01-004014 Carlos A. Mangual vs. Miami Dade County Consumer Service Status: Closed Recommended Order on Thursday, May 30, 2002.

Summary: When Petitioner failed to establish a disability, an employment change could not be based on such impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS A. MANGUAL , )

)

Petitioner, )

)

vs. ) Case No. 01 - 4014

)

MIAMI DADE COUNTY CO NSUMER )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in

this case by video teleconference on February 22, 2002,

with the parties appearing from Miami, Florida, before

J. D. Parrish, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: A na M. Urrechaga, Esquire

Urrechaga, P. A.

8603 South Dixie Highway

Suite 209

Miami, Florida 33143

For Respondent: Eric A. Rodriguez, Esquire

Robert A. Ginsburg

Miami - Dade County Attorney

111 Northwest First Street

Suite 2810

Miami, Florida 33128 - 1993

STATEMENT OF THE ISSUE

Whether the Respondent failed to make a reasonable

accommodation in order to allow the Petitioner to perform

his job functions and thereby committed an unlawful

employment practice constituting discrimination that is

prohibited by the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On or about April 2, 2001, the Petitioner, Carlos A.

Mangual, executed a Charge of Discrimination and filed it

with the Florida Commission on Human Relations. Such

document alleged that the Respondent, Miami Dade County

Consumer Service, had committed an act of discri mination

within the jurisdiction of that entity. The last act of

discrimination allegedly took place on June 9, 2000, when

the Petitioner was "demoted" from a position of consumer

protection officer to a parks security supervisor.

Petitioner alleged he had been discriminated against

because of a disability.

The claim was concurrently filed with the U.S. Equal

Employment Opportunity Commission. That entity dismissed

the Charge of Discrimination, as it determined the

Petitioner is not a qualified individua l with a

disability. Subsequently, the Petitioner filed a

Petition for Relief with the Florida Commission on Human

Relations. That Petition was then referred to the

Division of Administrative Hearings for formal

proceedings on or about October 18, 2001.

Prior to hearing, the parties filed a Joint Pre -

hearing Stipulation. Such stipulation outlined the

parties' statements of the case and identified issues to

be addressed by the evidence. The Respondent has

disputed that the Petitioner is disabled, denied that the

Petitioner made a reasonable accommodation request, and

contested Petitioner's claim as a matter of law.

At the hearing, the Petitioner testified in his own

behalf and offered Petitioner's Exhibit 1 into evidence.

A late - filed deposition with one exhibit attached has

also been received into evidence and marked for

identification as Petitioner's Exhibit 2.

The Respondent offered testimony from William

Collins, Lee Sauls, and Mario Goderich. The Respondent's

Exhibits 3 and 4 were received in eviden ce.

The transcript of these proceedings was filed with

the Division of Administrative Hearings on March 25,

2002. An O rder granting the parties an extension of time

to file proposed recommended orders was entered on

April 1, 2002. Thereafter, the parties filed proposed

orders that have been considered in the preparation of

this order.

FINDINGS OF FACT

1. Miami - Dade County is a political subdivision of

the State of Florida. The Respondent, Miami Dade County

Consumer Service, is a department of Miami - Dade County.

2. The Petitioner, Carlos A. Mangual, is an

employee of Miami - Dade County, Florida (the County). He

currently is employed as the security manager for the

Port of Miami. The Petitioner has held his current

position since April of 2001.

3. Prior to his current position, the Petitioner

was a Parks and Recreation Security Supervisor for the

County. As a supervisor he was eligible to participate

in seminars and training meetings that were geared toward

making supervisors aware of personnel rul es and

regulations.

4. During his employment with Parks and Recreation,

the Petitioner attended a meeting regarding the Americans

with Disabilities Act (ADA). Mr. Collins is the County's

Employee Relations ADA specialist who was the guest

instructor for the supervisor's certification program.

5. Mr. Collins met the Petitioner at the ADA

meeting and discussed with the Petitioner whether the

Petitioner's weight (and size) would be considered a

disability under the ADA provisions.

6. Subsequently, while employed with the County,

the Petitioner was involved in an automobile accident

that resulted in a knee injury. The Petitioner has

undergone two surgeries to correct the damaged knee.

Because the knee has adversely affected the Petitioner's

gait, he also suffers back pain from the incident.

7. The knee injury, resultant back pain, and

residual physical impairments have caused the Petitioner

to receive a workers' compensation overall impairment

rating of 8 percent. For purposes of this case, the

Responde nt does not challenge such impairment.

8. Subsequent to the accident and knee injury, the

Petitioner applied for a position with the Respondent.

Such position, Consumer Protection Inspector/Officer,

required the Petitioner to attend to office duties for

approximately 1 - 2 hours per day and to "be on the road"

the rest of the time. Consequently, while working as a

Consumer Protection Inspector, the Petition logged

anywhere from 100 to 200 miles per day in a County - owned

vehicle.

9. The Petitioner began hi s probationary status

with the Respondent in January 2000. During the

probationary period, the Petitioner received monthly job

performance evaluations.

10. After approximately 5 months and while still

during his probationary status, the Petitioner was not

retained as a Consumer Protection Inspector. Instead, he

was returned to the Parks Department where he continued

employment with the County until he began his current

position with the Port.

11. The Petitioner considered the return to Parks a

"demotion " based upon his alleged disability.

12. It is undisputed the Petitioner requested a

larger vehicle during his tenure with the Respondent.

The Petitioner maintained the mileage logged in small

vehicles was damaging to his knee and uncomfortable. The

Petitioner claims he was entitled to an accommodation

under the ADA because of his alleged disability.

13. During his time with the Respondent, the

Petitioner did not make a formal request for an

accommodation.

14. In fact, the credible evidence supports a

finding that the Petitioner obtained the form but did not

file it with supporting medical documentation as advised

by the County's ADA specialist.

15. The Petitioner maintains that the small vehicle

assigned for his use required him to frequently stop and

stretch. Such stops were necessary because the interior

of the vehicle did not allow for an extension of his leg.

There is no evidence that the employer refused to allow

the Petitioner to make such stops or that the Petitioner

was adversely evaluated b ecause of the stops.

16. During the Petitioner's probationary period,

the Respondent did not have a larger vehicle readily

available to assign to the Petitioner. Vehicles that

might have become available would have been assigned

based upon seniority with the Respondent. The Petitioner

went back to Parks prior to such vehicles becoming

permanently available to the Respondent.

17. The Petitioner's impairment rating has not

affected his abilities to walk every day, to drive to and

from his place of employm ent, to shop, to engage in

leisure activities, or to go to a gym once a month for

workouts.

18. There is no evidence of any life activity that

Petitioner cannot perform as a result of his knee

impairment.

19. The Petitioner was fully able to perform the

functions of his job.

20. The Petitioner performed his job with the

Respondent even when using a small vehicle.

21. The Respondent never refused a request for an

accommodation from the Petitioner.

22. The Petitioner's informal inquiry regarding how

to seek an accommodation was never formally filed.

23. The Petitioner's size as well as any knee

impairment contributed to the uncomfortable nature of the

small vehicle used by the Respondent. This was

especially true when the Petitioner was required to share

the vehicle with another employee.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter

of these proceedings.

25. Section 760.10, Florida Statutes, provides, in

pertinent part:

(1) It is an unlawful employment

practice for an employer:

(a) To discharge or to fail or refuse

to hire any individual, or otherwise

to discriminate against any individual

with respect to compensation, terms,

conditions, or privileges of

employment, because of such

individual's race, color, religion,

sex, national origin, age, handicap,

or marital status.

26. In this case the Petitioner bears the burden of

proof to establish he has a "handicap" as defined by law

and that such condition was the basis of t he Respondent's

action. He has failed to meet that burden.

27. The Petitioner's impairment rating for workers'

compensation purposes does not equate to a "handicap" as

that term is used by the statute. The impairment did not

constitute a "disability" (or handicap) as it did not

substantially limit one or more major life activities.

By his admission, the Petitioner was able to do many life

activities. Moreover, it is undisputed that the

Petitioner was able to perform the physical requirements

of the job . It is also undisputed that the Respondent

did not discipline or adversely evaluate the Petitioner

based upon the breaks he took to make his leg more

comfortable.

28. Had the Petitioner formally sought an

accommodation for his knee condition, there is nothing in

this record to suggest the Respondent would not have

allowed the Petitioner the ability to continue to take

breaks for stretching purposes. In fact, however, the

Petitioner never formally sought an accommodation. As

such, the Respondent was nev er formally on notice of an

alleged disability such that an accommodation should have

been made.

29. Finally, the Petitioner never went past a

probationary status with the Respondent. The Petitioner

went from one job site with the County to another job

without any significant interruption of employment. The

Petitioner has not established that such transfer was the

result of an unlawful discrimination based upon a

disability, as the Petitioner is not disabled. As a

matter of law, if the Petitioner is n ot disabled, there

can be no discrimination based upon that criterion.

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 Petitioner's complaint.

DONE AND ENTERED this 30th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 30th day of May, 2002.

COPIE S 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

Carlos A. Mangual

1290 Northeast 135th Street

North Miami, Florida 33161

Consumer Services Miami Dade County

140 West Flagler Street, Suite 901

Miami, Florida 33128

Eric A. Rodriquez, Esquire

111 Northwest 1st Street, Suite 2810

Mia mi, Florida 33128 - 1993

Ana M. Urrechaga, Esquire

Urrechaga, P. A.

8603 South Dixie Highway, Suite 209

Miami, Florida 33143

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.