00-004425 Maggie Pearle Vinson vs. Department Of Children And Family Services, D/B/A North Florida Evaluation And Treatment Center Status: Closed Recommended Order on Tuesday, September 11, 2001.

Summary: Petitioner failed to show that Respondent did not reasonably accommodate her disability. She was still unable to adequately perform her duties and so had to be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGGIE PEARLE VINSON, )

)

Petitioner, )

)

vs. ) Case No. 00-4425

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, d/b/a NORTH )

FLORIDA EVALUATION AND )

TREATMENT CENTER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, Administrative Law Judge of the Division

of Administrative Hearings, on May 15, 2001. The hearing was

conducted in Gainesville, Florida.

APPEARANCES

For Petitioner : Maxie Broome, Jr., Esquire

3120 Atlantic Boulevard, Suite Two

Jacksonville, Florida 32207-8814

For Respondent : Dennis M. Flath, Esquire

1200 Northeast 55th Boulevard

Gainesville, Florida 32641-2759

STATEMENT OF 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.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of

discrimination by the above-named Petitioner with the Florida

Commission on Human Relations. Ultimately, a finding of "no

cause" was entered by the Florida Commission on Human Relations

(Commission) and the Petitioner elected to file a petition for

relief in order to obtain a hearing before the Division of

Administrative Hearings. An answer to the petition was filed by

the Respondent, containing denials that discrimination had been

perpetrated by the Respondent and various affirmative defenses

including the defense that the agency had been released from all

claims and causes of action by the Petitioner's execution of a

general release on September 11, 1997, in which the release

discharged and surrendered all claims whether or not asserted

against the agency, without any limitation, except that a right

to pursue a claim under the Americans With Disabilities Act was

specifically reserved. It was stipulated at hearing that the

sole issue to be litigated in this case involved the

Petitioner's charge of handicap discrimination.

The Respondent also contends, by way of defense and by

Motion to Dismiss, that the claim for relief was barred because

it was filed beyond the 35-day period allowed by Section 760.11,

Florida Statutes, and because some of the allegations occurred

on or before October 1, 1996, and therefore are barred because

they allegedly occurred more than one year prior to the filing

of the claim. The Motion to Dismiss was granted in part to the

extent that evidence of discriminatory events allegedly

occurring before October 1, 1996, would be allowed only to show

a continuing pattern or practice but not to stand alone, in and

of themselves, as actionable violations of Chapter 760, Florida

Statutes. The Motion to Dismiss concerning the Petitioner's

purported violation of the 35-day period allowed by Section

760.11, Florida Statutes, for filing the Petition for Relief

after the "no cause" determination, was denied because the

Commission's rule allows for a three-day mailing period if the

response to the cause determination is made by mail. The

Petitioner signed the Petition on the 35th day and apparently

mailed it so that it arrived on Monday, October 9, 2000, at the

Commission. Since the third day after the 35-day time period

would have occurred on a weekend, on Saturday October 7, 2000,

it is appropriate that timely filing be considered to have

occurred on the next business day, Monday October 9, 2000, when

the office of the Commission was open and available to receive

the mailing.

The cause came on for hearing as noticed. At the outset of

the hearing the Petitioner conceded that the issue to be

resolved was limited to the charge of handicap discrimination

and that the other claims were stipulated as being previously

resolved. The Petitioner presented her own testimony and three

exhibits, and the Respondent presented the testimony of two

witnesses and Respondent's Exhibits A-M. All exhibits, without

objection, were admitted into evidence. Upon concluding the

proceeding the parties were accorded a stipulated 30-day period

to file proposed recommended orders. Ultimately, however, no

transcript was filed and no proposed recommended orders have

been filed.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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).

10. 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.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case. Section 120.57(1), Florida Statutes, and Chapter 760,

Florida Statutes.

12. The burden of proof responsibilities in discrimination

cases brought under Chapter 760, Florida Statutes, are best

articulated in Department of Correction's vs. Chandler , 582

So. 2d 1183 (Fla. 1st DCA 1991), citing with approval Texas

Department of Community Affairs vs. Burdine , 450 U.S. 248, 101

Supreme Court 1089, 67 Lawyers Edition Second 207 (1981). The

Chandler opinion is instructive in stating that:

Pursuant to the Texas Department of

Community Affairs vs. Burdine , 450 U.S. 248,

101 Supreme Court 1089, 67 Lawyers Edition

Second 207 (1981), formula, the employee has

the initial burden of establishing a prima

facie case of intentional discrimination,

which once established raises a presumption

that the employer discriminated against the

employee. If the presumption arises, the

burden shifts to the employer to present

sufficient evidence to raise a genuine issue

of fact as to whether the employer

discriminated against the employee. The

employer may do this by stating a

legitimate, non-discriminatory reason for

the employment decision, a reason which is

clear, reasonably specific, and worthy of

credence. Because the employer has the

burden of production, not of persuasion,

which remains with the employee, it is not

required to persuade the trier of fact that

its decision was actually motivated by the

reason given. If the employer satisfies its

burden, the employee must then persuade the

fact finder that the proffered reason for

the employment decision is a pretext for

intentional discrimination. The employee

may satisfy this burden by showing directly

that a discriminatory reason, more likely

than not, motivated the decision, or

indirectly by showing that the proffered

reason for the employment decision was not

worthy of belief. If such proof is

adequately presented, the employee satisfies

his or her ultimate burden of demonstrating

by a preponderance of the evidence that he

or she has been a victim of intentional

discrimination.

13. The Florida Commission on Human Relations stated in

Clark vs. Jackson County Hospital , Florida Commission on Human

Relations Final Order in DOAH Case No: 95-4956, entered July 1,

1997, that:

. . .to establish a prima facie case of

handicap discrimination, the Petitioner must

show: (1) she is handicapped; (2) that she

performed or is able to perform her assigned

duties satisfactorily; and (3) that despite

her satisfactory performance, she was

terminated. O'Neal vs. Sarasota County

School Board , 18 FALR 1129, at 1130 (FCHR.

1994), citing Swenson-Davis vs. Orlando

Partners, Inc. , 16 FALR 792, at 798 (FCHR.

1993).

14. In applying these principles to the facts found above

it must be concluded that the Petitioner established her

handicap or disability. She had the specific medical

restrictions involving her back and leg pain described in the

above Findings of Fact, chiefly involved in not lifting

excessive weight or in climbing stairs. She also proved, and

indeed it is undisputed that these conditions were known to her

employer. The Petitioner, however, did not proceed to prove the

other portion of her prima facie case in that she did not prove

that she performed her job satisfactorily and was terminated

despite satisfactory job performance.

15. The Petitioner herein did not prove that she was able

to do her job satisfactorily with or without reasonable

accommodation. The restriction provided by her doctor against

climbing stairs, first with only one flight per day permissible

and then with none, was accommodated for a long period of time

by the Respondent, but it was not reasonable in that it

prevented her from doing the majority of her duties which had to

be handled by other employees. The employer searched

unsuccessfully for other jobs which she could perform which

would accommodate her disability. The final solution proposed

by her employer, which involved regular duties which were much

lighter, was performing her job on the night shift. She

voluntarily chose not to accept that accommodation. Although

the employer dismissed her because she was unable to

satisfactorily perform her duties, after its years of efforts to

help her do so, at least a portion of the reason for that

ultimate decision was her voluntary refusal to accept employment

on the lighter duty night shift. She also chose, on or about

the time of her dismissal, to seek disability retirement status.

16. For purposes of proving failure to accommodate the

handicapped, a Petitioner must minimally show that he has a

physical impairment which substantially limits one or more of

his major life activities, that the employer knew of the

handicap and the employer failed to find a job function

consistent with those physical limitations. There is no

question that the physical impairments involved in this case

substantially limit one or more of the Petitioner's major life

activities and it is undisputed that the employer knew of this

handicap. The Petitioner must also show that the employer

failed to reasonably accommodate her disability with a job

function consistent with her physical limitations. See Section

760.22(7)(1), Florida Statutes, and Brand vs. Florida Power

Corporation , 633 So. 2d 504 (Fla. 1st DCA 1994).

17. In response to the doctor's limitations, which the

employer was aware of, and which legally constitutes her

"handicap" or disability, the employer accommodated the

Petitioner by limiting the duties on the Petitioner's shifts.

Actually, it was more than a reasonable accommodation because it

resulted in a major portion of the Petitioner's duties being

handled by other employees. This light duty also proceeded for

more than the normal four to six-month period established by

unrefuted evidence and indeed lasted more than four years.

Moreover, the Respondent made efforts to place the Petitioner in

other positions which she could satisfactorily perform with her

handicap, but could find none other than the temporary pharmacy

position which was never expected by the Petitioner or the

Respondent to be permanent. The employer did arrive at a

reasonable accommodation involving placing the Petitioner in the

less strenuous night shift where she may have been able to

satisfactorily perform. Nonetheless, the Petitioner elected,

for understandable, if not legally germane reasons, to decline

changing to the night shift.

18. An employer, however, is not required to create an

entirely new job for a handicapped employee or to hire others to

do his job for him, nor must it re-allocate work. See 29 CFR

app. Section 1630.2(0); Brand vs. Florida Power Corporation ,

supra ; Howell vs. Michelin Tire Corporation , 860 F.Supp 488 (MD

Alabama 1994); Shiring vs. Runyon , 90 F.3d 827, (3rd Circuit

1996). The employee has the burden to prove the existence and

reasonableness of any proposed accommodations for his handicap

which have not been offered him. Taylor vs. Food World, Inc. ,

133 F.2d 1419 (11th Circuit 1998). The Petitioner has not met

that burden herein by showing a reasonable proposed

accommodation which the employer could accord her without a

major re-assignment of work, or the creation of an entirely new

job position or by hiring others to simply do the employee's job

or the major portion of it. In summary, the Petitioner failed

to demonstrate a prima facie case in the above particulars. She

has not demonstrated that she has suffered discrimination on

account of her disability or handicap.

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

Th e DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.