01-003837 Richard Mastomarino vs. Pinellas Suncoast Transit Authority Status: Closed Recommended Order on Tuesday, April 9, 2002.

Summary: Petitioner, who was diagnosed with diabetic retinopathy, was disabled and no longer capable of driving a bus and could not perform the essential functions of the job; no discrimination; no denial of reasonable accommodation; dismiss.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD MASTOMARINO, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3837

)

PINELLAS SUNCOAST TRANSIT )

AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A f ormal hearing was held by Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

in the above - styled case on January 28, 2002, in Clearwater,

Florida.

APPEARANCES

For Petitioner: Craig L. Berman, Esquire

Berman Law Firm, P. A.

360 Central Avenue, Suite 1260

St. Petersburg, Florida 33701

For Respondent: Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman & Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Florida 33759

STATEMENT OF THE ISSUES

Whether Petitioner was denied reasonable accommodation for

his disability by Respondent in violation of the Pinellas County

Code, Chapter 70 (“Chapter 70").

Whether Petitioner was wrongfully terminated from his

position as a bus operator by Respondent because of his

disability in violation of Chapter 70.

PRELIMINARY STATEMENT

On or about August 12, 1997, Petitioner filed a Charge of

Discrimination with the St. Petersburg Community Affairs

Department, Human Relations Division, alleging that Respondent

discriminated against him on the basis of his disability. He

had requested and was denied reasonable acco mmodation for his

disability while employed by Respondent as a bus operator and

was subsequently terminated in violation of the Americans with

Disabilities Act (“ADA”) and Chapter 70. After investigation,

the Human Relations Division issued a determinatio n on

November 27, 2000. Thereafter, on July 18, 2001, the Human

Relations Division filed a Complaint for relief with the

Community Affairs Department alleging that Petitioner was

subjected to adverse terms and conditions of his employment,

including the denial of reasonable accommodation and termination

from employment, because of his disability, diabetic

retinopathy. On August 20, 2001, the Human Relations Division

requested an administrative hearing be conducted by the Division

of Administrative Hearin gs.

Petitioner’s claims were referred to the Division of

Administrative Hearings and were scheduled for a final hearing

on November 28, 2001. On November 19, 2001, Respondent filed a

Motion to Dismiss based on the fact that the Human Relations

Division failed to request an administrative hearing within four

years of the date of the last act of alleged discrimination,

which Petitioner alleged in his Charge as June 10, 1997, the

date of his termination. The Motion also sought the dismissal

of the ADA cla ims for lack of jurisdiction. A teleconference

was conducted on the Motion on November 26, 2001, during which

the parties consented to a continuance of the final hearing.

In response to the Motion to Dismiss, Administrative Law

Judge Lawrence P. Steven son issued an Order finding that

Petitioner timely filed the Charge of Discrimination but that

the Human Relations Division did not timely issue the cause

determination -- the necessary predicate to a hearing before the

Division of Administrative Hearings. The Order concluded that

the Human Relations Division’s tardiness was not within the

control of Petitioner and should not be interpreted to his

prejudice. It was noted, however, that the Division of

Administrative Hearings does not have jurisdiction over claims

made under the ADA. The final hearing was rescheduled to

January 28, 2002, and the case was reassigned to the undersigned

Administrative Law Judge.

At the hearing, Petitioner, represented by counsel,

testified on his own behalf and offered the t estimony of Gail

Bilbrey, Benefits Specialist; Roger Mogle, Director of Human

Resources; and Roger Sweeney, Executive Director. Petitioner’s

Exhibits 1 through 16 were admitted into evidence. Respondent,

also represented by counsel, recalled Gail Bilbrey and also

presented the testimony of Susan Lanham. Respondent’s

Exhibits 1 through 5 were admitted into evidence.

At the close of the hearing, the parties agreed to file

proposed findings of fact and conclusions of law, and briefs in

support of their po sition, within 20 days of the filing of a

transcript of the hearing. A Transcript of the hearing was

filed on February 11, 2002. Each party timely filed their

Proposed Findings of Fact and Conclusion of Law, and they have

been given careful consideration in the preparation of this

Recommended Order. On March 11, 2002, Respondent filed a Motion

to Strike and Petitioner filed a response on March 14, 2002.

Upon review of the record, Respondent's motion is denied.

FINDINGS OF FACT

1. Petitioner, Richard Ma stromarino, is a resident of St.

Petersburg, Pinellas County, Florida.

2. Respondent, Pinellas Suncoast Transit Authority, is

publicly funded transit agency and is an employer under Pinellas

County Code, Chapter 70.

3. Petitioner was employed by Respond ent from May 7, 1979,

until June 10, 1997, as a bus operator. The position of bus

operator requires a commercial driver’s license.

4. After experiencing vision problems, Petitioner visited

his primary physician in February 1997. The primary physician

d iagnosed Petitioner with diabetic retinopathy and referred him

to an ophthalmologist. After his diagnosis, Petitioner informed

his immediate supervisor of his condition and availability to do

light - duty work, and requested a medical leave form to take wit h

him to his appointment with the ophthalmologist.

5. On March 3, 1997, Petitioner visited ophthalmologist

Dr. William T. Cobb, who confirmed the diagnosis of diabetic

retinopathy, a condition that causes the blood vessels in the

retina of the eye to exc rete liquid and blood, thus impairing

vision. Dr. Cobb informed Petitioner that as a result of his

diabetic retinopathy, his vision was insufficient to drive any

vehicle, including PSTA buses. In a Progress Report dated

March 3, 1997, Dr. Cobb indicated that Petitioner “works as a

bus driver and his occupation is threatened by his ocular

disease.” Dr. Cobb also completed Petitioner’s medical leave

form entitled Certification of Health Care Provider. On the

form, Dr. Cobb described Petitioner’s vision a s “limited to less

than required for driving a bus.” The form also inquired

whether Petitioner was able to perform any one or more of the

essential functions of his job. In response, Dr. Cobb indicated

that Petitioner was “unable to see to drive.” With regard to

the probable duration of Petitioner’s incapacity, Dr. Cobb

stated that the duration was “unknown.”

6. Petitioner was referred by Dr. Cobb to Dr. W. Sanderson

Grizzard for laser surgery. The first of several surgeries were

performed in May and June of 1997. During this time, Petitioner

was extremely concerned about the outcome of the surgeries. He

understood from his physicians that there was a chance that his

visual limitations could worsen and that there was a possibility

that he might lose his eyesight altogether. Therefore, his

immediate goal was to obtain medical leave under the Family

Medical Leave Act (“FMLA”) in order to have the surgeries

performed. He also desired light - duty work in order to stay

employed while he scheduled the surg eries. He was hoping that

when his surgeries were complete, he could discuss his future

with PSTA as far as which other jobs he could perform. He

estimated that he would be able to discuss future work with PSTA

in August or September of 1997. This infor mation, however, was

not conveyed to PSTA.

7. Petitioner’s inquiries to his immediate supervisor

regarding light - duty were referred to Gail Bilbrey, Benefits

Specialist. Bilbrey administers a program instituted by

Respondent, although not in writing, tha t assigns eligible

employees on workers’ compensation leave to available temporary,

part - time light - duty positions that accommodate their physical

restrictions. In administering the program, Bilbrey reviews the

medical documentation of an employee on work ers’ compensation

leave and determines if an existing position is vacant within

one of several PSTA departments that the employee may be able to

perform given the employee’s physical limitations. Because the

positions available under this program are exis ting positions

and are part of a bargaining unit of a labor union, light - duty

assignments are not created for individual employees. Light -

duty positions are extremely limited in number and are often not

available for all employees injured on the job.

8. The purpose of PSTA's light - duty program is to save

costs of workers' compensation injuries by utilizing employees

on workers' compensation leave, whom PSTA is required to pay, in

vacant light - duty positions. Temporary light - duty positions,

thus, are give n to employees on workers' compensation by PSTA.

The intent of the program is for the employee to occupy the

position only on a temporary basis; thus, light - duty assignments

are only granted to employees who are expected to return to work

in their regular job.

9. Since Petitioner was not on workers' compensation leave

and was not expected to return to his bus - driving job,

Petitioner was not eligible for a light - duty assignment.

10. Even if Petitioner had qualified for light - duty, no

light - duty positions were available at PSTA at the time of his

request. Petitioner was informed of the lack of light - duty work

during several conversations with Bilbrey. In response to his

request, Bilbrey also prepared a memorandum dated April 23,

1997, indicating that no l ight - duty was available at that time.

11. The main light - duty positions available at PSTA

involved money - counting and ride surveying. Petitioner’s vision

impairment prevented him from performing the functions of ride

surveying, which includes observ ing passengers boarding and

exiting PSTA buses at each bus stop and recording the results in

writing. The money - counting light - duty position required the

use of money - counting machines, checking bills, handling coins,

and delivering/picking up tickets and money at Respondent’s

remote terminals.

12. Despite his vision limitations, Petitioner claims to

have been aware of several full - time positions that he alleges

he would have been able to perform in June 1997. First,

Petitioner claims to have been able t o perform the position of

fueler/cleaner, which requires a valid Florida Class “B”

Commercial Driver’s license, with passenger endorsement and air

brakes, the ability to clean buses, and the ability to check

coolant and oil levels. However, Petitioner ha d relinquished

his commercial driver’s license in 1997, his physicians had

stated he could not drive a bus, and, as observed by Bilbrey,

his vision was insufficient to perform the job duty of checking

coolant and oil levels.

13. Two other positions became available at PSTA during

the time in question which Petitioner now contends he would have

been able to perform with adaptive equipment. First, the

position of Customer Service Representative was posted by PSTA

in early March 1997. This position involves selling tickets and

passes, giving route and scheduling information to the public,

and delivering supplies to three of Respondent’s remote

locations. In 1997, maps and route schedules were not

computerized and involved reading very small print. In

addit ion, if Petitioner had qualified for and had been awarded

the position, as the least senior Customer Service

Representative, Petitioner likely would have been assigned as a

“floater,” requiring Petitioner to be able to “float” between

different remote term inals at different times to relieve other

Customer Service Representatives. The shift of Customer Service

Representatives begins at 6:00 a.m., prior to regular bus

service. Given the fact that Petitioner was unable to read the

fine print of the maps and schedules in a timely fashion and

because transportation to deliver supplies, to float between

terminals, and to report to work at 6:00 a.m. prior to bus

service would have been a significant issue, Petitioner would

not have been able to perform the job of Customer Service

Representative.

14. Also, in June 1997, the position of Clerk Risk

Management became available. Petitioner had limited computer

and clerical experience. Therefore, because this position

requires extensive typing, computer work, and pr oofreading,

Petitioner did not qualify for the position due to his limited

vision and lack of computer experience.

15. Petitioner was unable to perform these functions.

After several surgeries, Petitioner's vision has stabilized but

he is still legally b lind by Social Security disability

standards.

16. Regardless of whether Petitioner would have been

qualified, Petitioner did not apply for a request consideration

for any of these positions or provide any documentation to

Respondent indicating his ability to perform these jobs.

17. Instead, in May 1997, Petitioner applied for long - term

disability benefits. He completed the application in Bilbrey’s

office with the aid of a magnifying glass. Attached to the

application for long - term disability benefits wa s an Attending

Physician’s Statement dated April 30, 1997, which was also

provided to Respondent by Petitioner. On the form, Dr. Cobb

indicated that the approximate date Petitioner would be able to

resume any work was “indefinite” and that his prognosis f or work

was secondary to vision. Petitioner was granted and accepted

long - term disability benefits. Pursuant to the long - term

disability policy, Petitioner was found totally disabled and

could not work.

18. In addition, in April 1997, Petitioner request ed an

extended leave of absence beyond his FMLA leave that was due to

expire in June 1997. However, when applying for the extended

leave of absence, Petitioner was unable to specify a time frame

in which he would be able to return to work. In fact, in a

letter dated May 28, 1997, provided to Bilbrey on June 9, 1997,

in support of Petitioner’s request for extended leave,

Dr. Grizzard indicated that he “would expect [Petitioner] to not

be able to work for at least 3 months.” Because Petitioner’s

physician s were not able to provide a specific date when he

could return to work, Petitioner’s request for extended leave

was denied in accordance with Respondent’s policy. Thereafter,

since Petitioner had exhausted all FMLA leave, was unable to

perform the essent ial functions of his job as a bus operator,

even with reasonable accommodations, and was unable to provide a

definite date of return, Petitioner was terminated from his

position as a bus operator on June 10, 1997, in accordance with

PSTA policy.

19. After his termination, Petitioner filed a grievance

wherein he again requested an extended leave of absence until

September 9, 1997, so that he could concentrate on his surgeries

and to determine if he would be able to return to work at PSTA.

A grievance heari ng before Executive Director Roger Sweeney was

held on June 30, 1997. At that hearing, Petitioner did not

request light - duty assignment or reassignment to a new permanent

position. Petitioner’s grievance was denied since Petitioner

was unable to perform the duties for which he was hired, had

been absent from employment with PSTA in excess of three months,

had exhausted all FMLA leave, and was unable to provide a

definite date of return.

20. Following the grievance hearing, Petitioner was

referred by the Division of Blind Services to Abilities of

Florida for vocational rehabilitation training in January 1998.

An assessment of his abilities indicated that Petitioner had

limited keyboarding, computer, and clerical experience and was

unable to score high eno ugh on the 10 - key calculator test to

qualify for clerical training. Approximately three years after

his termination, Petitioner also requested an evaluation to

determine whether he could count money. In an informal test,

Petitioner counted $55 in petty c ash. However, no vocational

report was ever provided to PSTA by Petitioner.

21. The evidence fails to prove that Respondent’s

employment decisions toward Petitioner were based upon or

influenced by his disability.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and Petitioner claims under

Chapter 70, Pinellas County Code, pursuant to Sections 120.569

and 120.57(1), Florida Statutes.

23. However, the Division does not have jurisdiction over

Petitioner's cl aims under the ADA and they previously have been

dismissed; although to the extent the provisions of the ADA are

the same as Chapter 70, cases arising under the federal ADA may

be instructive. James v. Alachua County Department of Criminal

Justice Service , 2001 WL 1107836 (Fla. Div. Admin. Hrg.

Sept. 18, 2001).

24. The Pinellas County Code, Chapter 70 provides, in

pertinent part, as follows:

Sec. 70 - 52. Purposes and intent.

(a) The general purposes of this division

are to:

(1) Provide for e xecution within the

county of the policies embodied in the

Federal Civil Rights Act of 1964, as

amended.

(2) Secure for all individuals within the

county the freedom from discrimination

because of race, color, religion, national

origin, sex, age, marit al status, or

disability in connection with employment,

and thereby to promote the interests, rights

and privileges of individuals within the

county.

25. Sec. 70 - 53. Unlawful practices.

(a) Unlawfully discrimination in

employment practices.

(1) Employers. It is a discriminatory

practice for an employer to:

a. Fail or refuse to hire, discharge, or

otherwise discriminate against an individual

with respect to compensation or the terms,

conditions, or privileges of employment

because of ra ce, color, religion, national

origin, sex, age, marital status, or

disability; or

b. Limit, segregate, or classify an

employee in a way which would deprive or

tend to deprive an individual of employment

opportunities or otherwise adversely affect

the status of an employee because of race,

color, religion, national origin, sex, age,

marital status, or disability.

c. The above described prohibited

discrimination on the basis of sex includes

sexual harassment, including same - sex sexual

harassment, a nd pregnancy discrimination.

26. Sec. 70 - 51. Definitions.

Disability means:

(1) A physical or mental impairment which

substantially limits one or more of such

person’s major life activities;

(2) A record of such an impairment; or

(3) Being regarded as having such an

impairment.

An individual having a disability is

“qualified” with respect to employment if he

can perform the essential functions of the

job in question with reasonable

accommodations.

27. In this administrative action, Petit ioner has the

initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817 (1973). If Petitioner sustains his initial

burden, Respondent then must establish some legitimate, non -

discr iminatory reason for the action taken in order to rebut the

inference of discrimination, a reason which is clear, reasonably

specific, and worthy of credence. Texas Department of Community

Affairs, v. Burdine , 450 U.S. 248, 101 S. Ct. 1089 (1981);

Cheesem an v. Lincoln Construction Company , 1989 WL 644456 (Fla.

Div. Admin. Hrgs. Aug. 22, 1989). The employer has the burden

of production, not one of persuasion, which remains with the

employee at all times. It is not required to persuade the trier

of fact th at 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 was a pretext for intentional

discrimination. Id. 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 is not worthy of

belief. If such proof is adequ ately presented, the employee

satisfies his or her ultimate burden of demonstrating by a

preponderance of evidence that he or she has been the victim of

intentional discrimination. Id. at 1185 - 86.

28. Like the Americans with Disabilities Act, in order to

establish a prima facie case of employment discrimination based

on disability under Chapter 70, Petitioner must demonstrate

that: (1) he is disabled; (2) he is an otherwise qualified

individual, with or without accommodation; (3) he was subject to

unlawf ul discrimination because of his disability; and (4) his

employer knew or had reason to know of his disability. See

Hilburn v. Murata Electronics North America, Inc. , 181 F.3d 1220

(11th Cir. 1999). In this case, there is no dispute that

Petitioner was d isabled and that Respondent knew of Petitioner’s

disability. Thus, the dispositive issues in this case are

whether Petitioner, despite his disability, was an otherwise

qualified individual, with or without accommodation and if so,

whether Petitioner was s ubject to unlawful discrimination

because of his disability when Respondent failed to provide

Petitioner with light - duty and an extended leave of absence and

terminated him because of his inability to drive after he had

exhausted all FMLA leave.

29. The burden is on the employee to prove that he is an

“otherwise qualified” individual. Shiring v. Runyon , 90 F.3d

827, 832 (3rd Cir. 1996). Under Section 70 - 51 of the Pinellas

County Code, an individual having a disability is “qualified”

with respect to empl oyment if he can perform the essential

functions of the job in question with reasonable accommodations.

The definition of “qualified individual” under Chapter 70,

therefore, is significantly different from the definition of

that term contained in the ADA. It provides that a “qualified

individual” is “an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires.” 42 U.S.C. Section 12111(8 ). Thus, while the ADA

requires an employer to consider positions other than the

disabled employee’s current job in determining whether an

individual is otherwise qualified, there is no such requirement

under Chapter 70. Therefore, if an employer determi nes under

Chapter 70 that an employee cannot perform the essential

functions of the employee’s job in question with reasonable

accommodation, the employee will not be entitled to the

protections as a “qualified individual” under Chapter 70.

Respondent thu s correctly argues that where an individual is not

otherwise qualified to perform the essential functions of his

current job, the employer is not required under Chapter 70 to

consider whether the employee might be able to perform another

position.

30. In determining which job functions are essential, the

ADA instructs that “consideration shall be given to the

employer’s judgment as to what functions of a job are essential,

and if an employer has prepared a written description before

advertising or intervi ewing applicants for the job, this

description shall be considered evidence of the essential

functions of the job.” 42 U.S.C. Section 12111(8). A job

function may be considered essential if, inter alia , (1) the

reason the position exists is to perform th e function; (2) there

are a limited number of employees available among whom the

performance of the job function can be distributed; or (3) the

function is highly specialized so that the incumbent in the

position is hired for his ability to perform the par ticular

function. 29 C.F.R. Section 1630.2(n)(2); Santos v. Port

Authority of New York and New Jersey , 1995 WL 431336 (S.D.N.Y.

1995). A showing by an ADA plaintiff that he can satisfactorily

perform light - duty functions is insufficient since light - duty,

by its very nature, does not encompass all of the essential

duties of a job. Id.

31. Obviously, the essential function of a bus operator is

to drive a bus. The reason the position of bus operator exists

is to perform the essential functions of dr iving a bus, which

can be performed only by a limited number of employees. Indeed,

the function of driving a bus is particularly important in this

case given the nature of Respondent’s business as a transit

agency.

32. In his testimony at the final he aring, Petitioner

concedes that driving a bus was impossible for him to do. From

the record it is clear that no amount of accommodation on the

part of Respondent would have made this possible. In fact,

Petitioner had relinquished his commercial driver’s license, an

undisputed essential requirement of the job, in 1997. Because

Petitioner was no longer able to drive a bus, he was not a

qualified individual entitled to protection under the plain

terms of Section 70 - 51.

33. Even though Petitioner was not a “qualified

individual” under Chapter 70 and no further analysis is

required, it is clear from the record that in 1997, Petitioner

requested that Respondent reassign him to light - duty or grant

him an extended leave of absence following the expiration of h is

FMLA leave as a reasonable accommodation. By his own testimony,

Petitioner sought light - duty and extended leave in order to

allow him time for his eye surgeries and to evaluate his ability

to return to work. Unlike the ADA, however, Chapter 70 does no t

define “reasonable accommodation.” To the extent the ADA is

applicable, “reasonable accommodation” under the federal act is

one that would “enable the employer’s employees with

disabilities to enjoy equal benefits and privileges of

employment as are enj oyed by its other similarly situated

employees without disabilities.” 29 C.F.R. 1630.2(o). A

qualified individual with a disability is not entitled to the

accommodation of his choice, however, but only a reasonable

accommodation. Stewart v. Happy Herman ’s Cheshire Bridge, Inc. ,

117 F.3d 1278, 1286 (11th Cir. 1997). For example, it is clear

under the ADA that reasonable accommodation does not require an

employer to create a light - duty position or a new permanent

position, nor is the employer required to convert a temporary

job into a permanent one. Howell v. Michelin Tire Corporation ,

860 F.Supp. 1488, 1492 (M.D. Ala. 1994).

34. An employer may be required to provide light - duty only

where the employer has an existing vacant light - duty position

availa ble. Id. Even in these instances, if the light - duty job

is a temporary position, reassignment to that job need only be

for the temporary period of the job. Id. An employer is also

not required to provide reasonable accommodation by reason of a

transfer to a new position, such as light - duty where,

independent of concerns about disability, the employer has a

business policy against the pertinent kind of transfer or where

the transfer would violate a collective bargaining agreement.

See Duckett v. Dunlop Tire Corporation , 120 F.3d 1222, 1225

(11th Cir. 1997).

35. In this case, PSTA has a policy of placing only

eligible employees on workers’ compensation leave in available,

existing light - duty positions which were part - time. That

Respondent, as a matter of business policy, chose to create a

light - duty program for employees on workers’ compensation leave

does not establish that it was required to allow Petitioner, on

leave for a medical condition unrelated to his employment, to

receive benefits under that program as a reasonable

accommodation. Duckett , 120 F.3d at 1225. That fact

notwithstanding, the testimony of Respondent’s witnesses is

uncontroverted that no light - duty positions were available at

the time of Petitioner’s request. Where no vacant light - duty

positions were available, Respondent was not required to create

a new one for Petitioner. Id.

36. Moreover, it is clear from the record that Petitioner

did not qualify for the main light - duty of money counting and

ride surveying because of his v ision impairment. Petitioner, as

the employee, must show that he possessed the requisite skill,

experience, education, and other job - related requirements of the

employment position, with or without reasonable accommodation.

Id.

37. Respondent was simil arly not required to grant

Petitioner’s second request for accommodation in the form of an

extended leave of absence. In April 1997, Petitioner requested

leave of at least two months after his FMLA leave, which was due

to expire in June 1997. In response to PSTA’s request for

medical documentation to support the leave request, PSTA

received correspondence from Dr. Grizzard on May 28, 1997,

indicating that he did not expect Petitioner to be able to

return to work for at least three months. Other medical

d ocumentation provided to Respondent could not predict

Petitioner’s future vision and described his ability to return

to work as “indefinite.” In his testimony at the final hearing,

Petitioner acknowledges that he likely would not have been able

to conside r returning to any type of work prior to August or

September of 1997.

38. An employer does not violate the ADA by refusing to

grant an employee an extended period of time in which to cure

his disabilities where the employee sets no temporal limit on

the advocated grace period, urging only that he deserves

sufficient time to ameliorate his conditions. Duckett , 120 F.3d

at 1226. This is because the ADA, like Chapter 70, and its

regulations contain no reference to a person’s future ability to

perform the e ssential functions of his position. Id. To the

contrary, the law is formulated entirely in the present tense,

framing the precise issue as to whether an individual can, not

will be able to perform the job with reasonable accommodation.

Id. Accordingly, Petitioner’s request that PSTA accommodate his

disability by providing him with two or more months leave when

he could not show if or when he would likely be then able to

return to work was not “reasonable” within the meaning of

Chapter 70 or the ADA; the course of Petitioner’s health was too

uncertain. See Id.

39. It is clear from the record that at the time of his

termination, Petitioner had only requested Respondent to provide

light - duty and an extended leave of absence pending the outcome

of his sur geries. After the fact, Petitioner now contends that

Respondent was required to offer and reassign him to one of

several vacant positions that became available as reasonable

accommodation even though Petitioner never asked for or applied

for these two pos itions. Petitioner did not become interested

in these positions until long after his termination. However,

as stated above, Chapter 70, which does not define “reasonable

accommodation” does not require reassignment to another

position. See Shiring v. Ru nyon , 90 F.3d at 831 (prior to 1992

when Rehabilitation Act did not require reassignment prior to

amendment to include such option).

40. Although under the ADA, to the extent it is

applicable, reasonable accommodation may include job

restructuring, part - time or modified work schedules, or

reassignment to a vacant position, the initial duty to inform

the employer of the necessary specific accommodations falls on

the employee. 42 U.S.C. Section 1211.2(8); Beck v. University

of Wisconsin Board of Regents , 75 F.3d 1130, 1136 (7th Cir.

1996). Blanket medical restrictions provided by the employee

will not be sufficient to inform an employer of the nature of

the accommodations sought. Steffe v. Stepan Company , 144 F.3d

1070, 1072 (7th Cir. 1998). The employe e also is required to

update or further clarify the kinds of work he or she can do.

Id. at 1073. Where an employer does not obstruct the process,

but instead makes reasonable efforts to communicate with the

employee, liability for failing to make reasona ble accommodation

will not follow. Beck 75 F.3d at 1137.

41. In the instant case, Petitioner provided Respondent

with the blanket medical restriction that his vision was

insufficient to drive a bus. Petitioner never further clarified

his abilities, req uested or applied for any other position,

provided any documentation regarding his other abilities or

skills, or indicated any ability to perform any other type of

job. PSTA posts notice of its job opening at a number of

locations including close to Bilbr ey’s office, where Petitioner

visited during his FMLA leave. He never asked Bilbrey, or

anyone else at PSTA, about open positions at PSTA. None of the

vocational rehabilitation information provided by Petitioner

during the final hearing was provided to R espondent prior to his

termination. In any case, these evaluations were of limited

value given the fact that they were conducted well after his

termination date. Instead, the documentation provided by

Petitioner only indicated that he was unable to perfo rm any work

for at least three months. Because Petitioner failed to clarify

the extent of his abilities and in fact failed to show that he

could work at all, Respondent cannot be held liable for failing

to reassign Petitioner.

42. Even though Respondent was not required to reassign

Petitioner under Chapter 70 and was nevertheless not asked to do

so by Petitioner, it is obvious from the record that Petitioner

was unable to perform the essential functions of the positions

for which he now claims to have be en qualified. Petitioner was

unable to perform the essential functions of Customer Service

Representative given the fact that Petitioner was unable to read

the fine print of the maps and schedules in a timely fashion and

to drive to deliver supplies or fl oat between terminals.

Because of his limited vision and lack of computer experience,

Petitioner also could not perform the position of Clerk Risk

Management since this position required extensive typing,

computer work, and proofreading. Finally, Petitio ner did not

qualify as a fueler/cleaner because the position requires a

commercial driver’s license. An employer is not required to

reassign a disabled person to a vacant position unless the

disabled person is qualified for the position. Howell v.

Michel in Tire Corporation , 860 F. Supp. 1488, 1492 (M.D. Ala.

1994).

43. Respondent has rebutted any inference of

discrimination which might be drawn in this case with

legitimate, non - discriminatory reasons for its actions regarding

Petitioner, and has present ed no evidence that he was treated

any differently than other disabled employees.

RECOMMENDATION

Based on the foregoing, It is

RECOMMENDED that Petitioner’s Charge of Discrimination be

dismissed with prejudice.

DONE AND ENTERED this 9th day of April, 200 2, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 2002.

COPIES FURNISHED :

Craig L. Berman, Esquire

Berman Law Firm, P. A.

360 Central Avenue

Suite 1260

St. Pe tersburg, Florida 33701

William C. Falkner, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

Stephanie N. Rugg

City of St. Petersburg

175 Fifth Street, North

St. Petersburg, Florida 33701

Alan S. Zimmet, Esquire

Z immet, Unice, Salzman & Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Florida 33759

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.