04-002862 Matthew Avery vs. City Of Pensacola, Florida Status: Closed Recommended Order on Thursday, August 11, 2005.

Summary: Petitioner failed to establish that with a proven disability he could perform essential functions of the employment requirements in question and failed to prove that there was a reasonable accommodation which would allow him to do so.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW AVERY , )

)

Petitioner, )

)

vs. ) Case No. 04 - 2862

)

CITY OF PENSACOLA, FLORIDA , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for final proceeding

and hearing before P. Michael Ruff, duly - designated

Administrative Law Judge of the Division of Administrative

Hearings. The formal hearing was conducted in Pensacola,

Florida, on April 18, 2005. The appearances we re as follows:

APPEARANCES

For Petitioner: Debra Dawn Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

For Respondent: Millard L. Fretland, Esquire

Conroy, Simberg, Ganon, Krevans,

& Apel, P.A.

125 Wes t Romana Street, Suite 150

Pensacola, Florida 32521

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Petitioner was subjected to an act of employment

discrimination based upon his termination from emplo yment rather

than allegedly having his disability (blindness) accommodated by

the Respondent employer in such a way as to allow his continued

employment.

PRELIMINARY STATEMENT

This cause beg a n by the Petitioner's filing of a charge of

discrimination with the Florida Commission on Human Relations

(Commission). In that charge he alleged that he had been

discriminated against because of a handicap while working for

Energy Services of Pensacola (ESP) , a division of the City of

Pensacola. The charge of discr imination was investigated by the

Commission, which ultimately entered a Determination of "No

Cause." Thereafter , the Petitioner filed a Petition for Relief ,

which was transmitted to the Division of Administrative Hearings

and the undersigned administrati ve law judge . The Respondent is

an agency of local government which assigns employees to work in

various divisions. The Petitioner worked for ESP as a "field

technician , " until he was terminated early in the year 2002. He

had held that position since so metime in 1998.

The cause came on for hearing as noticed. The Petitioner

presented his own testimony and one other witness, Robert

Lupton. The Respondent cross - examined the Petitioner's

witnesses and presented documentary evidence. Upon the

conclusio n of the hearing the parties elected to order a

transcript thereof and to avail themselves of the opportunity to

submit proposed recommended orders. The Proposed Recommended

Orders were timely submitted after the stipulated grant of one

extension , and hav e been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner , at times pertinent hereto , was an

employee of the Respondent, City of Pensacola, ( ESP). He had

been employed by the Respondent since 1993. He was promote d to

the position of field service technician in 1998. The

Petitioner was assigned to ESP and had been working in that

capacity sometime in 1998.

2. When the Petitioner was promoted to the position of

field service technician in 1998 he was required to o btain a

c ommercial driver's license . Part of the qualifications for his

position w as that the holder have a c ommercial driver's license .

3. In order to obtain a c ommercial driver's license ,

Mr. Avery was required to pass a visual acuity test and was

req uired to have good vision in order to keep the license to

drive. The requirement for having a c ommercial driver's license

remained in force for the position of field service technician

through the dates of Mr. Avery's employment in that position

until his termination. The re is no evidence that there was any

field service technician employed by ESP who did not possess a

c ommercial driver's license while working there.

4. The Petitioner was assigned to work in the ESP gas

meter shop, calibrating and repai ring city gas meters. From

time to time , however, he was required to work in the field in

various capacities. Indeed, all field service technician s such

as Mr. Avery, were always subject to being told to perform

various duties at ESP , including duty in t he field, depending

upon where or the city needed the worker most at the time. When

field service technician s were required to work outside the

shop, the majority of time they worked alone and were therefore

required to be able to and be licensed to opera te various kinds

of motor vehicles. They were required to operate trucks and

other motor vehicles , as well as backhoes, ditching machines,

and other equipment. Mr. Avery's job description as a field

service technician required him to be able to safely op erate

backhoes and ditching machines.

5. Because of his vision difficulty, Mr. Avery admitted

that he could only operate a backhoe safely if no other persons

were around. He also admitted that he was unable to perform any

of the job duties require d of a field service technician outside

the meter shop because they all involved driving or operating

vehicles which he became unable to do because of his vision

problem.

6. Mr. Avery was diagnosed with diabetes many years

preceding his employment with ESP. Sometime in the year 2000 he

sustained an injury , and when released to return to work full -

time , in June of 2000 , ESP allowed him to do so. In April 2001,

he told his supervisor, Ms. Nickerson , that he was having

trouble with his vision and thought it mi ght be attributable to

some medication that he was tak ing . In fact, the evidence

indicates that it may have been attributable to his long - term

diabetes condition.

7. In any event, in July 2001, Mr. Avery was asked to take

a company truck and go alone to spot the location of some city

gas lines. During this assignment Mr. Avery ran a red light in

a company truck. He received a traffic ticket for running the

red light and told his supervisor afterward that he was not able

to drive responsibly any longer until he found out what was

occurring with his vision difficulty.

8. Subsequent to this conversation with Ms. Nickerson , in

July of 2001, Mr. Avery returned to work in the meter shop. A

few days later he was required to go out on a " crew truck " for

seve ral days. While working on the crew truck , Mr. Avery

sustained and orthopedic injury to his clavicle and was

restricted from working , beginning sometime in late July of

2001. After the injury , in late July 2001, he never actually

returned to work for ESP until the date of his termination .

9. The Petitioner was not released to return to full duty

at work from his orthopedic injury by his physician until

December 2001. At that point the Respondent required that he

pass a vision screening test in order to return to his position

as a field service technician, because of his past driving

difficulty related to his vision.

10. The vision screening test was performed by Dr. Herron.

Dr. Herron opined in December 2001, that Mr. Avery was legally

blind and coul d not drive an automobile. The doctor measured

the Petitioner's visual ac uity as 20/200, the standard for legal

blindness , and stated that his condition was not likely to

improve.

11. The Petitioner was terminated from his position on

March 22, 2002, b ecause he was unable to perform his job because

he could not maintain the required driver's license due to his

visual difficulty. The Petitioner maintains that he should have

been "accommodated" regarding his inability to drive a vehicle ,

due to his visua l handicap, by permanent assignment to the meter

shop and thus never having to drive a motor vehicle or motor

equipment. He contends that he would not need a commercial

driver's license with such an assignment. However, the

requirement to have a commerci al driver's license and to operate

various vehicles and equipment is a significant part of the

requirements of the f ield s ervice t echnician's position.

Indeed, Mr. Lup ton in his testimony , established that work

outside the meter sh o p was a routine , regula rly - requested job

duty , for field service technician s such as the Petitioner.

F ield service technician s have to be able to drive vehicles and

motor equipment in order to go out, pick - up, and deliver meter

parts, spot gas lines, do excavations and other fu nctions

requiring the ability and the license to operate and drive

equipment or vehicles. Indeed, Mr. Lup ton's testimony

establishes that no one would be able to perform most of the

many tasks of a f ield service technician at ESP if he

permanently lost th e ability to drive a vehicle . A non - driving

employee could work in the meter shop only ; h owever, a

substantial portion of the duties of f ield service technician s

do not involve work in the meter shop but rather in field

duties.

12. After his termination in 2002 Mr. Avery applied for

and received Social Security Disability entitlement and benefits

due to his blindness. In order to establish one's claim for

Social Security Disability Benefits , one must prove to the

Social Security Administration that the applicant is not able to

perform in any employment.

13. The Petitioner can perform most of the activities of

daily living satisfactorily except those which depend upon his

eyesight. His eyesight is sufficiently impaired to constitute a

significant impai rment to an activity of daily living (i.e.

seeing). This is especially critical as to his inability to

drive a vehicle , although his does have some vision. In fact,

when his eyes are examined currently , he is able to read the

first line of an eye chart , the second line and then a letter or

two of the third line. The Petitioner admits that he is unable

to obtain a driver's license because his eye sight is

insufficient. H e is not able to perform any job with the

Respondent that requires a driver's license . If his employment

with ESP were so protected as to be confined to the meter shop

duties only he may be able to perform those functions. However,

a major portion of the duties of the field service technician

involve the requirement that he be able to dr ive and operate

motor vehicles and equipment. This the Petitioner is unable to

do .

14. The Petitioner contends that his termination was

actually due to reasons of personal dislike of him by his

supervisors. He has applied for many other jobs unsuccessf ully

in the Pensacola area since his termination. He contends that

this is due to a n "unspoken law" in Pensacola that effectively

"blacklist s " former employees of the city, county or state

governments who have been terminated from those positions.

Other than his own opinion testimony, he offered no documentary

evidence or testimony of other witnesses to corroborate this

belief on his part.

15. The Petitioner attempted to assert that another ESP

employee, Mr. Myers, was a similarly - situated, exemplar emp loyee

who had not been terminated when he suffered a disability or

handicap during his employment , but was rather retained in ESP's

employment as a field service technician. However, as

established by the testimony of Mr. Lupton , Mr. Myers suffered

severe burns in an accident and was medically restricted from

contact with direct sunlight. Mr. Myers, however, continued to

be able to drive a car, a tractor, a dump truck, and other

equipment to , from , and around work sites. He continued to

qualify for and r etain his commercial driver's license . His

employer was able to accommodate his disability or medical

restriction involving reduced contact with direct sunlight

because even with that restriction he was still able to perform

the duties of his job. Theref ore, Mr. Myers was not terminated

and was continued in his employment with the accommodation

concerning the restriction from contact with direct sunlight.

Thus, because of the differences in Mr. Myers situation and

condition, particularly the fact that he could remain licensed

to and could physically operate vehicles and equipment, he is

not truly a similar l y - situated employee who was disparately and

more favorably treated than was the Petitioner.

CONCLUSIONS OF LAW

16. The Division of Administrat ive Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

17. The burden of proof in this proceeding is on the

Petitioner to establish by preponderant evidence that his

termina tion from employment constituted unlawful discrimination

because of disability or handicap, within the purview of Chapter

760, Florida Statutes. See Florida Department of Transportation

v. J.W.C. Co. , 396 So. 778, 788 (Fla. 1st DCA 1981); St. Mary's

Honor Center v. Hicks , 509 US 502 (1993) (in a proceeding where

the Petitioner asserts an unlawful employment practice, although

the burden of going forward with evidence may shift, the

ultimate burden of persuasion to establish proof of an unlawful

employment practice remains with the Petitioner ) .

18. Because the Florida Civil Rights Act (FCRA) , Chapter

760 , Florida Statutes, is patterned after the Federal Civil

Rights law, federal case law interrupting the federal civil

rights statutes applies to interrupting the provisions of

Chapter 760 Florida Statutes. See Green v. Burger King

Corporation , 728 So. 2d 369, 370 - 71 (Fla. 3rd DCA 1999); School

Board of Leon County v. Hargis , 400 So. 2d 103, 108 n. 2 (Fla.

1st DCA 1981). See also Green v. Seminole Electric Co operative ,

Inc. , 701 So. 2d 646, 647 (Fla. 5th DCA 1997) (FCRA "should be

construed in conformity with" the Federal Americans With

Disabilities Act of 1990 [the "ADA"], 42 USC Section 12101 et

seq ., and related regulations).

19. Intentional discrimination c an be proven in two ways,

either by direct evidence of discriminatory intent or through

circumstantial evidence. See McDonnell - Douglas Corporation v.

Green , 411 U.S. 792 , 804 (1973) ; Burrell v. Board of Trustees of

Georgia Military College , 1205 F.3d 13 90, 1393 - 94 (11th Cir.

1997) ("[d]irect evidence is 'evidence, which, if believed,

proves existence of fact in issue without inference or

presumption'"). (Citation omitted by the court).

20. In the absence of direct evidence, as is the situation

at bar, the Petitioner must put forth a prima facie case, which

consists of the following: (a) that he was handicapped by

having a disability , physically or mentally, that substantially

limits one or more major life activities; (b) that he is able to

perform the assigned job duties satisfactorily with or without

reasonable accommodation; (c) that there is a record of his

having such handicap or disability, that the employer knew of it

or that he was generally regarded as having such impairment;

that despite his sa tisfactor y performance he was terminated from

his employment , when other s, similar ly situated , were given more

favorable treatment. Clark v. Jackson County Hospital , 20 FALR

1182, 1184 (FCHR 1997). See also Brand v. Florida Power

Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA 1994) .

21. There is no doubt that the first element of the

Petitioner's prima facie case, that he has a "disability," has

been established. The Petitioner has a substantial loss of

vision , which vision impairment inhibits major lif e activities

such as seeing itself, working , and in his particular case ,

driving. Although, the Petitioner has some eyesight remaining,

it is clear from the evidence that he is unable to drive and to

maintain a commercial driving license. It is also obvi ous that

the Petitioner suffered an adverse employment event in that he

was ultimately terminated. It has also been proven by the

Petitioner that the employer was aware of his disability

involving his visual difficulty because he informed his

supervisor o f it.

22. I n order to make out a prima facie case the Petitioner

is also required to establish that he is qualified and capable

to perform the "essential functions" of the job in question,

that of field service technician. He must be able to do so

"with or without reasonable accommodation" by the employer.

Sutton v. United Airlines, Inc. , 527 U.S. 471 - 459 (1999). See

also 42 USC 12111(8). The preponderant , persuasive evidence

demonstrates that one of the "essential functions " of the job of

field servic e technician is possession of a commercial driver's

license and the ability to drive a motor vehicle and other types

of equipment. The record clearly demonstrates that a person who

is permanent ly unable to hold a driver's license and to drive

vehicles or other equipment cannot be employed at ESP in any

capacity. This is because working inside the meter shop and

adjusting, calibrating, or otherwise repairing meters is not the

major portion of the job duties of field service technician .

The duties of that position occurring outside the meter shop

revolve , in large part , around the ability to drive motor

vehicles , as well as other types of equipment such as backhoes,

tractors, etc. If an employee as such as the Petitioner is

unable to do those things, he ca nnot perform the essential

functions of the job , absent some "reasonable accommodation."

23. In the case at hand, the Petitioner has not

demonstrated what that reasonable accommodation might be. He

was only able to demonstrate that he could perform the job in

the meter shop if he was absolved from having to perform the

other duties of a field service technician involving use of a

commercial driver's license and operation of vehicles and other

motorized equipment. Such however, is not a "reasonable

accommodation" since it really amounts to asking the employer to

eliminate a substantial and essential function of the job

itself. An employer is not legally required to "accommodate" an

employee by eliminating an essential job function, rather, the

"acco mmodation" must consequently enable the employee to perform

those job functions. The employer is not required to make

substantial modifications in the function s of the job in the

interest of accommodating the disability. See Sheets v. Florida

East Coast Railway, Co. , 132 F. Supp. 2nd 1031, 1035 (SD Fla.

2001). The accommodation sought by Mr. Avery involving not

requiring him to drive any kind of vehicle would eliminate , and

not merely accommodate , his performance of an undisputed

essential job function. Therefore, he is not entitled to relief

under the principles of the ADA, as applied to Section 760.10,

Florida Statutes. See Hensley v. Punta Gorda , 686 So. 2d 724,

726 (Fla. 1st DCA 1997) (employee who could not perform an

essential job function is not entitled to ADA protection ) .

24. Aside from the context of the Petitioner not proving

all the elements of his prima facie case as delineated above,

the Respondent also demonstrated that it had a legitimate , non -

discriminatory reason for the Petitioner's t ermination. That

is, because of the unfortunate event of the Petitioner's

blindness, he was unable to obtain a commercial driver's license

and to perform driving functions as an essential function of his

position, involving all sorts of motor vehicles and motorized

equipment. Because of this he was unable to perform the

essential functions of the job and the employer was therefore,

within its rights to terminate him. There was no proof that

there was some other reasonable accommodation, possibly even

inc luding placement in a different employment position, which

would have accommodate d the Petitioner's disability. Moreover,

it is the Petitioner's responsibility to request one and

identify an accommodation that will be reasonable. See Gaston

v. Bellingra t h Gardens and Home, Inc. , 167 F.3d 1361, 1363 - 64

(11th Cir. 1999).

25. Finally, against this articulation of the employer's

reason for the Petitioner's termination , the Petitioner did not

prove that such reasons were pre - textual in nature. The

Petitione r attempted to show that he was treated in a disparate

way by demonstrating that Mr. Myers , disabled as referenced in

the above Findings of Fact, had been retained in his employment

position as a field service technician , wh ereas the Petitioner

was termina ted. The fact s demonstrate , however , that they are

not comparable employees. The Petitioner obviously had as his

principal disability his lack of visual acuity ; Mr. Myers on the

other hand had been disabled due to severe burns. Mr. Myers

differs from th e Petitioner in his ability to perform the

essential functions of the job, in that he can perform the

essential functions of the job and the Petitioner could not.

E ven though Mr. Myer's disability requires that he avoid

extensive contact with direct sunli ght on his skin, was still

able to fully function , driving all sorts of vehicles and

equipment for the Respondent employer and to continue to be able

to lawfully posses s and use a commercial driver's license . The

Petitioner could not. Thus they are not c omparable , similarly -

situated in that Mr. Myers could perform the essential functions

of the job Mr. Avery could not.

26. In summary, in view of the above Findings of Fact and

Conclusions of Law, the Petitioner has not established a prima

facie case of d iscrimination based upon a disability for the

reasons delineated above. Moreover, even if that were the case,

the Respondent has demonstrated a legitimate , non - discriminatory

business reason for terminating the Petitioner. Consequently,

the Petitioner ha s not established his burden of proof and the

Petition must fail.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED: That a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

in its entirety.

DONE AND ENTERED this 1 1 th day of August , 2005 , in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of August , 200 5 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Debra Dawn Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

Millard L. Fretland, Esquire

Co nroy, Simberg, Ganon, Krevans,

& Apel, P.A.

125 West Romana Street, Suite 150

Pensacola, Florida 32521

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.