04-002033 Bergita Evans vs. County Of Alachua Status: Closed Recommended Order on Tuesday, June 7, 2005.

Summary: Petitioner with a morbid obesity of 400 lbs., hypertension, and osteo arthritis was terminated because she could not do her job with or without accommodation, which was not due to a handicap. Recommend dismissal of petition of charge of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERGITA EVANS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2033

)

COUNTY OF ALACHUA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fa ct hearing was conducted in

this case on January 11 - 12, 2005, in Gainesville, Florida,

before Ella Jane P. Davis, a duly - assigned Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bill Salmon, Esquire

410 Southeast 4th Avenue, Suite A

Gainesville, Florida 32601

For Respondent: Linda G. Bond, Esquire

Allen, Norton, and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent Employ er is guilty of an unlawful

employment practice, to wit: termination of Petitioner on the

basis of handicap discrimination without reasonable

accommodation.

PRELIMINARY STATEMENT

On or about September 4, 2003, Petitioner filed a Charge of

Discrimination, on the basis of handicap, with the Florida

Commission on Human Relations. On May 4, 2004, the Commission

entered its Determination: No Cause. Petitioner timely filed a

Petition for Relief. On or about June 9, 2004, this case was

referred to the Divisi on of Administrative Hearings.

This case was initially consolidated with Washington v.

Alachua County Sheriff's Office , DOAH Case No. 04 - 2022. That

case was bifurcated - out on the date of hearing. It subsequently

settled , and that file of the Division wa s closed.

At the disputed - fact hearing herein, Petitioner Evans

testified on her own behalf. Her Exhibits P - 1 through P - 9 were

admitted in evidence. Petitioner's Exhibit P - 7 was the

deposition of Lt. Mike Donovan. Petitioner's Exhibit P - 8 was

Sheriff S tephen Oelrich's deposition. Respondent presented the

testimony of Sheriff Stephen Oelrich, Robert Chapman,

James Lybarger , and Sherry Larson. Respondent's Exhibits R - 1

through R - 23 were admitted in evidence. Certain items were

officially recognized.

A Transcript was filed on January 24, 2005. Petitioner

filed a Proposed Recommended Order on February 23, 2005, and

Respondent filed its Proposed Recommended Order on February 24,

2005. Both proposals have been considered in preparation of

this Recommende d Order.

FINDINGS OF FACT

1. Respondent has been the elected Sheriff of Alachua

County, Florida , for 12 years. As such, he was, and is, a

constitutional officer of the State of Florida and the chief law

enforcement officer for Alachua County. Since Ja nuary 1998, he

has administered the Alachua County Jail. In his capacity as

administrator of the jail he qualifies, strictly in his official

capacity, as an "employer," pursuant to Chapter 760, Florida

Statutes. Respondent Employer also may be referred t o as "the

Alachua County Sheriff's Office " (ACSO).

2. Petitioner is an African - American female. At all times

material, she was an employee of Respondent E mployer, and "an

aggrieved person," pursuant to Chapter 760, Florida Statutes.

3. Respondent bega n administration of the jail in

January 1998. Prior to that time, the Alachua County Board of

County Commissioners operated the jail. Respondent assumed

administration of the jail through a government al interlocal

agreement, subject to existing collectiv e bargaining agreements

and various other parameters encouraging continued employment of

existing jail personnel.

4. In January 1998, all current jail employees were

required to complete new applications, subject to review to

ensure compliance with the A CSO's employment standards .

5. On her 1998 job application form, Petitioner answered

questions concerning her physical limitations as follows:

* * *

6. Are you able to participate with or

without accommodation in defensive tactics,

firearms, or physica l training, operation of

a motor vehicle, or otherwise perform the

duties set forth in the job description or

task analysis related to the position for

which you applied? - NO.

7. This position may require a physical

ability test. If such a test or exa mination

is required, would you be able to take this

test or examination with or without

accommodation? - NO.

8. Explain what accommodation(s) you would

need to perform these tasks or take the test

or examination. - LEFT BLANK.

* * *

6. The majorit y of former Alachua County Jail employees

were hired by ACSO. Some employees who did not meet ACSO's

requirements were not hired/transferred to the new employer .

These were mostly employees with criminal records.

7. It was Respondent's intent to t ry to retain jail

employees, even if they were temporarily unable to perform their

essential job functions, for up to 12 months.

8. Petitioner, who had served as a detention officer at

the jail from 1981 to 1998, was one of the employees who

successf ully made the transition and was hired by Respondent in

January 1998.

9. At all times material, Petitioner was a Certified

Correctional Officer. Her certification only indicates that she

had met minimum training requirements and the mandatory

continuing professional training requirements, pursuant to

Florida law.

10. At the time of her hire/transfer in January 1998 ,

Petitioner weighed 350 pounds and suffered from osteoarthritis

and hypertension. Obesity, osteoarthritis, and hypertension

have plagued P etitioner since before her hire/transfer.

11. Also, at least since June 29, 1998, Petitioner has

been unable to walk long distances. On that date, a podiatrist

diagnosed her with "bone spurs" in both feet. She submitted a

Health and Work Status Report to the Employer stating Petitioner

should only sit 50 percent, stand 50 percent, walk 50 percent,

and climb stairs 10 percent. These figures add up to more than

100 percent, and the undersigned interprets the report, in the

light of Petitioner's testimony , to mean that the physician was

restricting her to no more than the respective percentages of

each listed activity.

12. The June 29, 1998, report went on to say that

Petitioner should not use her feet for extended periods, perform

physical force r estraints/combat, or stressful work.

13. As a result, ACSO placed Petitioner on temporary

restricted duty (TRD). Petitioner's testimony suggested that,

at some point, she recovered from the foregoing " temporary"

restrictions, and a subsequent Nove mber 26, 2002, memorandum

from the Employer (see Finding of Fact 45) suggests that

some time prior to March 6, 2002, Petitioner was returned to

regular duty , minus the June 29, 1998, physical restrictions .

(See Findings of Fact 35 - 37). However , it is not clear for what

period of time between June 29, 1998, and March 6, 2002,

Petitioner remained on TRD .

1 4 . There was no requirement of a Physical Agility Test

(PAT) during Petitioner's 18 years of service at the jail prior

to ACSO taking over jail managemen t, and Petitioner was not

required to take and pass a PAT in order to be hired/transferred

to the ACSO regime in 1998 .

15 . The jail employed more than 300 detention officers.

D etention officer s w ere subject to being assigned to any area

within the jail.

1 6 . The written Job Description for Detention Officer has,

at all times material, required " . . . maintaining physical

custody and control of inmates . . . " and " . . . receiving and

processing inmates, enforcing disciplinary procedures for the

contr ol of inmate behavior. "

17. Nowhere does Petitioner's written job description use

the word, "running , " but it specifies the following "physical

requirements," with or without, a PAT in place:

E. PHYSICAL REQUIREMENTS

Sit, stand or walk for moderate peri ods.

Have good close, distant, color, peripheral,

depth and adjusted vision.

Hear at normal range or with accommodation.

Speak, read, write, and understand English

fluently.

Lift/carry 100 pounds.

Climb, balance and reach with arms.

Bend, stoop, kneel, c rouch and crawl.

Taste and smell.

Manual dexterity.

Drive a vehicle. (Emphasis supplied)

18. T he primary duties for all jail detention officers

were the care, custody, and control of jail inmates and

operation of the facility. These duties might, on occasion,

include running or walking briskly to come to the aid of fellow

officers who were "down" or to respond to inmate fights.

Detention officers were also responsible for the security of the

entire 300,000 square feet of jail space and the 10 - acre parcel

of land surrounding it.

19. A jail detention officer's regular duties also

included inspecting inmate housing areas and looking under

bunks , some of which were only 16 inches off the floor, for

contraband, including drugs and weapons. Detention officers had

to go up and down stairs to make these inspections .

20. During Petitioner's employment with Respondent,

detention officers on TRD were often placed in the personnel

office, lobby of the jail , or in central control. The lobby now

only utiliz es civilian personnel. ( See Finding of Fact 50 . )

21. The Sheriff has a law enforcement background and

mindset. When he took over the jail, he imposed additional

employment standards on jail detention officers above and beyond

the minimum standard s established by the State of Florida. As

part of his initiative to professionalize the jail, and in an

effort to obtain national accreditation for the jail from the

American Correctional Association, the Sheriff established

minimum physical requirements for all detention officers.

2 2 . Over time, ACSO's training staff created a job - related

physical review and designed the PAT.

2 3 . The PAT evolved over a period from approximately

November 1999 to March 2000. It ultimately consisted of a timed

course of nine tasks.

2 4 . The timed PAT began with Task 1: a 455 - foot ( reduced

by July 1, 2003, to 300 - foot) sprint, to the first obstacle.

The " first obstacle " was the step obstacle (stepping over 17

seven - inch rope steps in sequence), then continuing on 50 fee t

to the next task. It is clear from her testimony that

Petitioner incorrectly saw this first part (T asks 1 and 2) as

the only part of the PAT which required running.

25 . However, Task 3 of the PAT was the "Serpentine," which

involved snaking around a s eries of cones without knocking them

down. Then , the detention officer would have to "sprint

approximately 85 - feet to the next obstacle." Task 4 was a low

crawl, followed by a sprint of approximately 155 feet to the

weapon fire area and the next obstacle . Task 5 was rapid and

accurate weapon fire testing, followed by a sprint approximately

40 - feet to the next obstacle. Task 6 for detention officers

involved climbing a set of stairs, followed by a sprint of

approximately 60 feet to the next obstacle. Ta sk 7 was another

serpentine, followed by a sprint of approximately 160 feet to

the next obstacle. Task 8 was a test involving dragging a 150 -

pound dummy and a 123 - foot sprint to Task 9, which involved

handcuffing.

26. It is clear that by "sprint" the PAT intended quick,

short runs at high speeds and that the PAT required many

sprints .

27. It is not clear whether the PAT intended that a

stopwatch be running non - stop through the nine tasks, but it is

clear that all or part of the PAT was timed and t hat a specific

overall time had to be met by each detention officer in order to

pass the PAT.

28. Petitioner knew when she was hired/transferred in

January 1998 that Respondent Employer had, or soon would have,

additional and different employment standa rds than she had

experienced for the last 18 years at the jail and that those new

standards might constitute a mandatory threshold for her

continued employment.

2 9 . As of November 2000, all detention officers , including

Petitioner, were advised that they would be required to

participate in the PAT and that they were being given an 18 -

month phase - in period before the test became a mandatory job

requirement for detention officers . Petitioner was advised that

she would be required to take /pass the PAT b y July 1, 2003.

30 . Among other purposes, the PAT was designed to mirror

some of Petitioner's daily job activities or job description

requirements, such as going up and down stairs , running , and

searching under bunks. Parts of the PAT addressed the read iness

necessity of confronting and controlling inmates. It also

included the less - likely emergency activities of crawling and

shooting.

31. At least by July 1, 2003, (and possibly earlier),

Petitioner's job description was amended to reflect that the PA T

was part of the essential functions of her job:

IV. QUALIFICATIONS:

* * *

B. Experience and Training:

* * *

Must meet or exceed all applicable

physical agility standards required by

ACSO.

3 2 . As part of the continued departmental up grading and

phasing - in of PAT , detention officers, including Petitioner,

also were required to participate in 40 hours of in - service

training, which included training to successfully pass the PAT.

3 3 . ACSO provided University of Florida fitness and

nutri tion interns and an onsite exercise room to assist jail

employees in reaching physical fitness levels sufficient to

timely pass the PAT.

34. Petitioner did not avail herself of these PAT training

opportunities , due, in part, to health reasons .

3 5 . On March 6, 2002, Petitioner provided to Respondent a

letter from her general practitioner, Dr. Thompson, stating:

[Petitioner] suffers from morbid obesity and

has severe osteoarthritis of both knees and

also suffers from hypertension. These

ongoing medical problems preclude her from

being able to participate in the physical

agility test that is a requirement of her

position as a correctional officer. . . .

3 6 . Petitioner could not physically train for , or perform ,

the PAT as of March 6, 2002. From that date on, s he relied on

Dr. Thompson's letter , so that her superiors would not require

her to take /train for the PAT.

3 7 . Petitioner submitted no later reports to change

Dr. Thompson's March 6, 2002, opinion, but claimed that the

Employer had not pl ace d her on TRD as a result of it.

38 . In April of 2002, Petitioner's knee was injured in a

motor vehicle accident.

39 . Petitioner testified that from the April 2002 accident

until she was terminated in August 2003, she was unable to stand

for long per iods of time; run; cook regular meals for her

family; clean her house without assistance; or do any gardening

or yard work. She also related that knee pain limited or ended

marital intimacy. To some degree, at least, these limitations

continued after her August 2003 termination. She also claimed

to have been unable to attempt the PAT from April 2002 until her

termination in August 2003. See infra .

4 0 . Petitioner testified that she could not workout at the

jail gym or otherwise prepare for the PAT afte r her April 2002

automobile accident.

4 1 . Over time, in part due to her inactivity , Petitioner

reached a weight in excess of 400 pounds.

4 2 . Petitioner continued to rely on Dr. Thompson's

March 6, 2002, pre - accident letter to avoid training for, or

tak ing , the PAT. Dr. Thompson never supplemented this letter.

4 3 . Respondent's published policy concerning the PAT

permitted employees who were unable to do PAT for medical

reasons to delay taking it, as follows:

1. Sworn employees unable to participate i n

a semi - annual proficiency because of a

medical condition must have their physician

complete the Medical/Physician's

Recommendation Form, ACSO 94 - 24 and the

Health and Work Status Report, ACSO 96 - 178

and return them to the Human Resources

Bureau.

2. Swor n employees who fail to participate

or demonstrate semi - annual proficiency

because of a medical condition will be

placed on Temporary Restricted Duty (TRD)

for a period of up to twelve (12) months to

rectify the deficiency. The TRD shall not

exceed twelve (12 ) consecutive months, or a

total of eighteen (18) months within a

twenty - four month period. At the end of the

extension period, the sworn employee will be

required to complete and successfully pass

any missed test(s).

3. Sworn employees who fail to d emonstrate

proficiency at the end of the TRD period

will be relieved . . . of sworn duty if not

done so when the employee is placed on TRD.

. . . [sworn employees] suspended from sworn

duty shall be reassigned to non - sworn status

pending administrative ac tion.

Administrative action may range from

permanent non - sworn assignment with all

employee pay and benefits adjusted

accordingly, if a position is available, up

to and including termination. (Bracketed

material added for clarity.)

44 . On or about Nov ember 25, 2002, Petitioner submitted a

Health and Work Status Report from Dr. Bens e n, her chiropractor,

which said she was :

Unable to run and is to be excused from that

portion of the physical agility test until

further notice.

45 . On November 26, 2 002, Respondent Sheriff issued a memo

to Petitioner that provided, in pertinent part:

RE: TEMPORARY RESTRICTED DUTY

t he very nature of corrections requires

instantaneous response to potentially

hazardous or stressful situations. This

response often invol ves extreme physical

exertion. You have provided medical

information from your physician indicating

that you are temporarily unable to fulfill

the essential functions of your appointment

as a Detention Officer.

Therefore, effective immediately, you are

h ereby placed on Temporary Restricted Duty

and directed to report to the Human

Resources Bureau for assignment. You must

provide the Human Resources Bureau with an

updated Health and Work Status Report every

30 days, commencing with the effective date

of t his assignment.

While on Temporary Restricted Duty, the

following conditions shall apply:

1. You shall avoid physical confrontations,

except when necessary to protect yourself or

another person from imminent death or

serious injury.

* * *

5. You will not participate in any training

that would involve activities contrary to

the restriction indicated by your physician.

* * *

An assignment to Temporary Restricted Duty

cannot exceed twelve months. If you are

unable to return to full, unrestricted

dutie s as a Detention Officer at that time,

you will be subject to reclassification to a

position within your capabilities or to

termination.

4 6 . Petitioner concedes that Instruction 5, of the

Sheriff's November 26, 2002, memo, placing her on TRD , amounted

t o Respondent telling her that he was following her doctor's

orders and expected her to follow them , too.

47 . From November 2002, through July 2003, Petitioner

submitted appropriate Health and Work Status Reports from

Dr. Bensen and received approval of T RD from the Employer .

4 8 . The way the foregoing system worked was that at some

point between the 19th and 30th of each month, Petitioner would

visit Dr. Bensen and he would make out a Health and Work Status

Report , certifying that she was "unable to run and is excused

from that portion of the Physical Ability Test until further

notice." (R - 12) A few days later, Petitioner would present the

foregoing Report to a superior officer, who would note on a

Return to Duty Form, the date of his or her conference with

Petitioner concerning Petitioner's restrictions; the date

Petitioner's next Health and Work Status Report was due; and the

date of Petitioner's next scheduled physician's appointment .

This Return to Duty Form authorized Petitioner to be placed in

TRD . (R - 11) Thereafter, a Human Resources Risk Manager signed -

off on the same form to approve the TRD assignment.

49 . Although the Health and Work Status Report Forms and

Return to Duty Forms in evidence do not cover every month

between November 26, 2002, and August 2003, or precisely dove -

tail by date, the tangible items in evidence, together with the

credible testimony and evidence as a whole, support findings

that Petitioner's last counseling by a superior officer occurred

on August 1, 2003; that her next physician's appointment was

expected to be August 26, 2003 ; and that Petitioner was ordered

to remain on TRD, effective July 30, 2003. ( See Findings of

Fact 5 6 - 5 8 )

5 0 . While on TRD from November 2002 to August 2003,

Petitioner was primarily ass igned to the jail's lobby.

Occasionally she was assigned to the command center. Petitioner

was assigned to the lobby , partly due to her good communication

skills. At the time, both locations were full duty detention

officer postings. Neither location h as stairs in itustee

inmates are not handcuffed in the lobbyan s feree - inmates may

be handcuffed in the lobby . The lobby is mostly a public

information outlet and an entrance and exit point for the jail

facility. Currently, ACSO utilizes only civ ilian personnel in

those areas , instead of physically restricted detention

officers, because all sworn detention officers are expected to

be in a state of operational readiness and to be able to respond

as full - service officers.

5 1 . On June 10, 2003, the Employer requested an

independent medical evaluation of Petitioner. Dr. Newcomer, a

medical physician , evaluated Petitioner and provided the

Employer with the following information on June 24, 2003:

DIAGNOSIS: Morbid obesity, bilateral knee

arthritis wi th more recent knee trauma

resulting in chronic pain, hypertension in

fair control.

TREATMENT PLAN: Functional capacity

evaluation is requested and will be set up

at Rehab Solutions. When that information

is available, further assessment of her

specif ic functional abilities to compare the

physical requirements of job description

including physical agility test, can be more

specifically addressed. Her extreme obesity

and advanced degenerative arthritis in the

knee will definitely limit her long term

ab ility for weight bearing exercise and

physical stress. (Emphasis supplied)

52. On June 27, 2003, Rehab Solutions, Inc., wrote

Petitioner in an attempt to schedule , for July 7, 2003, the

physician - ordered f unctional c apacity e valuation .

53. On July 1, 2003, the PAT became mandatory for all

detention officers , including Petitioner .

54. Petitioner took Rehab Solutions a July 1, 2003, letter

(Tr - 142; R - 10) from Dr. Bensen . As a result, Rehab Solutions

elected not to perform the functional c apacity e valua tion of

Petitioner on July 7, 2003 . Dr. Bensen's letter read , in

pertinent part:

[Petitioner] has been seen in this office

for treatment of injuries sustained in an

MVA [sic. "motor vehicle accident"] which

occurred on April 12, 2002. These injuries

incl ude cervicobrachial syndrome, cervical

sprain - strain, knee sprain - strain, and

thoracic sprain - strain . . . she has

recently been able to increase both the

speed as well as the distance of her walking

regimen. Soft tissue injuries typically

take up to 18 m onths to heal and

[Petitioner's] rehabilitation has been

complicated by her weight. . . . any

stressful assessment examination at this

time is likely to re - injure that patient's

knee and it is recommended that such

assessment be postponed until October of

this year to allow for more complete

resolution of her symptoms.

55. Since the foregoing letter from Dr. Bensen was

presented to Rehab Solutions, Inc., it would seem to be

suggesting, not that Petitioner could attempt the PAT in

October 2003, but that R ehab Solutions, Inc., ought not to

perform a functional capacity evaluation of Petitioner for

Dr. Newcomer and the Employer until October 2003. It is not

clear when the Employer came into possession of this letter of

Dr. Bensen.

5 6 . On July 29, 2003 , Dr. Bensen filled out a Health and

Work Status Report to the effect that he had examined Petitioner

on July 29, 2003; that she might return to work on July 30,

2003; and that she was "unable to run and is to be excused from

that portion of the physical a gility test until dated [sic.]

listed below - October 2003" ; and that he expected Petitioner to

return for her next appointment on August 26, 2003. (R - 12)

This was the last Health and Work Status Report submitted to the

Employer before Petitioner's termi nation on August 7, 2003.

( See Finding of Fact 49 . )

5 7 . The last Return to Duty Form before Petitioner's

termination shows that Susan Wiley, on behalf of the Employer,

discussed Petitioner's restrictions with her on August 1, 2003;

continued Petitioner on temporary restricted duty , effective

July 30, 2003; and expected Petitioner to supply a new Health

and Work Status Report on September 1, 2003, from a next

scheduled physician's appointment date of August 1, 2003.

(R - 1) ( See Finding of Fact 49.)

5 8 . From Findings of Fact 5 6 and 5 7 , it is further found

that despite some discrepancy in dates between Dr. Bensen's

reports and the Employer's Return to Duty Forms, Petitioner's

supervisors knew on August 1, 2003, that Petitioner might be

able to attempt the PAT in October 2003.

5 9 . However, Respondent Employer terminated Petitioner on

August 7, 2003, by a memorandum of that date , stating :

In July of 2000, the Alachua County

Sheriff's Office established a Physical

Agility Test for Detention Officers at t he

Department of the Jail. The test was

developed to test a Detention Officer's

ability to meet essential minimum physical

requirements of the job. The test,

notification of requirements, and trial

period were implemented over a 3 year time

period. This test is specifically designed

to assess one's ability to perform essential

functions of your position which are

physical in nature. Your medical

information on file with the Human Resources

Bureau indicates that you are unable to

perform this test either now or in the

foreseeable future.

Detention Officers must be able to carry out

their duties in a manner which safeguards

the safety and welfare of the inmate

population as well as employees. I have

allowed you to function in a restricted

capacity with t he hope that you would make

some progress in your rehabilitation,

however, I note that no improvement in your

medical condition h as been documented.

Keeping in mind the safety needs of this

agency as well as the requirements of the

position, I must accord ingly end your

assignment as a Detention Officer with the

Department of the Jail of the Alachua County

Sheriff's Office effective as of 1700

August 7, 2003. I encourage you to contact

Human Resources Bureau Chief Sherry Larson

at 367 - 4039 to discuss your interest in

other vacant positions for which you may

qualify.

Please note your circumstances qualify you

to take advantage of ACSO's Transition

Period which allows you to use up to sixty

(60) days of accumulated leave (sick,

annual, compensatory, special event) to

transition into retirement or other non - ACSO

employment. In order to take advantage of

this option you must contact Human Resources

at 367 - 4040 immediately upon receipt of this

memorandum. (Emphasis supplied.)

60 . Petitioner was employed for 3.8 years between her

hire/transition to ACSO in January 1998 and her termination in

August 2003.

6 1 . Petitioner contended that she never asked for an

accommodation of her disability, but clearly , she accepted TRD

for as often and as long as it was provi ded, at least from

November 26, 2002 to August 7, 2003.

6 2 . During her entire 22 years of service as a detention

officer, Petitioner was never disciplined or evaluated as

unsatisfactory for any reason.

6 3 . After August 7, 2003, Petitioner contacted Ms. Larson

concerning continued employment with ACSO and was informed that

there were two ACSO positions available. Petitioner understood

these positions to be "deputy" and "detention assistant."

6 4 . Petitioner understood the "deputy" position to be one

f or "road deputy," a position which requires passing an even

more rigorous PAT than the one Petitioner would have to have

passed as a jail detention officer. ( See Findings of Fact 24 -

27.)

6 5 . Although the detention assistant position was not

commensurate with the salary level and duties of a detention

officer, Petitioner admitted to being qualified and capable of

performing that job description in August 2003 .

6 6 . Petitioner told Ms. Larson that Petitioner would get

back with her, but because Petitioner d id not contact Ms. Larson

within two days, Ms. Larson assumed Petitioner would not be

applying for either current ACSO job opening or for any future

ACSO openings , so she did not continue to contact Petitioner

thereafter.

6 7 . Petitioner claims that appro ximately August 20, 2003,

Dr. Thompson provided medical documentation indicating that she

could attempt the PAT. However, Petitioner concedes that she

never provided this information to Respondent. Dr. Thompson's

alleged August 20, 2003, permission slip also was not offered in

evidence. (TR - 201 - 202.)

6 8 . Petitioner's testimony is conflicted as to her

physical limitations from July 2003 to the date of hearing. She

testified that prior to her termination by Respondent, her

medical condition did not proh ibit her performing any of the

"essential functions" of her job as a detention officer, except

running. At one point, she testified that after October 2003,

(the earliest date of possible PAT performance as predicted by

Dr. Bensen), she was able again to perform all her household

chores. She also testified that after her termination in August

2003, her medical condition, which at least until October 2003,

included no prolonged walking or standing and no running ,

prevented h er from seeking a range of jobs outside her field,

such as day care provider, cashier, mail deliverer, cook,

grocery bagger, waitress, and nurse's aide.

6 9 . Petitioner testified that she continued to be unable

to do her housework, yard work and general life activities at

least un til the beginning of 2004. Petitioner also testified

that she believed she could fulfill her detention officer job

description as of the date of hearing. She testified that she

could attempt the PAT (without running) as of the date of

hearing , but she wa s not sure she could pass it. S he assert ed

that the PAT is not a bona fide requirement of the job of

detention officer .

70 . Petitioner testified that f rom some time post -

termination to May 2004, she suffered from depression and

anxiety due to loss of h er job, but she provided no medical

corroboration of this part of her testimony. Nonetheless , at

some point, she has been able to apply for a counselor position

at Alachua County Work Release; a job at the Alachua County

L ibrary; and a job at the Court Se rvices Office. For reasons

unknown, she was not hired at any of them. She was not hired by

the Bradford County Sheriff's Department in 2003 because it had

no vacant positions at that time . She has intentionally not

applied for any correctional officer j obs. She has a college

degree in business administration, but apparently has not sought

employment in that field.

7 1 . Petitioner has lost no health benefits as a result of

her termination by Respondent Employer, because she has always

had health insuranc e through her husband's employment. She did

lose salary, retirement benefits , dental plan coverage, and

supplemental life insurance coverage as a result of her

termination .

7 2 . Petitioner has agreed to pay her attorney a reasonable

fee in this case.

CONC LUSIONS OF LAW

7 3 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Chapter 760, and Section 120.57(1), Florida

Statutes.

7 4 . Subsection 760.10(1)(a), Florida Statutes, provides:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge 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 an

ind ividual's race, color, religion, sex,

national origin, age, handicap , or marital

status. (Emphasis supplied.)

7 5 . Although this process, in this forum, may not

adjudicate any rights under federal law, it is appropriate to

interpret Subsection 760.10(1) (a), Florida Statutes, by

reference to federal case law under the Civil Rights Act (Title

VII), the Rehabilitation Act, and the Americans with

Disabilities Act (ADA). School Board of Leon County v. Weaver ,

556 So. 2d 443 (Fla. 1st DCA 1990); Hunter v. Win n - Dixie Stores,

Inc. , FCHR Case No. 82 - 0799 (February 23, 1983).

7 6 . Accordingly, Petitioner must prove the following in

order to establish a prima facie case of handicap

discrimination:

A. She is handicapped within the meaning of

the Florida Civil Righ ts Act;

B. She was otherwise qualified for her job,

with or without reasonable accommodation;

and

C. She was terminated solely by reason of

her handicap.

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

(11th Cir. 1999); Gordon v. E.L. Hanuin & Assoc., Inc. , 100 F.3d

907 (11th Cir. 1999) ; and Brand v. Florida Power Corporation ,

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

7 7 . Florida has yet to adopt the more enlightened term,

"disability," and Chapter 760, Florida Statutes, does not define

"h andicap." However, in Brand , supra , the court adopted the

definition of handicap found in Section 504 of Title V of the

Rehabilitation Act of 1973, and stated:

Section 504 specifically refers to 29 U.S.C.

Sec. 706(8)(B) for the definition thereof.

The la tter defines an "individual with

handicaps," subject to certain exceptions

not applicable to this case, as one "who (i)

has a physical or mental impairment which

substantially limits one or more of such

person's major life activities, (ii) has a

record of such impairment, or (iii) is

regarded as having such an impairment."

Examples of major life activities include

caring for oneself, breathing, learning, and

working. (Emphasis supplied).

Id. at 510, FN 10.

7 8 . The same definition of disability is set o ut in the

ADA. In Toyota Motor Manufacturing, Kentucky, Inc., v.

Williams , 112 S. Ct. 681 (2002) , the United States Supreme

Court, in a unanimous decision provided guidance, for purposes

of the ADA, as to how "handicap/disability" is to be proven:

* * *

Merely having an impairment does not make

one disabled for purposes of ADA. Claimants

also need to demonstrate that the impairment

[substantially] limits a major life

activity. (Bracketed material added for

clarity.)

* * *

The word "substantial" thus c learly

precludes impairments that interfere in only

a minor way with the performance of manual

tasks from qualifying as disabilities Cf.

Albertson's, Inc. v. Kirkinburg , 527 U.S.,

at 565, 119 S. Ct. 2162 (explaining that a

"mere difference" does not amoun t to a

"significant restrict[tion]" and therefore

does not satisfy the EEOC's interpretation

of "substantially limits").

* * *

"Major life activities" thus refers to those

activities that are of central importance to

daily life. In order for performing manual

tasks to fit into this category -- a

category that includes such basic abilities

as walking, seeing, and hearing, -- the

manual tasks in question must be central to

daily life. If each of the tasks included

in the major life activity of performing

manual tasks does not independently qualify

as a major life activity, then together they

must do so.

* * *

We therefore hold that to be substantially

limited in performing manual tasks, an

individual must have an impairment that

prevents or severely res tricts the

individual from doing activities that are of

central importance to most people's daily

lives. The impairment's impact must also be

permanent or long - term. See 29 CFR §§

1639.2(j)(2)(ii) -- (iii) (2001).

It is insufficient for individuals

atte mpting to prove disability status under

this test to merely submit evidence of a

medical diagnosis of an impairment.

Instead, the ADA requires those "claiming

the Act's protection . . . to prove a

disability by offering evidence that the

extent of the lim itation [caused by their

impairment] in terms of their own experience

. . . is substantial." Albertson's, Inc. v.

Kirkinburg, supra , at 567, 119 S. Ct. 2162.

. . .

* * *

. . . Congress intended the existence of a

disability to be determined in such a ca se -

by - case manner. See Sutton v. United Air

Lines, Inc. , supra , at 483, 119 S. Ct. 2139;

Albertson's, Inc. v. Kirkinburg supra . at

556, 119 S. Ct. 2162. . . . The

determination of whether an individual has a

disability is not necessarily based on the

name or diagnosis of the impairment the

person has, but rather on the effect of that

impairment on the life of the individual");

ibid . (The substantially limited in a major

life activity must be made on a case - by - case

basis.)

* * *

An individual assessment of the effect of an

impairment is particularly necessary when

the impairment is one whose symptoms vary

widely from person to person.

* * *

When addressing the major life activity of

performing manual tasks, the central inquiry

must be whether the claima nt is unable to

perform the variety of tasks central to most

people's daily lives, not whether the

claimant is unable to perform the tasks

associated with her specific job.

* * *

The definition is intended to cover

individuals with disabling impairments

regardless of whether the individuals have

any connection to a workplace.

* * *

. . . the manual tasks unique to any

particular job are not necessarily important

parts of most people's lives. As a result,

occupation - specific tasks may have only

limited relevance to the manual task

inquiry.

* * *

The Court, therefore, should not have

considered respondent's inability to do such

manual work in her specialized assembly line

job as sufficient proof that she was

substantially limited in performing manual

ta sks.

* * *

Yet household chores, bathing, and brushing

one's teeth are among the types of manual

tasks of central importance to people's

daily lives, a n d should have been part of

the assessment of whether respondent was

substantially limited in performin g manual

tasks.

79 . Respondent's position is that the medical evidence and

Petitioner's testimony herein do not meet the foregoing tests to

establish a "handicap," because Petitioner can now manage her

daily life. The undersigned concludes to the contr ary.

80 . Although Petitioner contends that she can now (and as

of October 2003 could have) attempted the PAT, the bulk of her

testimony as to why she has been unable to mitigate potential

post - termination damages for "b ack pay" by obtaining other

employm ent hinges upon her total inability to run or even to

walk for more than a moderate distance. Apparently,

Petitioner's other physical conditions that prohibit long - term

standing also remain as a continuous physical limitation upon

her major life activitie s.

8 1 . Moreover, e ven if an employer merely views an employee

as disabled, that is sufficient to meet the first prong of the

tri - partite test. See Rossbach v. City of Miami , 371 F.3d 1354

(11th Cir. 2004). Respondent Employer viewed Petitioner as

handi capped, and consequently as unfit for duty.

8 2 . Regardless of how the parties' respective proposals

have woven the "words of art," there is no factual dispute that

both Petitioner and Respondent viewed Petitioner as disabled

from November 2002 through Au gust 7, 2003, the date of

termination. Nor is it disputed that Petitioner considered her

disabled condition unchanged at least until October 2003. It is

equally clear and undisputed that even though she was not on TRD

for the entire period, Petitioner wa s unable to perform at least

two essential functions of her job as a detention officer ( rapid

response and confrontational control of inmates) from the date

of her April 2002 motor vehicle accident until at least October

2003 (1 7 months).

8 3 . Therefore, it is concluded that at all times material,

Petitioner was "handicapped," pursuant to Chapter 760, and was

unable, with or without accommodation, to perform the essential

functions of her job. These conclusions together mean that she

has not made a prima facie case of handicap discrimination.

8 4 . Petitioner relied on medical excuses to avoid training

for the PAT as well as to avoid taking the PAT from March 6,

2002 until August 7, 2003 (17 months) .

85 . August 7, 2003, the date of termination, was only

about 9 and 1/2 months after November 26, 2002, the date

Petitioner was most recently placed on TRD. By Respondent's

policy, she was entitled to up to 12 consecutive months of TRD.

( See Finding s of Fact 43 and 45 ). Two reasons given by the

Employer for Petitioner's termination , that her medical

information on file indicated that she was unable to perform the

PAT in the foreseeable future and that no improvement in her

medical condition ha d been documented (See Finding of Fact 59),

were not articulated we ll. It was shown that Dr. Bensen, the

chiropractor treating only Petitioner's knee, had written the

Employer that Petitioner might attempt the PAT on October 2003.

( See Finding of Fact 5 6 ). However, the Employer also had the

report of the independent me dical physician Dr. Newcomer, which

stated that Petitioner's combined medical conditions would

"definitely limit her long term ability for weight bearing

exercise and physical stress , " ( see Finding of Fact 51) , plus

the fact that for all or most of the 3.2 years Petitioner had

worked for ACSO, she had been unable to perform essential

functions of her job description. ( See Findings of Fact 5, 10 -

13, 16 - 20 , and 35 - 39). By her own admission, Petitioner could

not have performed the PAT or all her job descript ion duties in

October 2003, even if the Employer had continued to employ her

until October 2003. It is clear Petitioner could not fulfill

the job requirements.

8 6 . This case is only complicated by the effect that

Respondent's PAT requirement may hav e. It is undisputed that

the PAT did not become a mandatory portion of Petitioner's job

description until July 1, 2003. The PAT requirement permitted a

detention officer to delay taking it for 12 months, due to a

medical condition, and further permitted that officer to stay on

TRD for up to 18 months within a 24 - month period.

8 7 . Respondent gave as its reason for terminating

Petitioner, that she could not perform the PAT. The reason is

not clearly pretextual. That was the prime reason Respondent

chose to terminate Petitioner, but the termination letter also

stated, " T his test is specifically designed to assess one's

ability to perform essential functions of your position which

are physical in nature ," and "detention officers must be able to

carry out t heir duties in a manner which safeguards the safety

and welfare of the inmate population as well as employees . "

Respondent was justified in terminating Petitioner for the

permissible, non - discriminatory, reason that it appeared that

she was permanently (n ot temporarily) disabled from perform ing

at least two of the essential functions of her job duties which

the PAT was designed to test: rapid responses and controlling

prisoners. Moreover, at best, it was only possible she could

attempt the PAT as of Octo ber 2003, and at worst, that she could

only be re - evaluated or begin training for the PAT in

October 2003. ( See Findings of Fact 43, 55, and 58.)

Petitioner concedes that even in 2005, she is unsure that she

can pass the PAT.

8 8 . Employers are required to make reasonable

accommodations for their employees' handicaps, See Kelly v.

Bechtel Power Corporation , 633 F. Supp. 927 (S.D. Fla. 1986),

but they are not required to create work that the employee can

do. An employer has the right to determine particu lar job

requirements as well as the right to change the requirements as

necessary in a manner that serves the legitimate business

interest of the employer. Fussell v. Georgia Port Authority ,

906 F. Supp. 1651 (11th Cir. 1995), citing Wilson v. AAA

Plumbin g and Pottery Corp. , 34 F.3d 1024, 1030 (11th Cir. 1994).

8 9 . The PAT simulates the actual job duties of detention

officers. Despite Petitioner's current belief she can do all

parts of the PAT except running, running is such an integral

part of the PAT that it is clear Petitioner is, even now, asking

to be excused from more than 50 percent of the test , p lus she

has lifting, standing, and crouching problems. ( See Finding s of

Fact 24 - 27 .)

90 . Petitioner's view is that she should be assigned to

the lobby or elsewhere within the jail so that she will not have

to look under bunks, run, climb stairs, or control prisoners,

but this proposed "accommodation" would require that Respondent

schedule all its able - bodied detention officers around

Petitioner's needs, instead of around Respondent's legitimate

business interests. Accommodating Petitioner this way would

eliminate essential functions of the job of a detention officer

for a single individual. Employers are not required to

eliminate essential functions of the job. Rio v. Runyon , 972 F.

Supp. 1445 (S.D. Fla. 1997), or to wait an indefinite period for

an accommodation to achieve its intended effect. Myers v. Hose ,

50 F.3d 278, 283 (4th Cir. 1995) decided under the ADA.

9 1 . Petitioner has failed to state a prima facie case, but

even if she had, Respondent has stated a non - discriminatory

reason (that Petitioner cannot do the job), which has not been

shown to be pretextual.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it i s

RECOMMENDED: that the Florida Commission on Human Relations

enter final order dismissing the Petition for Relief and Charge

of Discrimination herein.

DONE AND ENTERED this 7th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 7th day of June, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawf ord, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Bill Salmon, Esquire

410 Southeast 4th Avenue, Suite A

Gainesville, Florida 32601

Linda G. Bond, Esquire

Allen, Norton, and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

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 b e filed with the agency that

will issue the final order in this case.