04-004315 Beulah M. Johnson vs. Alachua County Sheriff`s Office Status: Closed Recommended Order on Friday, September 30, 2005.

Summary: Petitioner is not disabled as contemplated by law and did not establish a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEULAH M. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4315

)

ALACHUA COUNTY SHERIFF'S OFFICE )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing w as held, pursuant to notice, on June 7, 2005, in

Gainesville, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Beulah M. Johnson, pro se

Post Office Box 1372

Bunnell, Florida 32110

For Respondent: Linda G. Bond, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on March 18, 2004. 1 /

PRELIMINARY STA TEMENT

On March 18, 2004, Petitioner, Beulah M. Johnson, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) , which alleged that the Alachua County

Sheriff's Office violated Section 760.10, Florida Statutes, by

discrimina ting against her on the basis of race, disability, and

religion.

The allegations were investigated and on October 28, 2004,

FCHR issued its determination of "no cause" and Notice of

Determination: No Cause.

A Petition for Relief was filed by Petitioner on

November 29, 2004. The Petition for Relief does not reference

race or religion , but only references allegations of

discrimination on the basis of disability. FCHR transmitted the

case to the Division of Administrative Hearings (Division) on or

about D ecember 1, 2004. A Notice of Hearing was issued setting

the case for formal hearing on April 7, 2005. On March 14,

2005, Petitioner filed an unopposed request for continuance ,

which was granted. The hearing was rescheduled for June 7,

2005. The hearing took place as scheduled.

At hearing, Petitioner presented the testimony of Laurie

Brink, Carmen Belcher, Patricia Brannon, Doris Legree, Michael

Thomas, and testified on her own behalf. Petitioner did not

offer any exhibits into evidence. Respondent pre sented the

testimony of Louise Grimm, Sheriff Stephen Oelrich, and the

deposition testimony of Sherry Larson. Respondent offered

Exhibits numbered 1 , 2, 4 through 7 , and 10 through 13, which

were admitted into evidence.

A Transcript consisting of one volume was filed on June 23,

2005. On July 20, 2005, Respondent filed a Motion to Extend

Time for filing Proposed Recommended Orders. The motion was

granted. On August 28, 2005, Petitioner filed a request for an

extension of time in which to file propos ed recommended orders,

which was granted. The parties timely filed Proposed

Recommended Orders which have been considered in the preparation

of this Recommended Order. 2/

FINDINGS OF FACT

1. Petitioner is an African - American female who began

employment wi th the Alachua County Sheriff's Office (ACSO) on

January 2, 2001.

2. Respondent is an employer as contemplated by Chapter

760, Florida Statutes.

3. Petitioner was hired and worked during her employment

with Respondent as a Clerical Technician I in the county jail.

The position description for Clerical Technician I includes the

following:

WORK CONDITIONS:

Normal office environment. Shift work,

including weekends and holidays. Work

entails sitting for long periods, bending,

light to moderate liftin g, pushing, pulling,

lifting and carrying.

PHYSICAL REQUIREMENTS:

Sit for long periods

Stand for moderate periods

See at a normal range or with accommodation

Hear at a normal range or with accommodation

Speak, read, and write English

understandably

Amb ulate independently

Bend, squat, kneel and crawl

Lift/carry 25 pounds

Manual dexterity

4. The job description also includes the following under

the heading, Special Requirements: "Ability to work shift work.

May be required to work weekends or holid ays."

Allegations Related to Disability

5. On September 4, 2003, Petitioner sustained a back

injury while on the job from carrying a large coffee pot full of

water. She completed an incident form regarding her injury.

6. At the instruction of her imme diate supervisor, Pamela

Cuffie, Petitioner was seen by a doctor, who completed a health

and work status report dated September 9, 2003. This report

placed temporary work restrictions on Petitioner. Initially,

the work restrictions were: that she should not perform physical

force restraints/combat; should not run, crawl, swim, climb a

ladder; drag or push heavy objects; and limited Petitioner to

lifting not more than 10 pounds. The diagnosis was "lumbar

sprain."

7. On September 12, 2003, Sheriff Stephen Oelrich sent a

memorandum to Petitioner placing her on Temporary Restricted

Duty. The memorandum set forth conditions of her restricted

duty:

You have provided a Health and Work Status

Report signed by your physician indicating

that as of September 10, 2 003, you may

return to work but will be unable to fulfill

one or more of the essential functions of

your appointment as a Clerical Technician I.

Therefore, effective September 10, 2003, you

are hereby placed on Temporary Restricted

Duty....

While on Temp orary Restricted Duty, the

following conditions shall apply:

1. You shall abide by those physical

restrictions as noted by your physician on

the Health and Work Status Report dated

09/09/03.

2. Your Temporary Restricted Duty dress

will be at the discre tion of the assigned

Division Commander.

3. You must obtain the approval of your

certifying physician, the Human Resources

Bureau and your Division Commander prior to

engaging or continuing in Secondary

Employment.

4. You shall not work overtime.

5. You will not be eligible for transfer,

special assignment, or promotion.

An assignment to Temporary Restricted Duty

cannot exceed twelve months. If you are

unable to return to full, unrestricted

duties as a Clerical Technician I at that

time, you will be subject to

reclassification to a position within your

capabilities, and to which you are

qualified, or to termination.

8. On September 16, 2003, Petitioner's physician completed

a second health and work status report, continuing her initial

temporar y work restrictions and adding that Petitioner should

not operate duty weapons or vibrating tools and should not

perform stressful work. The report also reflected that

Petitioner will start physical therapy.

9. On October 13, 2003, Petitioner's physicia n completed a

third health and work status report and continuing her previous

restrictions and noted that Petitioner would continue physical

therapy and schedule a lumbar MRI. Unlike the two previous

reports, the diagnosis was "lumbar disc disease."

10. On October 22, 2003, Petitioner's physician completed

a fourth health and work status report which continued the

previous restrictions adding that Petitioner should not walk 50

percent of the time; that Petitioner should not do work

requiring the use of b oth feet; that work shifts should be

limited to eight - hour shifts; and that Petitioner should get

work boots. The diagnosis was described as "lumbar

sprain/lumbar disc disease."

11. Following the October 22, 2003, health and work status

report, Sherry L arson, Human Resources Bureau Chief for

Respondent, called the doctor who completed the health and work

status reports, Dr. Urban, and inquired as to the need of work

boots, especially in light of his recommendation about not using

both feet. Ms. Larson i nformed Dr. Urban that Petitioner

performed clerical duties, not law enforcements duties.

Following this telephone conversation, Ms. Larson wrote a note

on the bottom of the October 22, 2003, report, "Per Dr. Urban,

Ms. Johnson can do office work. No use of both feet is limited

to no cycling. Work shift 8 hours. No need for work boots."

12. The next two health and work status report s were

completed on November 6, and December 2, 2003, which generally

referenced the same restrictions but no longer refer enced the

need for work boots, removed the restriction that she should not

use both feet, and added a restriction that Petitioner should

not climb stairs 80 percent of the time.

13. Dr. Urban referred Petitioner to Dr. DePaz. Dr. DePaz

examined Petiti oner on February 24, 2004. He completed a health

and work status report on which he wrote, "Light activities - no

repetitious motion of the back." He noted that Petitioner

should not lift over 25 pounds and included the notation,

"Ability to make position changes as needed." The word

"repetitive" is written on the report, but the placement of the

word "repetitive" is ambiguous as to what it modifies.

14. All of the health and work status reports signed by

Dr. Ur ban noted the date of injury to be Septembe r 4, 2003. For

reasons that are not clear from the record, Dr. DePaz referenced

a 1985 injury. All of the health and work status reports,

including Dr. DePaz's, reflect that Petitioner's injury was work

related.

15. Of most significance to the allegati ons herein,

Dr. De Paz noted that Petitioner's restrictions were permanent.

16. Upon receiving Dr. De Paz's health and status report,

Ms. Larson informed her supervisor, Mr. Tudeen, and Cindy

Weigant, the attorney for ACSO, that Petitioner's restrictions

we re changed from temporary to permanent.

17. Following receipt of Dr. De Paz' s report, an analysis

was made of Petitioner's job description and her permanent job

restrictions. Of particular concern were the job requirements

for light - to - moderate lifting, pushing, pulling, carrying, and

bending. A determination was made that Petitioner would not be

able to perform the essential requirements of her job on a

permanent basis.

18. On March 2, 2004, Sheriff Oelrich wrote a memorandum

to Petitioner which reads as follows:

The Human Resources Bureau is in receipt of

medical documentation which places permanent

physical restrictions on your ability to

lift more than 25 pounds with the additional

restrictions of "light activities - no

repetitive motion of the back." The job

description for your position of Clerical

Technician I specifically states that

individuals assigned to this classification

will be required to "lift/carry 25 pounds,

sit for long periods, light to moderate

pushing, pulling and carrying." These tasks

are considered essential functions of the

job of Clerical Technician I.

Because of these permanent restrictions,

your assignment as Clerical Technician I is

ended effective immediately. You are

requested to contact Human Resources Bureau

Chief She rry Larson at 367 - 4039 to discuss

your interest in other vacant positions for

which you may qualify.

19. Respondent has a directive given to all employees

entitled Alachua County Sheriff's Office Employee Injury,

Disability and Workers' Compensation. T his directive outlines

policies and procedures for reporting, processing, and treating

job - related injuries under Florida's Workers' Compensation Law.

This directive sets out a process that was followed in the

instant case: the injured employee makes an initial injury

report; health and work status reports are completed by the

treating physician; and temporary restricted duty is a temporary

benefit extended to full - time employees placing an employee into

a temporary restricted work assignment. Regarding instances

when an employee cannot be returned to unrestricted duty, the

policy states the following:

An employee whose restriction has been

deemed to be permanent by a licensed

physician and who is therefore unable to

perform the essential functions of his /her

job or who is unable to return to

unrestricted duty from temporary restricted

duty within the allowable time frame, will

be governed by the following:

* * *

Employees who are not able to return to

unrestricted duty, with or without

accommodation, du e to work related

injury/illness shall be subject to

reclassification to a position within their

capabilities, and for which they are

qualified, if available, or to termination

in accordance with the provisions of F.S.

440.

20. Petitioner recalls calling Ms. Larson twice inquiring

as to vacant positions, but did not learn of any as a result of

these phone calls.

21. Ms. Larson does not recall whether Petitioner called

her inquiring as to vacant positions, but outlined what she does

in those circumstances. When an employee calls, she has a list

of current vacancies in the ACSO that she reviews to determine

whether there are any vacancies in positions that meet the

person's permanent restrictions. When asked whether she would

have gone though this process had Petitioner called, she

responded, "Absolutely. Yes."

22. Petitioner did not identify a specific vacant position

for which she was qualified which the district had at the time

she received the Duty Status memorandum.

23. In addition to Petitioner, Res pondent has terminated

three other employees from the booking support unit who had

permanent restrictions that did not allow him or her to perform

certain positions with Respondent . Two of those employees are

Caucasian females; one is a Caucasian male.

24 . Other than the health and work status reports, there

was no medical evidence presented that Petitioner is disabled. 3/

Allegations regarding race and religion

25. Petitioner acknowledged at hearing that no action was

taken against her because of her reli gion. When asked what

happened that led her to believe that any action was taken

against her on the basis of religion, Petitioner responded, "No

action was taken because of my religion."

26. Further, Petitioner acknowledged at hearing that she

was not te rminated because of her race. When asked whether she

believed that she was terminated because of her race, she

answered "No." 4/

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fl a. Stat.

28. The Florida Civil Rights Act (the Act) states that it

is an unlawful employment practice for an employer to discharge

or otherwise discriminate against an individual on the basis of

handicap. § 760.10(1), Fl a. Stat.

29. The Act is to be construed in conformity with federal

law. Specifically, courts have looked to the Rehabilitation

Act, 29 U.S.C., et seq. , and the Americans With Disabilities Act

(ADA), 42 U.S.C. Section 12101, et seq. , as well as related

regulations and judicial decisions, in construing claims

relating to handicap or disability. Chanda v. Engelhard/ICC ,

234 F.3d 1219 (11th Cir. 2000); Brand v. Florida Power

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

30. In construing the Act in acco rdance with federal law,

the method of proving discrimination is normally analyzed by a

tribunal based upon an approach set forth in the United States

Supreme Court cases of McDonnell Douglas v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089,

67 L. Ed. 2d 207 (1981). In this method of analysis, the

employee has the burden of establishing by a preponderance of

the evidence a prima facie case of unlawful discri mination. If

the employee succeeds, a presumption of discrimination arises

and the burden shifts to the employer to produce evidence

articulating a legitimate, nondiscriminatory reason for its

action. If the employer produces such evidence, the employee

must prove that the employer's proffered reason was not the true

reason for the employment decision, but was, in fact, a pretext

for discrimination. See Department of Corrections v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting

b urdens of proof in discrimination cases).

31. In examining handicap discrimination cases, the

McDonnell Douglas/Burdine approach is frequently modified in

handicap or disability cases, particularly in situations in

which the employer admits that the plain tiff's handicap or

disability was the reason for the adverse employment action.

Brand , supra , at 508. Discriminatory intent is not necessarily

the issue in such cases, because the employer has admitted

taking the action complained of because of the emplo yee's

handicap or disability. Brand , supra .

32. While Respondent in this case recognizes that

Petitioner's back condition is a physical impairment which

formed the basis for the employment action taken regarding

Petitioner, it does not concede that the p hysical impairment

constitutes a disability under the ADA. See , Chanda , supra at

1222. The process employed by Respondent in response to

Petitioner's injury is the process outlined in its directive

regarding injuries for purposes of workers' compensation .

Whether Petitioner's physical impairment constitutes a

disability under the law governing disability discrimination is

a threshold matter for consideration.

33. In this case, Petitioner's burden is to establish a

prima facie case of employment discri mination by proving by a

preponderance of the evidence (1) that she is a handicapped or

disabled individual under the ADA; (2) that she was a qualified

individual at the relevant time, i.e., that she could perform

the essential functions of the job in ques tion with or without

reasonable accommodations; and (3) that she was discriminated

against because of her handicap or disability. Lucas v.

Grainger , 257 F.3d 1249, 1255 (11th Cir. 2001), citing Reed v.

Heil , 206 F.3d 1055, 1061 (11th Cir. 2000). If Petit ioner is

unable to establish a prima facie case, the burden of producing

rebuttal evidence does not shift to the employer , and judgment

should be entered for the employer. Brand , 633 So. 2d at 510 -

511.

34. In the event that Petitioner does meet her burde n of

proof, the employer then has the burden of showing that the

Petitioner's handicap is such that it cannot be accommodated or

that the proposed accommodation is unreasonable because it

results in an undue hardship on defendant's activities. Brand ,

supr a , at 511 - 512. The plaintiff bears the burden of

identifying an accommodation and demonstrating that the

accommodation allows her to perform the essential functions of

the job. Lucas v. Grainger , supra , at 1255 - 1256.

35. Once the employer places in evide nce valid reasons for

the challenged action, Petitioner cannot remain silent, but must

rebut the employer's position, if she can. Brand , supra , at

512. In this connection, the ultimate burden of persuasion in

the case remains with the employee (Petitione r). Id.

36. The ADA defines a disability as a physical or mental

impairment that substantially limits one or more of the major

life activities of an individual, a record of such impairment or

being regarded as having such an impairment. 42 U.S.C. §

1210 2(2); Rossbach v. City of Miami , 371 F.3d 1354, 1357 (11th

Cir. 2004)

37. Major life activities are defined as "functions such

as caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning and working." Hilburn v .

Murata Electronics North America, Inc. , 181 F.3d 1220, 1227.

The inability to perform one particular type of job does not

constitute a substantial limitation on one's ability to work.

Rossbach v. City of Miami , supra , at 1359; Aucutt V. Six Flags

over Mid - America , 85 F.3d 1311 (8th Cir. 1996).

38. At least two federal circuit courts have held that a

lifting restriction of no more than 25 pounds is not a

disability within the meaning of the ADA. Williams v. Channel

Master Satellite Systems, Inc. , 10 1 F.3d 346, 349 (4th Cir.

1996); Aucutt v. Six Flags Over Mid - America , supra .

39. Applying the above analysis to the instant case, the

undersigned is not persuaded that Petitioner's physical

impairment constitutes a disability under the law. Petitioner 's

treating physician(s) did not testify. The only medical

documentation regarding her injury are the health and work

status reports. This is simply insufficient to establish that

Petitioner is disabled as contemplated by the ADA. Further,

Petitioner ha s not presented any evidence indicating that her

back condition poses a significant restriction on her ability to

carry out either a class of jobs or a broad range of jobs or

that her physical impairment poses a significant restriction on

her ability to ca rry out other major life activities. "In

short, [Petitioner] has failed to present sufficient evidence to

establish that the nature, duration, and long - term impact of

[her] medical problems caused [her] to be substantially limited

in a major life activity ." Aucutt , supra , at 1319.

Accordingly, the first prong of the prima facie case has not

been met by Petitioner.

40. Nor has Petitioner established that Respondent

regarded her as disabled as contemplated by the ADA. Knowledge

alone of an employee's phy sical impairment by an employer does

not show that the employer regards the employee as having a

substantially limiting impairment. Id . Following a physician's

work restrictions for purposes of compliance with workers'

compensation laws does not establis h that Respondent perceived

Petitioner to have a disability that substantially limited a

major life activity. See Rossbach v. City of Miami , supra , at

1360 - 1361. Further, the March 2, 2004, memorandum from Sheriff

Oelrich offered an opportunity to, at le ast, discuss other

employment options.

41. As to the second prong of the prima facie case,

Petitioner must establish that she is a qualified individual,

who could perform the essential functions of the job with or

without an accommodation.

42. The Elev enth Circuit addressed the issue of

determining what functions of a particular job are deemed to be

essential:

The ADA provides that in determining what

functions of a given job are deemed to be

essential, 'consideration shall be given to

the employer's ju dgment . . . and if an

employer has prepared a written description

before advertising or interviewing

applicants for the job, this description

shall be considered evidence of the

essential functions of the job. ' 42 U.S.C.

§ 12111(8).

Holbrook v. City o f Alpharetta, Georgia , 112 F.3d 1522, 1526

(11th Cir. 1997).

43. Lifting more than 25 pounds is listed as an essential

function of the job for a Clerical Technician I in the job

description of that position. Employers are not required to

transform a posi tion into another one by eliminating functions

that are essential to the job. Lucas v. Grainger , supra , at

1260.

44. Respondent placed Petitioner on temporary work duty

after she reported her back injury. Once her physician

classified her work restrict ions as permanent, temporary work

duty was no longer appropriate. An employer is not required to

make fundamental alterations in its program or create a new job

for the plaintiff. Brand , supra , citing Alexander v. Choate ,

469 U.S. 287, 300 (1985); School Board of Nassau County v.

Arline , 480 U.S. 273 (1987).

45. The fact that an employer accommodates an employee,

even though the employer is not or may not be legally required

to do so, does not necessarily give rise to any legal liability

for failure to r easonably accommodate when such a practice is

discontinued. As discussed by the Eleventh Circuit,

Significantly, what is reasonable for each

individual employer is a highly fact -

specific inquiry that will vary depending on

the circumstances and necessit ies of each

employment situation. Federal regulations

promulgated pursuant to the ADA expressly

note that

[a]n employer or other covered

entity may restructure a job by

reallocating or redistributing

non - essential, marginal job

functions . . . . An emp loyer or

other covered entity is not

required to reallocate essential

functions. The essential

functions are by definition those

that the individual who holds the

job would have to perform, with or

without accommodation, in order to

be considered qualifie d for the

position.

29 C.F.R. Part 1630, Appendix at 344. See

also Milton v. Scrivner, Inc. , 53 F.3d 1118,

1124 (10th Cir. 1995)("An employer is not

required by the ADA to reallocate job duties

in order to change the essential functions

of a job."); Lar kins v. CIBA Vision Corp. ,

858 F. Supp. 1572, 1583 (N.D. Ga. 1994)

("[R]easonable accommodation does not

require an employer to eliminate essential

functions of the position.").

* * *

We agree that the record unambiguously

reveals that the police departm ent made

certain adjustments to accommodate Holbrook

in the past.

* * *

However, we cannot say that the City's

decision to cease making those

accommodations that pertained to the

essential functions of Holbrook's job was

violative of the ADA.

Holbrook , supra , at 1527 - 1528.

46. Moreover, Petitioner complained about not receiving

work boots as an accommodation specified by her doctor.

However, Ms. Larson clarified with the treating physician that

work boots were not necessary for the duties of Clerical

Technician I.

47. Petitioner argues that she should have been offered a

vacant position. However, she has failed to establish that

there was another vacant position at ACSO, for which she was

qualified.

48. Accordingly, as to the second prong of a pr ima facie

case, Petitioner has failed to establish that she was qualified

for the Clerical Technician I position from which she was

removed.

49. As to the third prong of the prima facie test, while

the ACSO acknowledges that they removed Petitioner becau se of

her physical impairment, the removal did not constitute unlawful

discrimination as she is not disabled as contemplated by the

ADA.

50. Since Petitioner did not establish a prima facie case

of unlawful discrimination on the basis of handicap, the b urden

does not shift to the employer.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief filed by

Petitioner, Beulah M. Johnson.

DONE AND ENTERED this 30th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Heari ngs

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 30th day of September, 200 5.

ENDNOTES

1/ In her Proposed Recommended Order, Petitioner argues that

Respondent did not follow certain employment matters, primarily

related to worker's compensation . The jurisdiction of FCHR and,

therefore, of the undersigned, is limited to viola tions of

Chapter 760, Florida Statutes. Therefore, other matters are

outside the scope of this proceeding and will not be addressed.

2/ Petitioner attached several documents to her Proposed

Recommended Order, which had not been offered into evidence at

the final hearing. Accordingly, those documents are not part of

the record and cannot be considered by the undersigned in

writing this Recommended Order. § 120.57(1)(f), Fla. Stat.

3/ Neither Dr. Urban or Dr. DePaz testified.

4/ Accordingly, this Ord er will only address Petitioner's

allegations of discrimination on the basis of disability.

COPIES FURNISHED :

Beulah M. Johnson

P.O. Box 1372

Bunnell, Florida 32110

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Pa rkway, Suite 100

Tallahassee, Florida 32301

Linda G. Bond, Esquire

Allen, Norton & Blue, P.A.

906 N. Monroe Street, Suite 100

Tallahassee, Florida 32302

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 1 00

Tallahassee, Florida 32301

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 that

will issue the final order in this case.