Petitioner submitted a completed application for new employment on September 16,

13571988. Since the Petitioner was reapplying for the school bus driver position

1369after a two year break in employment, the Petitioner was subject to the

1382employment requirements of Rule 6A-3.0141(5), Florida Administrative Code.

139014. It is not disputed that during the Petitioner's pre- employment

1401physical examination he was found to be suffering from diabetes which was so

1414severe as to require that the Petitioner be treated with insulin. After the

1427Petitioner was placed on insulin, he failed to follow his medical prescription.

1439Because of the safety risks which result from uncontrolled diabetes, the absence

1451of such a condition is a "bona fide occupational qualification reasonably

1462necessary for the performance of the particular employment." See Kraft v.

1473Bechtel Power Corporation, 483 So.2d 56 (Fla. 3d DCA 1986.) Further, because of

1486those same safety risks, a person with the Petitioner's medical condition is not

1499entitled to a "trial run" at the job. See School Board of Pinellas County v.

1514Rateau, 449 So.2d 839 (Fla. 1st DCA 1984).

152215. Section 760.10(8)(a), Florida Statutes, provides, in pertinent part:

1531(8) Notwithstanding any other provision of

1537this section, it is not an unlawful employment

1545practice under ss. 760.01-760.10 for an

1551employer ... to:

1554(a) Take or fail to take any action on the

1564basis of ... handicap ... in those certain

1572instances in which ... absence of a particular

1580handicap ... is a bona fide occupational

1587qualification reasonably necessary for the

1592performance of the particular employment to

1598which such action or inaction is related.

160516. On the basis of all of the foregoing, it is concluded that the

1619Respondent in this case has not committed an unlawful employment practice within

1631the meaning of Sections 760.01-760.10, Florida Statutes.


1639For all of the foregoing reasons, it is recommended that a Final Order be

1653issued in this case dismissing the Petition For Relief and denying all relief

1666sought by the Petitioner.

1670DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of

1682July, 1991.


1685MICHAEL M. PARRISH, Hearing Officer

1690Division of Administrative Hearings

1694The DeSoto Building

16971230 Apalachee Parkway

1700Tallahassee, Florida 32399-1550


1704Filed with the Clerk of the

1710Divsion of Administrative Hearings

1714this 26th day of July, 1991.


1722Michael L. Cohen, Esquire

1726Barristers Building

17281615 Forum Place, Suite 1-B

1733West Palm Beach, FL 33401

1738Hazel L. Lucas, Esquire

1742School Board of Palm Beach County

17483970 RCA Boulevard, Suite 7010

1753Palm Beach Gardens, FL 33410

1758Mr. Ronald M. McElrath,

1762Executive Director

1764Florida Commission of Human Relations

1769325 John Knox Road

1773Building F, Suite 240

1777Tallahassee, Florida 32399-1925

1780Dana Baird, Esquire

1783General Counsel

1785Florida Commission of Human Relations

1790325 John Knox Road

1794Building F, Suite 240

1798Tallahassee, Florida 32399-1925

1801Ms. Margaret Jones, Clerk

1805Florida Commission of Human Relations

1810325 John Knox Road

1814Building F, Suite 240

1818Tallahassee, Florida 32399-1925


1827All parties have the right to submit written exceptions to this Recommended

1839Order. All agencies allow each party at least 10 dass in which to submit

1853written exceptions. Some agencies allow a larger period within which to submit

1865written exceptions. You should contact the agemcu that will issue the final

1877order in this case concerning agency rules on the deadline for filing Exceptions

1890to this Recommended Order. Any exceptions to this Recommended Order should be

1902filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 01/16/1992
Proceedings: Final Order Dismissing Petition for Relief From an Unlawful Employment Practice filed.
Date: 01/13/1992
Proceedings: Agency Final Order
Date: 01/13/1992
Proceedings: Recommended Order
Date: 07/26/1991
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 2/7/91.
Date: 03/28/1991
Proceedings: Respondents Proposed Findings of Fact and Conclusions of Law (for HO to sign) filed.
Date: 03/15/1991
Proceedings: Letter to Parties of Record from MMP (re: Transcript) sent out.
Date: 03/06/1991
Proceedings: Notice of Filing; Transcript of Proceedings filed.
Date: 02/07/1991
Proceedings: CASE STATUS: Hearing Held.
Date: 02/04/1991
Proceedings: Order (Motion to Amend Boards Answer and Affirmative Defenses is GRANTED) sent out.
Date: 02/04/1991
Proceedings: Notice of Taking Deposition filed. (From Hazel L. Lucas)
Date: 01/31/1991
Proceedings: Notice of Taking Telephonic Deposition filed. (from Hazel L. Lucas)
Date: 01/24/1991
Proceedings: Respodnent's Motion to Amend Respondent's Answer and Affirmative Defenses; Respondent's Amended Answer And Affirmative Defenses in Responseto Petitioner's Petition For Relief w/(unsigned) Order filed. (From Hazel L Lucas)
Date: 01/22/1991
Proceedings: Order Permitting Telephone Deposition (by L. Caldwell) sent out.
Date: 01/17/1991
Proceedings: (Respondent) Motion to Take A Telephonic Deposition For Submission Into Evidence filed. (from Hazel L. Lucas)
Date: 12/10/1990
Proceedings: Notice of Hearing sent out. (hearing set for Feb. 7, 1991: 10:00 am:West Palm Beach)
Date: 11/27/1990
Proceedings: Ltr. to WRD from H. L. Lucas re: Reply to Initial Order filed.
Date: 11/06/1990
Proceedings: Initial Order issued.
Date: 10/26/1990
Proceedings: Election of Method of Preservation of Record filed. (from Thomas J. Mills)
Date: 10/17/1990
Proceedings: Respondent's Answer and Affirmative Defenses in Response to Petitioner's Petition for Relief filed.
Date: 10/12/1990
Proceedings: Transmittal of Petition; Complaint; Notice of Determination;

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
West Palm Beach, Florida

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