03-004708 Lawrence A. Lopenski vs. Department Of Corrections Status: Closed Recommended Order on Thursday, April 22, 2004.

Summary: Respondent is providing reasonable accomodation for Petitioner`s disability. Recommend that the Petition for Relief be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE A. LOPENSKI, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4708

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings conducted a final hearing in this case

on March 30, 2004, by video teleconference at sites in Daytona

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Lawrence A. Lopenski , pro se

2482 Barbarossa Avenue

Deltona, Florida 32524

For Respondent: Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUES

The issue is whether Respondent has engaged in an unlawful

employment practice against Petitioner in violation of Section

760.10, Florida Statutes, by discriminating against Petitioner

based on his disability.

PRELIMINARY STATEMENT

On March 11, 2002, Petitioner Lawrence A. Lopenski

(Petitioner) filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent Department of Corrections (Respondent) discriminated

against Petitioner by failing to provide him reasonable

accommodation for his disability, the effects of Non - Hodgkin’s

Lymphoma and treatment for that disability.

On September 24, 2003, FCHR issued a Notice of

Determination finding no reasonable cause to believe that a

discriminatory employment practice had occurred.

On October 28, 2003, Petitioner filed a Petition For Relief

with FCHR.

On December 15, 2003, FCHR referred the case to the

Division of Administrative Hearings.

During the final hearing, Petitioner testified on his own

behalf and presented two exhibits. Respondent presented the

testimony of two witnesses and 22 exhibits, which were accepted

into evidence.

No transcript of the proceeding was provided. Both

parties, however, filed Proposed Recommended Orders. Those

post - hearing submissions have been reviewed and addressed to the

extent possible in this Recommended Order.

FINDINGS OF FACT

1. Petitioner has been emplo yed as a correctional officer

by Respondent at all times pertinent to this proceeding at

Tomoka Correctional Institution (TCI) in Volusia County,

Florida. The prison houses adult male inmates. Staff at TCI

has the primary mission of providing for the pub lic safety

through the care, custody and control of the inmates housed in

that facility.

2. In early 1998, Petitioner was diagnosed with Non -

Hodgkin's Lymphoma and began treatment for the disease. He was

granted leave as needed for treatment and c ontinued otherwise to

work.

3. Petitioner requested and was eventually granted the

privilege of working a double shift only in those situations

where he could take the next day off. In December of 2000, he

requested that he be assigned to a perime ter post half of the

time, and that he not be assigned to the chow hall or to guard

sick inmates. Since Petitioner did not provide sufficient

medical information to support the requested accommodation, it

was denied.

4. Respondent assigned Petitio ner to be a "roving

perimeter officer" on June 18, 2001. These officers observe the

secure perimeter of the facility to ensure that no unauthorized

entry into or out of the facility takes place. Each officer on

this assignment is issued a shotgun, revolv er and a motor

vehicle. Each officer has a specific part of the perimeter

fence to guard. Petitioner, as a result of medication he takes

for his condition, experienced an urgent need to defecate, and

left his post after calling for a replacement. As a

c onsequence, Petitioner was thereafter assigned duty only where

he would have immediate access to bathroom facilities.

5. Petitioner provided documentation from his health care

provider to Respondent indicating that Petitioner could work any

post in the facility subject to certain qualifications. He

should be given 16 hours' advance notice of the assignment to

permit him to plan his medication schedule if he were assigned

to the perimeter or other station where bathrooms were not

readily available. Additionally, Petitioner was to be relieved

within nine minutes of requesting a needed bathroom break.

Petitioner also needed to have constant access to cold water and

not be subjected to temperatures in excess of 90 degrees for

more than an hour.

6. As a result of his special needs, Petitioner remained

assigned mainly to inside posts. He meets all requirements to

work in the TCI observation towers, which have bathroom

facilities and are climate controlled. He is assigned to such a

tower one day per week.

7. Respondent will not provide Petitioner 16 hours'

notification of a future assignment so as to permit him to

schedule his medication in such a way as to avoid urgent

bathroom usage. Further, Respondent will not provide relief

within nine minutes so that Petitioner can use the restrooms

when necessary.

8. Petitioner is generally assigned by Respondent to

dormitory duty with the exception of tower duty one day per

week. The dormitory is air - conditioned, but such assignment is

s tressful, fatiguing, and could adversely affect Petitioner's

physical condition of lymphoma which is presently in remission.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of t his

case. §§ 120.569 and 120.57(1), Fla. Stat.

10. Florida law prohibits employers from discriminating

against employees on the basis of a handicap. § 760.10(1)(a),

Fla. Stat. The Florida Civil Rights Act of 1992, Section

760.01, et seq ., is mod eled after Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Section 2000, et seq .; therefore, case

law interpreting Title VII is also relevant to cases bought

under the Florida Civil Rights Act. Florida Department of

Community Affairs v. Bryant , 586 S o. 2d 1205, 1209 (Fla. 1st DCA

1991). Additionally, the Florida Civil Rights Acts is construed

in accordance with the Americans with Disability Act (ADA),

42 U.S.C., Section 12101, et seq . Razner v. Wellington Regional

Medical Center, Inc. 837 So. 2d 437 , 440 (Fla. 4th DCA 2002).

11. A petitioner in a discrimination case has the initial

burden of proving a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817,

36 L.Ed.2d 668 (1973).

12. If the petitioner proves a prima facie case, the

burden shifts to the Respondent to proffer a legitimate non -

discriminatory reason for the actions it took. Texas Department

of Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089,

67 L.Ed.2d 207 (1981). T he respondent's burden is one of

production, not persuasion, as it always remains Petitioner's

burden to persuade the fact finder that the proffered reason is

a pretext and that the respondent intentionally discriminated

against the Petitioner. Burdine , 4 50 U.S. at 252 - 256.

13. In the instant case, Petitioner alleges that

Respondent discriminated against him based on his disability of

remitted lymphoma and its subsequent affects on his physical

health by not granting him reasonable accommodations i n his

employment. Petitioner’s testimony, coupled with medical

correspondence presented at hearing, indicates that stress and

fatigue in his current assignment has the potential to adversely

affect his status of remitted cancer. He has not, however,

show n a prima facie case of discrimination.

14. A person is disabled when: (a) he or she has a

physical or mental impairment that substantially limits one or

more major life activities, i.e., an urgent need to defecate or

eliminate waste from his body at exigent moments; (b) he or she

has a record of having an impairment; or (c) he or she is

regarded as having an impairment. 42 U.S.C. Section 12102(2);

29 C.F.R. Section 1630.2(g)(I). Petitioner has demonstrated

(a) he is a disabled person within the meaning of the Florida

Civil Rights Act and the ADA; and (b) he is "qualified" to

perform the job apart from his disability.

15. Non - Hodgkin’s Lymphoma results in lowered stamina and

a lower fatigue threshold. Petitioner’s cancer is, however, in

r emission at the present time. Respondent is presently

assigning him to the observation tower and dormitory duty. Both

assignments take full cognizance of Petitioner’s needs.

Employment stress simply cannot be considered a “disability.”

16. Petiti oner has proven that his disability does not,

with the accommodation presently being made by Respondent,

interfere with his ability to perform the job for which he was

hired. A qualified individual with a disability is one who can

perform the essential fu nctions of the job with or without

reasonable accommodation. 42 U.S.C. Section 12111(8). The term

"essential functions" means the fundamental job duties of the

employment position. 29 C.F.R. Section 1630.2(n)(1). In this

case, the evidence indicates th at Petitioner, with the present

accommodations made by Respondent, is qualified to work as a

correctional officer for Respondent.

17. The ADA imposes a duty on employers to provide

reasonable accommodations for known disabilities unless doing so

wo uld result in undue hardship. Hernandez v. Prudential

Insurance Company , 877 F. Supp. 1160, 1165 (M.D. Fla. 1997).

While Respondent knows Petitioner’s disability, no evidence was

presented that Respondent’s assignments practice is conducive to

the 16 - hou r notice requested by Petitioner. By virtue of the

nature of Respondent’s task of securing the facility and its

inmates, a 16 - hour notice of guard assignment, such as requested

by Petitioner, would not be feasible.

18. Based on the evidence receiv ed, Petitioner has not

been refused a reasonable accommodation for his disability,

which is within Respondent's power to grant.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a fina l order dismissing the Petition for

Relief.

DONE AND ENTERED this 22nd day of April, 2004, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 22nd day of April, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Lawrence A. L openski

2482 Barbarossa Avenue

Deltona, Florida 32524

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right t o 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.