04-004028 Horace Brown, Jr. vs. Department Of Corrections Status: Closed Recommended Order on Monday, May 9, 2005.

Summary: Petitioner, who had reached Maximum Medical Improvement on his workers` compensation claim, was so physically impaired as to be unable to perform the essential functions of his job and was unable to make a prima facie case of handicap discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORACE BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 04 - 4028

)

DEPARTMENT OF CORRECTIONS, )

)

R espondent. )

)

RECOMMENDED ORDER

Upon due noti ce, a disputed - fact hearing was conducted in

this case on March 29, 2005 , in Tallahassee, Florida, before

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

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Horace Brown, Jr., pro se

2012 Bradley Avenue

Valdosta, Georgia 31602

For Respondent: Mark Simpson, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent employer is guilty of an unlawful

employment practice, to wit: failure to accommodate

Petitioner's handicap and termination of Petitioner , on the

basis of handicap discrimination.

PRELIMINARY STATEMENT

On or about May 24, 2004, Petitioner filed a Charge of

Discrimi nation with the Florida Commission on Human Relations

(FCHR) , alleging that Respondent, Department of Corrections ,

discriminated against him on the basis of handicap . On

October 5, 2004, FCHR entered a Determination: No Cause.

Petitioner timely - filed a Petition for Relief with FCHR on

November 1, 2004. On or about November 5, 2004, the cause was

referred to the Division of Administrative Hearings. Petitioner

included an American s With Disabilities Act (ADA) claim within

his Petition . Although cases de cided under ADA may be

instructive in Federal Title VII and State Chapter 760, Florida

Statutes cases , the Division is without jurisdiction to

entertain an ADA claim , or any other claim outside Chapter 760,

Florida Statutes , and Petitioner was orally infor med of this .

At the hearing on March 29, 2005, Petitioner presented the

oral testimony of Brenda Brown and testified on his own behalf.

Petitioner's Exhibits one, three, five, six, and eight were

admitted in evidence. Respondent presented the oral testi mony

of Martie Taylor. Respondent's Exhibits one and two were

admitted in evidence.

Official recognition was taken of two reported cases, one

of which included the entire reported history of Brown v.

Department of Corrections , PERC Case CS - 2003 - 351 at 19 FCSR 9 ,

in which Petitioner and Respondent were both involved, and in

which they litigated some of the same issues as they have

litigated in this case .

No transcript was provided.

Both parties filed Propose d Recommended Orders, which have

been considere d in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an adult African - American male. After

ret iring from the United States Army with an excellent

reputation , Petitioner was hired by Respondent Department of

Corrections. When Re spondent hired Petitioner it was aware he

had a 10 percent physical impairment , as assigned by the

Veterans ' Administration (VA).

2. Petitioner completed 512 hours of training and was

certified as a Correctional Officer, pursuant to the Florida

Statutes. At all times material, he was a "vested" S tate career

service employee.

3. Petitioner sustained an on - the - job injury on

February 11, 2003 , while employed by Respondent . Apparently,

Petitioner was adequately performing his job duties up through

the dat e of his injury. Respondent E mployer provided workers'

compensation and medical benefits as required by Chapter 440,

Florida Statutes . These benefits were monitored by the State

Risk Management Office within the Department of Insurance.

4. The E mployer instructed Petitioner not to return to

work until he was medically released to return to work.

5. Petitioner's injury was a torn medial meniscus (knee

joint injury). He underwent collagen injections and lengthy

physical therapy , but no surgery. His tr eating physician was

Dr. Aguero .

6. On July 21, 2003, Petitioner underwent a Functional

Capacity Evaluation by a physical therapist . The report of this

evaluation was typed up two days later and showed, in pertinent

part , that:

Mr. Brown demonstrated th e capacity to

sustain work tasks in the light strength

category of physical demands. His . . .

previous job was corrections officer. That

job is estimated to be in the medium

strength category. Known job duties of

concern or particular relevance include :

ability to move rapidly and to perform take -

down and restraint procedures.

7. Risk Management employees urged the treating physician

to release Petitioner to return to work.

8. On July 30, 2003, Dr. Aguero released Petitioner to

return to work on l ight duty, with restrictions on standing,

walking, and lifting.

9. Presumably, Dr. Aguero believed Petitioner would be

reassigned by the employer to appropriate light duty work until

he reached maximum medical improvement from his knee injury .

10. The Employer Department of Corrections, in fact, did

assign Petitioner to "alternate duty" work when he returned to

the correctional institution on or about July 30, 2003 .

Petitioner worked in the mail room for approximately three weeks

thereafter .

11. As o f July 30, 2003, i n addition to his 10 percent

rating of permanent partial disability from the VA, Petitioner

had gained a great deal of weight due to inactivity during the

post - knee injury period . He also suffered from arthritis.

12. On or about August 18, 2003, Dr. Ag u ero filled out a

Workers' Compensation Maximum Medical Improve ment (MMI) Form ,

designating that Petitioner had improved from his on - the - job

injury as much as could be reasonably medically expected. As of

that date , Dr. Ag u ero assign ed hi m an additional two percent

permanent partial disability rating, due to his on - the - job

accident. The two percent rating carried continued work

restrictions.

13. Dr. Aguero provided t he results of Petitioner's

July 21, 2003, F unctional C apacity T est scor e to the Employer

( see Finding of Fact 6) attached to his MMI rating.

14 . Dr. Ag u ero's employment restrictions for Petitioner ,

post - MMI , as stated on the official MMI F orm , say "See FCE,"

meaning that Dr. Aguero had adopted , as his restrictions on

Peti tioner, the functional abilities described in the July 2 1 ,

2003, Functional Capacity Evaluation Report . This meant that

Petitioner was found by the physical therapist testing him to be

unable to do these tasks on July 21, 2003, and the medical

physician w as saying for July 30, 2003, that Petitioner had

achieved all the improvement he was going to achieve from the

knee injury and he should not be required to do these activities

on the job because he could not do them and trying to do them

could be harmful t o him. These restrictions includ ed no

extended periods of standing/walking, no balancing, and no

significant lifting . Also, Petitioner was listed as being

unable to lift 50 pounds , routinely.

1 5 . Essential F unction A - 4 of the E ssential F unctions of a

C o rrectional O fficer, which the Department of Corrections has

adopted as its minimum standards for employment as a

C orrectional O fficer, requires that a C orrectional O fficer be

able to:

Sit, walk, and stand for prolonged periods

of time; stoop, squat, kneel, bend, run, and

lift approximately 50 pounds on a routine

basis.

16. Within a day of receiving the MMI package ,

Petitioner's highest superior, the Warden, sent Petitioner home.

Petitioner was subsequently provided a Predetermination

Conference and a di smissal letter.

17. Petitioner claimed to have begged to stay on in

alternate duty positions, but neither he nor any of his local

supervisors reported these requests for light duty or other

accommodation of his permanent condition to the Employer's

Ameri cans With Disabilities Act Coordinator , Martie Taylor. It

was not necessary under Chapter 760, Florida Statutes, for

Petitioner to do more than ask his supervisors for an

accommodation , but Ms. Taylor testified that even if

Petitioner's supervisors had pr operly relayed his requests for

accommodation to her , she knew of no way the Employer could have

accommodate d Petitioner's lifting restrictions .

18. Petitioner related that supervisors made comments to

him that they needed a fully functional "soldier in the field"

and that his obesity and inability to run and subdue prisoners

rendered him not fully functional as a correctional officer.

19 . Petitioner believes that his large size is an asset in

commanding and subduing inmates but that Res pondent is

prejud iced against his size .

20 . Petitioner testified that he knew of insulin - dependent

diabetics and of other obese correctional officers who did very

well at regular employment with the Employer and that he knew of

other correctional officers whom the Employ er had permitted to

stay employed at light du t y longer than he had been allowed to

stay on light duty . However, Petitioner had no knowledge of

whether the se employees had reached MMI or of wh ich essential

requirements of the job of Correctional Officer th ey were able ,

or unable , to perform while they were on light duty .

21. In fact, the D epartment of Correction 's P rocedure

208.10 , covering " C areer service employee ' s right to alternate

duty assignments ," reads, in pertinent part:

SPECIFIC PROCEDURES

(1) COORDINATION OF ALTE RNATE DUTY : . . .

* * *

(c) The department does not have

specific alternate duty positions. The

employee will remain in her/his current

position while performing alternate duties.

* * *

(i) Certified Officers :

1. Individuals employed in a

certified officer's position must be

prepared and able at all times to perform

the essential functions of his/her position.

2. If approved for alternate

duty, an employee in a certified officer's

position will be te mporarily assigned to

non - certified officer duties for the period

of time during which the employee is

determined by the Division of Risk

Management to have a temporary partial

disability.

* * *

(8) MAXIMUM MEDICAL IMPR OVEMENT

(c) When maximum me dical improvement

has been determined by the treating physical

and information has been provided to the

Division of Risk Management, the employee

will be reassigned the duties and

responsibilities of her/his regular position

unless the employee cannot perf orm the

essential functions of the position. In no

way will the employee be allowed to continue

to perform alternate duties once the maximum

medical improvement has been determined by

the Division of Risk Management . (Emphasis

supplied)

22. Petitioner pursued his employment rights before the

Public Employees Relations Commission (PERC) . PERC 's Final

Order (January 8, 2004) on this matter determined as a factual

finding that Petitioner could not perform the essential duties

of a correction al officer an d accepted the hearing officer's

findings of fact. Brown v. Dept. of Corrections , 19 FCSR 9

(2004). More specifically, the PERC hearing officer found that

"Brown received maximum medical improvement on July 30, 2003,

with a two percent impairment , " and t hat "the doctor indicated

on the evaluation that Brown has work restrictions and he cannot

perform the standing and walking requirements of a correctional

officer." At hearing, Brown indicated that he cannot perform

the duties of a correctional officer . . . . He also stated

that he cannot run . . . . In sum, the Agency demonstrated that

it is undisputed that Brown cannot perform the essential duties

of a correctional officer." Since there were no appeals, the

findings of fact of the PERC hearing office r between the same

two parties are res judicata ; are presumed correct , and are

binding herein as a matter of law. Some findings also

constituted admissions of Petitioner.

23. Loss of employment has been very hard on Petitioner

and his family.

24. On S eptember 11, 2003, Petitioner applied for a

disabled person license plate, reciting that he was so

ambulatory disabled that he could not walk 200 feet without

stopping to rest , and that he is severely limited in his walk

due to an arthritic, neurological, or orthopedic condition. His

treating physician signed t his application , attesting to

Petitioner's listed conditions.

25. Petitioner's A nswers to Respondent's Request s for

Admission in the instant case concedes that he can perform jobs

other than those of a correctional officer.

26. Petitioner's testimony at hearing was to the effect

that he still cannot perform all the duties of a correctional

officer.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the parties a nd subject matter of this cause,

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

Statutes.

28. While PERC 's findings of fact are binding here, the

c onclusions of l aw are not binding , because the legal issues and

statutes under consideration are d ifferent.

2 9 . In order to prove a prima facie case of employment

discrimination on the basis of "handicap," pursuant to Chapter

760, Florida Statutes, Petitioner must establish (1) that he has

a disability; (2) that he is a "qualified individual," which is

to say, that he is able to perform the essential functions of

the employment position he holds or seeks , with or without

reasonable accommodation; and (3) that the employer unlawfully

discriminated against him because of his disability. Hilburn v.

Mur a t a Electronics North America, Inc. , 181 F.3d 1220 (11th Cir.

1999); Gordon v. E.L. Hannin & Assoc., Inc. , 100 F.3d 907 (11th

Cir. 1999).

30 . Petitioner submits that he should be entitled to

reasonable accommodation of his handicap, but each of the

"accom modations" he has proposed result s in his never having to

perform the essential functions of a correctional officer. This

is per se an unreasonable request. The difference between this

case and many others is that Petitioner has reached MMI and

employers are not required to eliminate essential functions of a

job description indefinitely. See Rio v. Runyan , 972 F. Supp.

1446 (S.D. Fla. 1997).

31 . Petitioner has not met th e prima facie standard , and

his case must be dismissed.

3 2 . Respondent's Proposed Recommended Order contains

unnecessarily harsh language against Petitioner, personally, and

against Petitioner's motives. It prays for attorney's fees upon

grounds that the case lack ed "foundation," from its inception ,

and claims that fees will deter sim ilar suits . Such fees may

only be awarded by the Commission , and the undersigned

recommends against such an award.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED: that the Florida Commission on Human Rel ations

enter a final order dismissing the Petition for R elief and the

Charge of Discrimination herein , and awarding no attorney's fees

or costs to Respondent.

DONE AND ENTERED this 9th day of May , 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 9th day of May , 2005.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Cra wford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Horace Brown, Jr.

2012 Bradley Avenue

Valdosta, Georgia 31602

Mark Simpson, Esquire

Department of Corrections

2601 Blair Stone Road

T allahassee, Florida 32399

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 be filed with the agency tha t

will issue the final order in this case.