04-003126
Norman K. Wright vs.
Universal City Development Partners D/B/A Universal Orlando
Status: Closed
Recommended Order on Tuesday, December 21, 2004.
Recommended Order on Tuesday, December 21, 2004.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8NORMAN K. WRIGHT, )
12)
13Petitioner, )
15)
16vs. ) Case No. 04 - 3126
23)
24UNIVERSAL CITY DEVELOPMENT )
28PARTNERS, d/b/a UNIVERSAL )
32ORLANDO, )
34)
35Respondent. )
37)
38RECOMMENDED ORDER
40Administrative Law Judge (ALJ) Daniel Manry conducted the
48administrative hearing in this proceeding on behalf of the
57Division of Administrative Hearings (DOAH) on October 27, 2004,
66in Orlando, Florida.
69APPEARANCES
70For P etitioner: Norman K. Wright, pro se
78826 Grand Cayman Court
82Orlando, Florida 32835
85For Respondent: J. Lester Kaney, Esquire
91Cobb & Cole
94150 Magnolia Avenue
97Post Office Box 2491
101Daytona Beach, Florida 32115 - 2491
107STATEMENT OF THE ISSUES
111The issues for determination in this proceeding are whether
120Respondent discriminated against Petitioner on the basis of a
129handicap , within the meaning of Section 760.10, Florida Statutes
138(2002), and whether the same alleged discrimination violated
146Section 448.045, Florida Statutes (2002).
151PRELIMINARY STATEMENT
153On August 11, 2003, Petitioner filed a complaint of
162discrimination with the Florida Commission on Human Relations
170(Commission). On July 23, 2004, the Commission issued a "no
180cause" determination. Petitioner requested an administrative
186hearing, and the Commission referred the matter to DOAH to
196conduct the hearing.
199A t the hearing, Petitioner testified, called six other
208witnesses, and submitted six exhibits for admission into
216evidence. Respondent called no witnesses and submitted two
224exhibits for admission into evidence. The ALJ took direct
233testimony from Petitioner and admitted ALJ exhibit into
241evidence.
242The identity of the witnesses and exhibits, and any rulings
252regarding each, are reported in the record of the hearing. The
263one - volume Transcript of the hearing was filed on December 6,
2752004. The parties timely filed their respective proposed
283recommended orders on December 16, 2004.
289FINDINGS OF FACT
2921. Petitioner is a handicapped person. Petitioner is
300bipolar and has episodes of psychosis and occasional ideations
309of suicide and homicide.
3132. On Ja nuary 14, 2003, Petitioner returned to work after
324an extended vacation, during which he suffered a psychotic
333episode and was diagnosed with his handicap. Respondent
341scheduled an in - office hearing, identified in the record as a
"353fit - for - duty hearing," beca use Respondent was concerned for the
366safety of Petitioner and other employees. Respondent denied
374Petitioner's request to postpone the hearing for one day to
384allow Petitioner to get back into "the swing of work routine."
3953. Petitioner requested 30 d ays of accrued personal leave.
405Respondent granted the request, and Petitioner was due back on
415the job on February 18, 2003.
4214. At the conclusion of the 30 - day leave, Respondent
432granted Petitioner's request for medical leave. The medical
440leave beg an on February 18, 2003, and Petitioner was scheduled
451to return to work on July 3, 2004.
4595. Respondent's policy requires every employee that is on
468medical leave, including Petitioner, to be certified by a
477physician that the employee is fit to return to work, with or
489without reasonable accommodation. A physician's certification
495is a prerequisite for any employee on medical leave to return to
507his or her job after medical leave.
5146. During Petitioner's medical leave, Petitioner sought
521treatment fro m several physicians. As of the date of the
532administrative hearing, no doctor had certified Petitioner as
540fit to return to work because Petitioner consistently refused to
550take medication prescribed for his handicap.
5567. After going on medical leave, Petitioner received
564short - term disability benefits and, at the time of the
575administrative hearing, was receiving long - term disability
583benefits. The long - term benefits were scheduled to expire in
594August 2005. Petitioner is not contractually entitled to lo ng -
605term disability benefits unless Petitioner is unable to perform
614all of the material and substantial duties of his regular
624occupation.
6258. When Petitioner's medical leave ended on July 3, 2004,
635Petitioner was not medically certified as fit to return to work.
646Petitioner refused to take medication prescribed for his
654condition and continued to receive long - term disability
663benefits.
6649. Respondent refused to accommodate Petitioner any
671further with additional leave. Respondent terminated
677Petitioner 's employment on July 3, 2004.
684CONCLUSIONS OF LAW
68710. DOAH has no jurisdiction over Petitioner's claim for
696relief under Section 448.045, Florida Statutes (2002).
703§ 448.103, Fla. Stat. (2002). However, DOAH has jurisdiction
712over the parties and the subj ect matter of Petitioner's claim
723for relief under Chapter 760, Florida Statutes (2002).
731§§ 120.569 and 120.57(1), Fla. Stat. (2004). The parties
740received adequate notice of the administrative hearing.
74711. Federal discrimination law may be used for guid ance in
758evaluating the merits of claims arising under Chapter 760,
767Florida Statutes (2002). Florida courts construe disability
774discrimination actions under the Florida Civil Rights Act in
783conformity with the Americans with Disabilities Act of 1990
792(ADA), 42 U.S.C. Section 12111(8), as interpreted by federal
801courts. Wimberly v. Securities Technology Group, Inc . , 866 So.
8112d 146 (Fla. 4th DCA 2004); Tourville v. Securex, Inc. , 769
822So. 2d 491 n.1 (Fla. 4th DCA 2000); Greene v. Seminole Electric
834Co - op., Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997).
84612. The general rule describing the burden of proof in
856discrimination cases involving circumstantial evidence was first
863enunciated in McDonnell Douglas Corp. v. Green , 411 U.S. 792,
873802 - 803 (1973). However, the charge of discrimination in
883McDonnell Douglas involved an alleged violation of Title VII of
893the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e through
9042000e - 17, (Title VII), rather than an alleged violation of the
916ADA.
91713. Unlike Title VII discrimination c ases in which race or
928sex are rarely admitted as motives for adverse employment
937actions, employers, including Respondent, generally admit that
944they take adverse employment actions against handicapped persons
952such as Petitioner solely as a result of the han dicap. Brand v.
965Florida Power Corp. , 633 So. 2d 504, 508 (Fla. 1st DCA 1994).
977Although the Title VII criteria utilized by the court in
987McDonnell Douglas are, as a practical matter, inapplicable to
996handicap discrimination cases under the ADA, the shifting burden
1005of proof utilized in McDonnell Douglas is applicable to handicap
1015discrimination cases such as this proceeding. Brand , 633 So. 2d
1025at 509 - 510.
102914. In order for Petitioner to make a prima facie case of
1041disability discrimination under the ADA, Petiti oner must show by
1051a preponderance of the evidence that he is a handicapped person,
1062he is a qualified employee, Respondent took an adverse
1071employment action against Petitioner solely because of the
1079handicap, and Respondent had knowledge of the disability or
1088considered Petitioner to be disabled. Gordon v. E.L. Hamm &
1098Associates , 100 F.3d 907, 910 (11th Cir. 1996). It is
1108undisputed that Petitioner is a handicapped person, Respondent
1116took adverse employment actions against Petitioner solely
1123because of Petitio ner's handicap, and Respondent had actual
1132knowledge of Petitioner's handicap.
113615. Petitioner did not show that he was a qualified
1146employee. Petitioner did not show that, at the time of the
1157adverse employment actions, Petitioner could perform the
1164essentia l functions of his job, with or without reasonable
1174accommodations, within the meaning of 42 U.S.C. Section
118212112(a). Compare Wood v. Green , 323 F.3d 1309, 1312 (11th Cir.
11932003) and Cramer v. Florida , 117 F.3d 1258, 1264 (11th Cir.
12041997) (each stating the cited definition of a qualified employee
1214under the ADA) with Brand , 633 So. 2d at 510 (defining a
1226qualified employee under Title V of the Rehabilitation Act of
12361973, 29 U.S.C. Section 791, to be an individual that is
1247qualified for a position "apart from hi s or her handicap").
125916. Petitioner was not a qualified employee because there
1268was a genuine, substantial risk that Petitioner could injure
1277himself or others, and there was no evidence that Respondent
1287could modify the job to eliminate the risk. See Bran d , 633
1299So. 2d at 509 (citing Chiari v. City of League City , 920 F.2d
1312311, 317 (5th Cir. 1991) for the cited factual test of a
1324qualified employee). Petitioner's diagnosis included episodes
1330of psychosis and occasional ideations of suicide and homicide.
1339The diagnosis created a reasonable basis for Respondent to
1348conclude that Petitioner presented a genuine, substantial risk
1356of injury to Petitioner or other workers.
136317. Respondent attempted to verify Petitioner's fitness
1370for employment to ensure the safety of Petitioner and other
1380employees. An employer may inquire as to the ability of an
1391employee to perform the essential functions of the job,
1400including a medical examination of an employee that is job -
1411related and consistent with a business necessity. See 29 C.F.R.
1421§ 1630.14(c).
142318. Petitioner elected to take personal leave followed by
1432medical leave. Petitioner refused to take the medication needed
1441to render him fit to perform his job. No physician would
1452certify Petitioner as fit to perform his job in th e absence of
1465the requisite medication, and Petitioner applied for and
1473received long - term disability benefits.
147919. Petitioner's claim that he is a qualified employee
1488presents an apparent contradiction with the claim of total
1497disability that Petitioner made in order to receive disability
1506benefits. See Cleveland v. Policy Management Systems
1513Corporation , 526 U.S. 795, 805 - 806, 119 S. Ct. 1597,
1524143 L. Ed. 2d 966 (1999)(holding that a claim of total
1535disability in an application for Social Security benefits
1543pre sents an "apparent contradiction" with a claim that the
1553applicant is a qualified employee under the ADA). Petitioner
1562bears the burden of submitting evidence that explains the
1571apparent contradiction. Cleveland , 526 U.S. at 806. Petitioner
1579did not explain the apparent contradiction. Rather, Petitioner
1587confirmed that he continued to refuse to take his medication and
1598continued to receive long - term disability benefits based on an
1609admission of total disability.
161320. An employee that admits he is totally disab led is not
1625a qualified employee. See Cramer , 117 F.3d at 1264 (holding
1635that plaintiffs who admitted disability for purposes of the
1644worker's compensation law in Florida were not qualified
1652employees, within the meaning of the ADA, who were able to
1663perform t heir job duties with or without accommodation). At the
1674time of the hearing, Petitioner was totally disabled, received
1683disability benefits, failed to explain the apparent conflict
1691between the receipt of disability benefits and the claim that he
1702was a quali fied employee, and refused to take the medication
1713necessary for medical certification that he was fit to perform
1723his job duties.
172621. Respondent provided reasonable accommodations to
1732Petitioner to allow Petitioner to seek medical treatment and
1741titrate his medication. Respondent granted personal and medical
1749leave to Petitioner that exceeded 16 months. Petitioner
1757consistently refused to take his medication through the date of
1767the administrative hearing.
177022. Nothing in the term "reasonable accommodation"
1777re quires Respondent to wait for an indefinite period for an
1788accommodation to have its intended effect. Rather, the term
1797must be construed to mean an accommodation that presently, or in
1808the immediate future, enables Petitioner to perform the
1816essential functi ons of his job. Wood , 323 F.3d at 1313 - 1314.
182923. At the time of the hearing, Petitioner had refused
1839medication for over two years. The concept of reasonable
1848accommodation does not require Respondent to wait indefinitely
1856until Petitioner titrates his m edication. Nor does the
1865definition of a qualified employee require Respondent to
1873reinstate Petitioner in his former position at a time that
1883Petitioner's diagnosis presents a genuine, significant threat of
1891harm to himself or other employees.
1897RECOMMENDATI ON
1899Based on the foregoing Findings of Facts and Conclusions of
1909Law, it is
1912RECOMMENDED that the Commission enter a final order finding
1921that Respondent did not unlawfully discriminate against
1928Petitioner by convening a "fit - for - duty hearing" or by
1940subseque ntly terminating Petitioner's employment.
1945DONE AND ENTERED this 21st day of December, 2004, in
1955Tallahassee, Leon County, Florida.
1959S
1960DANIEL MANRY
1962Administrative Law Judge
1965Division of Administrative Hearings
1969The DeSoto Buil ding
19731230 Apalachee Parkway
1976Tallahassee, Florida 32399 - 3060
1981(850) 488 - 9675 SUNCOM 278 - 9675
1989Fax Filing (850) 921 - 6847
1995www.doah.state.fl.us
1996Filed with the Clerk of the
2002Division of Administrative Hearings
2006this 21st day of December, 2004.
2012COPIES FURNISHE D :
2016Denise Crawford, Agency Clerk
2020Florida Commission on Human Relations
20252009 Apalachee Parkway, Suite 100
2030Tallahassee, Florida 32301
2033Norman K. Wright
2036826 Grand Cayman Court
2040Orlando, Florida 32835
2043J. Lester Kaney, Esquire
2047Cobb & Cole
2050150 Magnolia Avenue
2053Post Office Box 2491
2057Daytona Beach, Florida 32115 - 2491
2063Cecil Howard, General Counsel
2067Florida Commission on Human Relations
20722009 Apalachee Parkway, Suite 100
2077Tallahassee, Florida 32301
2080NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2086All parties have the right t o submit written exceptions within
209715 days from the date of this Recommended Order. Any exceptions
2108to this Recommended Order should be filed with the agency that
2119will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 12/21/2004
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 10/27/2004
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 10/25/2004
- Proceedings: Letter to Judge Manry from N. Wright regarding the scheduled hearing (filed via facsimile).
- Date: 10/20/2004
- Proceedings: Evidence Addendum for Norman K. Wright filed.
- Date: 10/20/2004
- Proceedings: Evidence Exhibits for DOAH Case No. 04-3126; Supplemental Evidence Addendum for Norman K. Wright filed.
-
PDF:
- Date: 10/15/2004
- Proceedings: Letter to Judge Manry from N. Wright regarding failure to make a pre-trial settlement filed.
-
PDF:
- Date: 10/07/2004
- Proceedings: Letter to Judge Manry from N. Wright enclosing copies of exhibits, witness list, and Notice of Reciept filed.
- Date: 10/04/2004
- Proceedings: Order of Continuance.
-
PDF:
- Date: 09/24/2004
- Proceedings: Letter to American Court Reporting from D. Crawford confirming the request for Court Reporter services filed.
-
PDF:
- Date: 09/21/2004
- Proceedings: Notice of Hearing (hearing set for October 27, 2004; 9:30 a.m.; Orlando, FL).
-
PDF:
- Date: 09/17/2004
- Proceedings: Notice of Appearance (filed by J. Kaney, Esquire, via facsimile).
-
PDF:
- Date: 09/17/2004
- Proceedings: Letter to DOAH from J. Kaney in reply to Initial Order (filed via facsimile).
-
PDF:
- Date: 09/13/2004
- Proceedings: Letter to Judge Manry from N. Wright (response to Initial Order) filed.
Case Information
- Judge:
- DANIEL MANRY
- Date Filed:
- 09/02/2004
- Date Assignment:
- 09/02/2004
- Last Docket Entry:
- 03/10/2005
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
J. Lester Kaney, Esquire
Address of Record -
Norman K Wright
Address of Record