05-003971 Jonathan A. Race vs. Orange County Fire Rescue Status: Closed Recommended Order on Thursday, May 11, 2006.

Summary: Respondent did not unlawfully discriminate against Petitioner when terminating his employment as a firefighter due to his wearing a pacemaker for his medical condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN A. RACE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3971

)

ORANGE COUNTY FIRE RESCUE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on January 13, 2006, in Orlando,

Florida.

APPEARANCES

For Petitioner: Jonathan A. Race, pro se

1081 Dean Street

St. Cloud, Flo rida 34771

For Respondent: Gary M, Glassman, Esquire

Orange County Attorney's Office

Litigation Section

435 North Orange Avenue, 3rd Floor

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in the practice of

discrimination against Petitioner when terminating him from

employment as a firefighter due to a medical condition.

PRELIMINARY STATEMENT

On February 17, 2005, Petitioner filed a Charge of

Discrimination with the Florida Commission o n Human Relations

("FCHR"), alleging that Respondent terminated his employment as

a certified firefighter for a medical condition due to his

wearing a pacemaker. On September 14, 2005, the FCHR issued a

Determination: No Cause in which it found no unlawf ul

employment practice had occurred in Petitioner's termination.

On October 19, 2005, Petitioner filed a Petition for Relief with

the FCHR in which he alleged that his termination for his

medical condition was improper due to the fact that he was not

pace maker dependent, based upon findings made by his

cardiologist. The matter was referred to the Division of

Administrative Hearings on October 20, 2005, and was assigned to

the undersigned Administrative Law Judge. The matter proceeded

to hearing in Orland o, Florida, on January 13, 2006.

At the hearing, Petitioner presented the testimony of

Mr. David Hart, testified in his own behalf, and offered Exhibit

Nos. 1 through 10 , all of which were accepted into evidence.

Respondent presented the testimony of Chi ef Jeffrey Holden and

offered Exhibit Nos. 1 through 6 , all of which were accepted

into evidence.

A Transcript was filed on March 8, 2006 . After the

hearing, Petitioner filed correspondence that will be considered

as Proposed Findings of Fact and Conclu sions of Law on

February 23, 2006. Respondent , after requesting extensions of

time, which , for good cause, were granted, filed its Proposed

Findings of Fact and Conclusions of Law on May 1, 2006 .

References to statutes are to Florida Statutes (200 5 )

unl ess otherwise noted.

FINDINGS OF FACT

1. Petitioner, Jonathan Race, was employed by Respondent,

Orange County Fire Rescue Department, since January 1989, and

worked in the Operations Division as a Lieutenant/EMS

Supervisor. In this role, he managed, c oordinated, and

performed firefighting and emergency rescue services.

2. In the mid - 1990s, Petitioner was diagnosed with atrial

fibrillation which ultimately resulted, in July 2001, in his

undergoing an open heart surgical procedure known as the "MAZE"

procedure.

3. Following the open heart surgery, Petitioner had a

pacemaker installed in August 2001.

4. Petitioner's cardiologist from 1997 to January, 2005,

was Arnold Einhorn, M.D.

5. Barry Portnoy, M.D., is a physician under contract with

Ora nge County to perform annual physical examinations for

members of the Orange County Fire Rescue Department.

6. While Dr. Einhorn served as Petitioner's cardiologist,

he had periodic conversations with Dr. Portnoy concerning

Petitioner's cardiac condition .

7. On May 20, 2003, Dr. Einhorn wrote a letter to

Dr. Portnoy in which he stated that Petitioner , "continues to be

on medical therapy with beta blockers and Digoxin and his

underlying heart rate is in the 30s and this making him

dependent on the pacem aker approximately 80% of the time."

Dr. Einhorn concluded at that time that Petitioner needed to

continue with his medications and use of the pacemaker.

Petitioner, concluded, Dr. Einhorn, "is dependent on the

pacemaker."

8. On January 16, 2004, Dr. Portnoy conducted an annual

physical for Petitioner.

9. On February 6, 2004, Dr. Portnoy stated in his

evaluation of Petitioner : "Classification deferred pending

additional information. . . . Employee may continue in his/her

present duties for no more th an 30 days while awaiting further

evaluation."

10. On June 4, 2004, Dr. Portnoy completed his evaluation

of Petitioner, imposing a restriction of "No functioning as a

member of a team or independently where sudden incapacitation

could result in harm to h imself, risk to others, or mission

failure."

11. Dr. Portnoy placed Petitioner on light duty , which

resulted in his assignment to an office job at fire

headquarters.

12. Respondent's policy dictates that, when an employee is

placed on light duty, a med ical review is conducted. After

being placed on restricted or light duty, a medical review of

Petitioner was commenced in June 2004.

13. Respondent's medical review committee requested that

Petitioner obtain from his cardiologist, Dr. Einhorn,

informati on concerning Petitioner's cardiac condition.

14. On January 5, 2005, Dr. Einhorn, at Petitioner's

request, sent a letter to Dr. Portnoy in which he stated, in

part, "We have been trying to wean the patient off beta blockers

and Digoxin to see if the pat ient is still pacemaker dependent.

He is now not on any Digoxin and Toprol and interrogation of his

pacemaker revealed 30% atrial paced with 16 runs of atrial

fibrillation."

15. Based upon the information received from Dr. Einhorn

by Dr. Portnoy, Respon dent sent Petitioner a letter dated

February 17, 2005, which stated that Respondent had determined

there was a preponderance of evidence that restrictions placed

on Petitioner by Dr. Portnoy would continue indefinitely and

that Petitioner would not be able to return to his position in

the Operations Division as Lieutenant/EMS Supervisor.

Respondent concluded that under Article 34.11 of the Collective

Bargaining Agreement , Petitioner would be medically separated

from his employment with the County, effectiv e March 26, 2005,

at 19 : 30 hours.

16. While on light office duty, Petitioner was given

additional time to pursue other jobs with Orange County.

17. Petitioner did not find another job with Orange

County.

18 . On March 10, 2005, after Petitioner had r eceived the

February 17 letter from Respondent, Amish Parikh, M.D., wrote a

letter "To Whom It May Concern" , in which he stated that

Petitioner "is now pacing only 0.8% of the time and it is not

considered pacemaker - dependent. I believe the pacemaker is n ot

a limiting factor in his ability to perform his job and he

should be permitted to return to full duty without

restrictions." Nothing in this letter makes reference to any

medications Petitioner would be required to take in the future.

19 . On April 15 , 2005, after Petitioner had been

terminated from his employment with Respondent, Petitioner was

examined by another cardiologist, Sunil M. Kakkar, M.D., who

concluded that Petitioner was not pacemaker dependent and could

return to full duties with Respond ent.

20 . Neither Dr. Parikh nor Dr. Kakkar testified at the

hearing. Their written reports appear to be based upon one

visit by Petitioner with each of them.

21 . On March 23, 2005, Dr. Portnoy reviewed the March 10

letter from Dr. Parikh.

22 . Dr . Portnoy did not change his determination that

Petitioner was pacemaker dependent after his review of

Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions

he had imposed on Petitioner.

23. At the time of hearing, Petitioner continued to take

medications, both aspirin and Toprol, for his cardiac condition.

2 4 . David Hart worked as a firefighter with Respondent

from March 16, 1981, through his voluntary retirement, with the

rank of Engineer, on February 10, 2005.

25 . Mr. Hart was diagnosed with atrial fibrillation in

1992 and was treated for the condition with medications for the

ensuing six years. Mr. Hart had a pacemaker implanted in

October of 1998, and had the pacemaker in place through his

retirement.

2 6 . While still employed by Resp ondent, Mr. Hart's private

cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy

with information concerning the pacemaker, and determined that

Mr. Hart was not pacemaker dependent.

2 7 . Based upon Dr. Filart's determination that Mr. Hart

was not pacemaker dependent, Mr. Hart was not removed from duty

or placed on restricted duty due to his pacemaker.

2 8 . Mr. Hart agreed that the decision with respect to

pacemaker dependency should be made by the patient's

cardiologist.

2 9 . Petitioner claims th at he was discriminated against by

Respondent due to disparate treatment between himself and

David Hart. He alleges he is not pacemaker dependent, is

similar to Mr. Hart, and, therefore, should not have been

medically separated from his employment with R espondent.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569 , 120.57(1), and 760. 01 , et. seq. , Fla.

Stat.

31 . Petitioner is an “aggrieved person” a nd Respondent is

an "employer" within the meaning of Subsections 760.02(10) and

(7), Florida Statutes, respectively. Section 760.10, Florida

Statutes, makes it unlawful for Respondent to discharge or

otherwise discriminate against Petitioner based on an e mployee’s

disability.

32 . In Petitioner's Employment Complaint of

Discrimination, he alleges that he is not disabled because of

his pacemaker, but has been regarded by Respondent as disabled

because of the pacemaker. Therefore, he claims, Respondent

viol ated the Florida Civil Rights Act when it failed to retain

him as an employee despite the fact he has a pacemaker.

3 3 . In a disability discrimination case alleging

discriminatory discharge, in order to establish a prima facie

case of discrimination, a pet itioner must demonstrate that

(1) he is physically disabled; (2) he is a “qualified

individual,” meaning he can perform the essential functions of

the job in question with or without reasonable accommodation;

and (3) he was discriminated against because o f his disability.

Lucas v. W.W. Granger, Inc. , 257 F.3d 1249, 1255 (11th Cir.

2001); Reed v. Heil Co. , 206 F.3d 1055, 1061 (11th Cir. 2000).

3 4 . No direct evidence of discrimination exists in this

case. A finding, if any, must be based on circumstantial

evidence.

3 5 . The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 03 (1973). Federal discrimination

law may be used for guidance in evaluating the merits of cl aims

arising under Chapter 760. Tourville v. Securex, Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co - op.,

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power

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

3 6 . Florida co urts have recognized that actions for

discrimination on the basis of disability are analyzed under the

same framework as Americans with Disabilities Act (ADA) claims.

Chanda v. Englehard/ICC , 234 F.3d 1219 (11th Cir. 2000). The

ADA defines a disability a s a physical or mental impairment that

substantially limits one or more of the major life activities of

an individual. Chanda , Id. at 1221. In this matter, at no time

has Petitioner alleged that he is restricted in the manner in

which he can perform any major life activity.

3 7 . If Petitioner succeeds in making a prima facie case,

the burden shifts to Respondent to articulate some legitimate,

nondiscriminatory reason for its conduct. If Respondent carries

this burden of rebutting Petitioner’s prima fac ie case,

Petitioner must demonstrate that the proffered reason was not

the true reason, but merely a pretext for discrimination.

McDonnell Douglas , supra at 802 - 03.

3 8 . Applying the required standard of proof, Petitioner

has failed to establish any claim of unlawful discrimination.

With respect to the first factor establishing discrimination on

the basis of a disability, the ADA and FCRA define "disability"

as 1) a physical or mental impairment that substantially limits

one or more of the major life acti vities of such individual;

2) a record of such impairment; or 3) being regarded as having

such impairment. Smith v. City of Des Moines, 99 F.3d 1466,

1474 (8th Cir. 1996); see also Sutton v. United Airlines, Inc. ,

527 U.S. 471, 489 (1999).

39 . In the p resent case, Petitioner claims not to have a

disability, but is regarded by Respondent as having one. An

employee is considered disabled if he is regarded as having an

impairment that substantially limits a major life activity.

Wooten v. Farmland Foods , 58 F.3d 382, 385 (8th Cir. 1995).

Working is considered a major life activity which, if

substantially limited or regarded as substantially limited by an

impairment , would thus qualify the employee as disabled.

29 C.F.R § 1630.2(I); Wooten , id .

4 0 . "Work ing," however, does not mean working at a

particular job of the employee's choice. Wooten , id . ; Smith ,

supra , at 1474. An impairment that disqualifies a person from

only a narrow range of jobs is not considered a substantially

limiting one. Sutton , supr a at 491; Stewart , supra at 1285,

citing Pritchard v. Southern Co. Services , 92 F.3d 1130, 1132

(11 Cir.), amended on rehearing , 102 F.3d 1118 (11th Cir. 1996);

Wooten , supra , citing Heilwell v. Mount Sinai Hospital , 32 F.3d

718,723 (2d Cir. 1994).

4 1 . In this case, Petitioner's evidence demonstrated that

Respondent believed that Petitioner, due to his pacemaker, was

unable to perform only one specific job, namely, Lieutenant/EMS

Supervisor. Petitioner failed to present any evidence that

Respondent regard ed him as unable to perform a broad range of

jobs. In fact, based upon Respondent's testimony, the opposite

is true. Respondent placed Petitioner on light office duty, and

considered him able to perform this job. Further, even after

Respondent told Peti tioner he would be terminated from t his

particular position with the County , he was given the

opportunity to find another position with the County.

4 2 . Petitioner has failed to establish that he was

regarded by Respondent as having an impairment that qual ified

him as disabled. Therefore, although the evidence supports that

Petitioner is unfit to perform his duties as a Lieutenant/EMS

Supervisor, he has not proven that he has met the first factor

in establishing a prima facie case of disability discriminat ion,

namely, that he is, in fact , "disabled." Therefore, his claim

of disability discrimination must be dismissed. See Bridges v.

Bossiter , 92 F.3d 329 (5th Cir. 1996) ( holding that an

impairment that prevents one from becoming a firefighter only

affects a narrow range and class of job, and therefore is not a

substantial limitation on the major life activity of working ) .

4 3 . Petitioner also claims that he was treated differently

from another firefighter, David Hart, who also has a pacemaker

and worked se veral years with the pacemaker in place prior to

his voluntary retirement. To establish a disparate treatment

claim, Petitioner must demonstrate : 1) he belongs to a

protected class (in this case a person with a disability); 2)

that he was qualified for t he job; and 3) that a similarly

situated employee outside his protected class did not receive

similar treatment. Alexander v. Fulton County , 207 F.3d 1303,

1336 (11th Cir. 2000).

4 4 . As set forth above, Petitioner is not disabled from

performing the major life activity of working. He is only

precluded from performing his previous job as a Lieutenant/EMS

Supervisor. Moreover, Mr. Hart received clearance to continue

as a firefighter from Dr. Portnoy, Respondent's physician, based

upon Mr. Hart's treat ing cardiologist's findings. In the

present case, Respondent's physician, Dr . Portnoy, reasonabl y

concluded, based upon the finding of Petitioner's long - time

cardiologist , Dr. Einhorn, that Petitioner was unfit to remain

in his position as a Lieutenant/EM S Supervisor. Petitioner's

attempts to have additional cardiologists clear him to work in

that position occurred after Dr. Einhorn and Dr. Portnoy reached

their conclusions, were based upon a single or very few visits,

and therefore do not carry the same weight as the seven years of

care provided to Petitioner by Dr. Einhorn. Without the

testimony of one or both of these later treating physicians,

Petitioner has not met his burden of overcoming the medical

findings of both Dr. Einhorn and Dr. Po r tnoy.

4 5 . In conclusion, Petitioner presented no credible and

persuasive evidence that Respondent’s articulated reasons for

its actions were a pretext for discrimination. There is no

evidence to support a finding that Respondent violated Chapter

760, Florida Stat utes, or the ADA.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission enter a Final Order finding

that the Respondent did not discriminate against Petitioner and

dismissing the Petition for Relief.

DONE AND ENTERED this 11th day of Ma y , 2006, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 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 11th day of Ma y , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jonathan A. Race

1081 Dean Street

St. Cloud, Florida 34771

Gary M. Glassman, Esquire

Orange County Attorney's Office

Litigation Section

435 North Orange Avenue , 3rd Floor

Orlando, Florida 3 2801

Cecil Howard, General Counsel

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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.