04-003126 Norman K. Wright vs. Universal City Development Partners D/B/A Universal Orlando Status: Closed Recommended Order on Tuesday, December 21, 2004.

Summary: Respondent terminiated Petitioner, who is handicapped, and did not unlawfully discriminate against him, because he had suicidal and homicidal ideations and was not qualified. Respondent accommodated Petitioner for 16 months prior to termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN K. WRIGHT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3126

)

UNIVERSAL CITY DEVELOPMENT )

PARTNERS, d/b/a UNIVERSAL )

ORLANDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on behalf of the

Division of Administrative Hearings (DOAH) on October 27, 2004,

in Orlando, Florida.

APPEARANCES

For P etitioner: Norman K. Wright, pro se

826 Grand Cayman Court

Orlando, Florida 32835

For Respondent: J. Lester Kaney, Esquire

Cobb & Cole

150 Magnolia Avenue

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether

Respondent discriminated against Petitioner on the basis of a

handicap , within the meaning of Section 760.10, Florida Statutes

(2002), and whether the same alleged discrimination violated

Section 448.045, Florida Statutes (2002).

PRELIMINARY STATEMENT

On August 11, 2003, Petitioner filed a complaint of

discrimination with the Florida Commission on Human Relations

(Commission). On July 23, 2004, the Commission issued a "no

cause" determination. Petitioner requested an administrative

hearing, and the Commission referred the matter to DOAH to

conduct the hearing.

A t the hearing, Petitioner testified, called six other

witnesses, and submitted six exhibits for admission into

evidence. Respondent called no witnesses and submitted two

exhibits for admission into evidence. The ALJ took direct

testimony from Petitioner and admitted ALJ exhibit into

evidence.

The identity of the witnesses and exhibits, and any rulings

regarding each, are reported in the record of the hearing. The

one - volume Transcript of the hearing was filed on December 6,

2004. The parties timely filed their respective proposed

recommended orders on December 16, 2004.

FINDINGS OF FACT

1. Petitioner is a handicapped person. Petitioner is

bipolar and has episodes of psychosis and occasional ideations

of suicide and homicide.

2. On Ja nuary 14, 2003, Petitioner returned to work after

an extended vacation, during which he suffered a psychotic

episode and was diagnosed with his handicap. Respondent

scheduled an in - office hearing, identified in the record as a

"fit - for - duty hearing," beca use Respondent was concerned for the

safety of Petitioner and other employees. Respondent denied

Petitioner's request to postpone the hearing for one day to

allow Petitioner to get back into "the swing of work routine."

3. Petitioner requested 30 d ays of accrued personal leave.

Respondent granted the request, and Petitioner was due back on

the job on February 18, 2003.

4. At the conclusion of the 30 - day leave, Respondent

granted Petitioner's request for medical leave. The medical

leave beg an on February 18, 2003, and Petitioner was scheduled

to return to work on July 3, 2004.

5. Respondent's policy requires every employee that is on

medical leave, including Petitioner, to be certified by a

physician that the employee is fit to return to work, with or

without reasonable accommodation. A physician's certification

is a prerequisite for any employee on medical leave to return to

his or her job after medical leave.

6. During Petitioner's medical leave, Petitioner sought

treatment fro m several physicians. As of the date of the

administrative hearing, no doctor had certified Petitioner as

fit to return to work because Petitioner consistently refused to

take medication prescribed for his handicap.

7. After going on medical leave, Petitioner received

short - term disability benefits and, at the time of the

administrative hearing, was receiving long - term disability

benefits. The long - term benefits were scheduled to expire in

August 2005. Petitioner is not contractually entitled to lo ng -

term disability benefits unless Petitioner is unable to perform

all of the material and substantial duties of his regular

occupation.

8. When Petitioner's medical leave ended on July 3, 2004,

Petitioner was not medically certified as fit to return to work.

Petitioner refused to take medication prescribed for his

condition and continued to receive long - term disability

benefits.

9. Respondent refused to accommodate Petitioner any

further with additional leave. Respondent terminated

Petitioner 's employment on July 3, 2004.

CONCLUSIONS OF LAW

10. DOAH has no jurisdiction over Petitioner's claim for

relief under Section 448.045, Florida Statutes (2002).

§ 448.103, Fla. Stat. (2002). However, DOAH has jurisdiction

over the parties and the subj ect matter of Petitioner's claim

for relief under Chapter 760, Florida Statutes (2002).

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

received adequate notice of the administrative hearing.

11. Federal discrimination law may be used for guid ance in

evaluating the merits of claims arising under Chapter 760,

Florida Statutes (2002). Florida courts construe disability

discrimination actions under the Florida Civil Rights Act in

conformity with the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. Section 12111(8), as interpreted by federal

courts. Wimberly v. Securities Technology Group, Inc . , 866 So.

2d 146 (Fla. 4th DCA 2004); Tourville v. Securex, Inc. , 769

So. 2d 491 n.1 (Fla. 4th DCA 2000); Greene v. Seminole Electric

Co - op., Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997).

12. The general rule describing the burden of proof in

discrimination cases involving circumstantial evidence was first

enunciated in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973). However, the charge of discrimination in

McDonnell Douglas involved an alleged violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e through

2000e - 17, (Title VII), rather than an alleged violation of the

ADA.

13. Unlike Title VII discrimination c ases in which race or

sex are rarely admitted as motives for adverse employment

actions, employers, including Respondent, generally admit that

they take adverse employment actions against handicapped persons

such as Petitioner solely as a result of the han dicap. Brand v.

Florida Power Corp. , 633 So. 2d 504, 508 (Fla. 1st DCA 1994).

Although the Title VII criteria utilized by the court in

McDonnell Douglas are, as a practical matter, inapplicable to

handicap discrimination cases under the ADA, the shifting burden

of proof utilized in McDonnell Douglas is applicable to handicap

discrimination cases such as this proceeding. Brand , 633 So. 2d

at 509 - 510.

14. In order for Petitioner to make a prima facie case of

disability discrimination under the ADA, Petiti oner must show by

a preponderance of the evidence that he is a handicapped person,

he is a qualified employee, Respondent took an adverse

employment action against Petitioner solely because of the

handicap, and Respondent had knowledge of the disability or

considered Petitioner to be disabled. Gordon v. E.L. Hamm &

Associates , 100 F.3d 907, 910 (11th Cir. 1996). It is

undisputed that Petitioner is a handicapped person, Respondent

took adverse employment actions against Petitioner solely

because of Petitio ner's handicap, and Respondent had actual

knowledge of Petitioner's handicap.

15. Petitioner did not show that he was a qualified

employee. Petitioner did not show that, at the time of the

adverse employment actions, Petitioner could perform the

essentia l functions of his job, with or without reasonable

accommodations, within the meaning of 42 U.S.C. Section

12112(a). Compare Wood v. Green , 323 F.3d 1309, 1312 (11th Cir.

2003) and Cramer v. Florida , 117 F.3d 1258, 1264 (11th Cir.

1997) (each stating the cited definition of a qualified employee

under the ADA) with Brand , 633 So. 2d at 510 (defining a

qualified employee under Title V of the Rehabilitation Act of

1973, 29 U.S.C. Section 791, to be an individual that is

qualified for a position "apart from hi s or her handicap").

16. Petitioner was not a qualified employee because there

was a genuine, substantial risk that Petitioner could injure

himself or others, and there was no evidence that Respondent

could modify the job to eliminate the risk. See Bran d , 633

So. 2d at 509 (citing Chiari v. City of League City , 920 F.2d

311, 317 (5th Cir. 1991) for the cited factual test of a

qualified employee). Petitioner's diagnosis included episodes

of psychosis and occasional ideations of suicide and homicide.

The diagnosis created a reasonable basis for Respondent to

conclude that Petitioner presented a genuine, substantial risk

of injury to Petitioner or other workers.

17. Respondent attempted to verify Petitioner's fitness

for employment to ensure the safety of Petitioner and other

employees. An employer may inquire as to the ability of an

employee to perform the essential functions of the job,

including a medical examination of an employee that is job -

related and consistent with a business necessity. See 29 C.F.R.

§ 1630.14(c).

18. Petitioner elected to take personal leave followed by

medical leave. Petitioner refused to take the medication needed

to render him fit to perform his job. No physician would

certify Petitioner as fit to perform his job in th e absence of

the requisite medication, and Petitioner applied for and

received long - term disability benefits.

19. Petitioner's claim that he is a qualified employee

presents an apparent contradiction with the claim of total

disability that Petitioner made in order to receive disability

benefits. See Cleveland v. Policy Management Systems

Corporation , 526 U.S. 795, 805 - 806, 119 S. Ct. 1597,

143 L. Ed. 2d 966 (1999)(holding that a claim of total

disability in an application for Social Security benefits

pre sents an "apparent contradiction" with a claim that the

applicant is a qualified employee under the ADA). Petitioner

bears the burden of submitting evidence that explains the

apparent contradiction. Cleveland , 526 U.S. at 806. Petitioner

did not explain the apparent contradiction. Rather, Petitioner

confirmed that he continued to refuse to take his medication and

continued to receive long - term disability benefits based on an

admission of total disability.

20. An employee that admits he is totally disab led is not

a qualified employee. See Cramer , 117 F.3d at 1264 (holding

that plaintiffs who admitted disability for purposes of the

worker's compensation law in Florida were not qualified

employees, within the meaning of the ADA, who were able to

perform t heir job duties with or without accommodation). At the

time of the hearing, Petitioner was totally disabled, received

disability benefits, failed to explain the apparent conflict

between the receipt of disability benefits and the claim that he

was a quali fied employee, and refused to take the medication

necessary for medical certification that he was fit to perform

his job duties.

21. Respondent provided reasonable accommodations to

Petitioner to allow Petitioner to seek medical treatment and

titrate his medication. Respondent granted personal and medical

leave to Petitioner that exceeded 16 months. Petitioner

consistently refused to take his medication through the date of

the administrative hearing.

22. Nothing in the term "reasonable accommodation"

re quires Respondent to wait for an indefinite period for an

accommodation to have its intended effect. Rather, the term

must be construed to mean an accommodation that presently, or in

the immediate future, enables Petitioner to perform the

essential functi ons of his job. Wood , 323 F.3d at 1313 - 1314.

23. At the time of the hearing, Petitioner had refused

medication for over two years. The concept of reasonable

accommodation does not require Respondent to wait indefinitely

until Petitioner titrates his m edication. Nor does the

definition of a qualified employee require Respondent to

reinstate Petitioner in his former position at a time that

Petitioner's diagnosis presents a genuine, significant threat of

harm to himself or other employees.

RECOMMENDATI ON

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

that Respondent did not unlawfully discriminate against

Petitioner by convening a "fit - for - duty hearing" or by

subseque ntly terminating Petitioner's employment.

DONE AND ENTERED this 21st day of December, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 21st day of December, 2004.

COPIES FURNISHE D :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Norman K. Wright

826 Grand Cayman Court

Orlando, Florida 32835

J. Lester Kaney, Esquire

Cobb & Cole

150 Magnolia Avenue

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

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.