06-002414 Glen W. Sellers vs. Lake County Sheriff`s Office Status: Closed Recommended Order on Thursday, January 25, 2007.

Summary: A discussion of the stages by which "impairment" becames a handicap/disability, and the accommodation investigation that is permitted to the employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN W. SELLERS , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 2414

)

LAKE COUNTY SHERIFF'S OFFICE , )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

ca u se on September 7, 2006, in Tallahassee , Florida, before

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

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Glen W. Sellers , pr o se

210 Jasper Street

Bushnell , Florida 3 3513

For Respondent: Linda G. Bond, Esquire

Rumberger, Kirk & Caldwell, P.A.

215 North Monroe Street

Post Office Box 10507

Tallahassee, Florida 32302 - 2507

STATEMENT OF THE IS SUE

Whether Respondent is guilty of an unlawful employment

practice, to wit: constructively discharging Petitioner on the

basis of handicap discrimination without reasonable

accommodation.

PRELIMINARY STATEMENT

On December 8, 2005, Petitioner filed a Ch arge of

Discrimination, on the basis of handicap, with the Florida

Commission on Human Relations (FCHR). On June 5, 200 6 , FCHR

entered its Determination: No Cause. Petitioner timely - filed

his Petition for Relief, and on or about July 10, 2006, the case

was referred to the Division of Administrative Hearings (DOAH).

At the disputed - fact hearing on September 7, 2006, the

parties' Joint Pre - hearing Stipulation was admitted as Joint

Exhibit "A," a composite in two parts. Petitioner testified o n

his own beh alf and had Exhibits P - 1, P - 3, P - 4, and P - 5 admitted

in evidence. Respondent presented the oral testimony of Sheriff

Chris Daniels and Chief Deputy Gary Borders. Respondent's

Exhibits R - 1 , through R - 3, and R - 5 were admitted in evidence.

The parties stip ulated to November 15, 2006, as the date

for filing their proposed recommended orders.

The Transcript was filed on September 25, 2006. The

parties were given notice of the filing of the Transcript by a

Post - hearing Order which also set out how to prepare a

r ecommended order.

Respondent filed its Proposed Recommended Order timely on

November 15, 2006. Petitioner has filed no proposal.

FINDINGS OF FACT

1. Respondent Lake County Sheriff's Office (LCSO),

constitutes an "employer" as defined in Chapter 76 0, Florida

Statutes.

2. Chris Daniels took office as the elected Sheriff of

Lake County, Florida, in January 2005. He ha d been with

Respondent LCS O for 18 years. The s heriff is the chief law

enforcement officer for Lake County; operates the Lake County

Jail for the Board of County Commissioners ; and manages security

and bailiffs for the Lake County Courthouse. His

responsibilities also include providing final approval for

staffing levels at the Lake County Jail.

3 . In 2005, Petitioner had been employ ed as a detention

officer at the Lake County Jail for 16 years. He is a certified

corrections officer.

4. Corrections/detention officers assigned to the inmate

housing/security areas at the jail work 12 - hour shifts from 6:00

a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or

"D" S quads. The squads rotate from day to night , and from night

to day , s h ifts every four months. Officers assigned to inmate

security are not normally assigned permanent shifts. Petitioner

was such an officer.

5 . Working on rotating shifts is an essential function of

working in the inmate housing area of the jail, as detailed in

the job description for corrections officers as follows:

6. . . . ensures a timely transmission of

pertinent information and materials to other

correctional personnel assigned to the same

and/or the next shift.

6. Petitioner understood at the beginning of his

employment with LCSO that he was expected to work rotating

shifts, and he did, in fact, work rotating shifts until 1996.

7 . Other corrections officers assigned to laundry, the

jail kitchen, inmate transportation and other administrative

functions permanently work days from 8:30 a.m. to 5:00 p.m.

Monday through Friday, without shift changes. Such p ositions

with permanent day shifts h ave become available over the years.

However, Petitioner last sought such a position in 1997 or 1998.

8 . Petitioner was working as a detention/ corrections

officer for Respondent when he was diagnosed with diabetes in

1996.

9 . Petitioner's diabetes ca uses tingling in his hands and

feet, impotence, floaters in his eyes, dizziness, profuse

sweating, frequent urination, a weakening immune system and

occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals

that he takes multiple oral medications and that each kind of

medication ideally should be taken at the same time of day, each

day, but there are instructions on how to compensate if a dose

is missed. With the exception of working rotating shifts,

Petitioner was able at all times to perform the ess ential

functions of a corrections officer for Respondent.

10 . The Veterans’ Administration pays Petitioner $218.00

per month because it believes his diabetes was induced by Agent

Orange he encountered while in Viet Nam.

11 . At Petitioner's request, Respo ndent allowed Petitioner

to work a perma nent day shift from 1996 to June 30, 2005, when

he retired.

12 . Petitioner testified he has worked in the past as a

military medic and as a physician's assistant in correction

facilities, so he is knowledgeable abo ut the horrific , and

sometimes fatal , effects of uncontrolled diabetes.

13 . Petitioner expected to live a normal life so long as

he controlled his diabetes.

14 . Petitioner claims to have explained over the years to

all his superiors that he needed to consistently take his

medications at the same time of day. However, he did not offer

any evidence in the present proceeding to explain why he could

not take his medications consistently on a 24 - hour clock, e.g.

during nights , as opposed to during days. T here have been

periods when he experienced problems with his diabetes while

working a permanent day shift. His medications have been

adjusted several times since 1996.

15 . All witnesses agreed that Petitioner spent 18 months

alone in a permanent day po sition in the third - floor control

room. Petitioner claimed that he was assigned t his long period

of duty on the third - floor as “ punishment ” for being allowed to

permanently work a day shift. He maintained , without any

supporting evidence, that being assi gned to a single position

for more than a few months this way was unusual. However,

a lthough Respondent assigned Petitioner to the third - floor

control room alone for a duration of 18 months, Respondent also

assigned a non - diabetic employee alone there for about one year.

Petitioner speculated, again without any supporting evidence,

that the non - diabetic employee was also being punished for

something. Both Petitioner and the non - diabetic employee

experienced being confined to the control room without a

re stroom. Having to urinate when no other officer could stand -

in for them created a hardship on both men. On one occasion,

the non - diabetic employee urinated in a garbage can.

16 . At the date of hearing, Gary Borders had been with

LCSO for 17 years and s erved as its Chief Deputy . 1/ On the date

of hearing, and at all times material, Chief Borders’ duties

included responsibility for the day - to - day operations of the

Lake County Jail and the Lake County Courthouse and for

training.

17 . Petitioner claims to have frequently protested to many

superiors about not having a restroom on the third - floor and not

being allowed to bring food in for his diabetes. He also

claimed to have specifically asked Chief Borders t o be

transferred from service on the third - floor , but Chief Borders

did not recall more than one vague conversation concerning

Petitioner’s complaint about how long Petitioner had been posted

there and that he had told Petitioner he, Borders, had no

problem with Petitioner’s being transferred elsewhere in the

jail.

18. I t is not clear when, precisely, this 18 month - period

occurred. Because Petitioner was on a permanent day shift from

1996 - 1997 to 2005 (eight years ) , and Petitioner testified his

18 - month posting on the third - floor was "over" and was fr om

2003 - 2005, his time on the third - floor was not affirmatively

shown to have occurred within the 365 days immediately preceding

the filing of his Charge of Discrimination with FCHR on

December 8, 2005.

19 . When Sheriff Daniels took office in January 2005 ,

Chief Borders advised him that because the date for the squad s

to rotate shifts ( see Finding of Fact 4 ) was due to occur on

May 1, 2005, the number of persons assigned to permanent shifts

was affecting Chief Borders' ability to make assignments. When

co rrections officers working in inmate housing of the jail are

assigned permanent shifts, staff shortages can occur on other

shifts. Chief Borders further advised the new sheriff that he,

Borders, was receiving additional requests for permanent shifts.

20 . While discussing why there were so many employees

assigned permanent shifts , and not subject to the standard four

months' rollover of the squads from day - to - night and night - to -

day shifts, Sheriff Daniels and Chief Borders concluded that

LCSO needed a for mal method of differentiating between those

employees who genuinely needed a permanent day or night shift

and those employees who merely wanted a permanent shift

assignment.

21 . To determine which employees needed a permanent shift

as an accommodation fo r their specific condition or situation,

Sheriff Daniels instructed Chief Borders to send a memorandum to

the 12 - 14 employees assigned to permanent shifts, requiring

those employees to provide medical evidence of the ir need for a

permanent shift assignment .

22 . On March 25, 2005, Chief Borders sent all employees

assigned to permanent shifts the following memorandum:

There is a requirement for rotating shift

work for Detention Deputies, Auxiliary

Detention Deputies and Deputy Sheriffs at

the Lake County Sh eriff's Office.

Please ask your physician to review the Job

Description for Detention Deputy (or

Auxiliary) and ask if you can perform all

the job requirements. If you are cross -

sworn, also have your physician review the

Deputy Sheriff job description a nd ask if

you can perform all of the job requirements

for that position.

When your job description(s) have been

reviewed, bring your physician's letter and

all related supporting material (diagnosis,

prognosis, treatment notes, test results and

any other documents that would assist the

agency in evaluating your request) to me so

that our agency physician can review them

for possible accommodation.

Because shift chan ges will take place on

May 1, 2005, you must have your documents to

me no later than 5:00 P .M. on Friday,

April 15, 2005. If I do not hear back from

you by Friday, April 15, 2005 at 5:00 P.M.,

I will take it that you are available for

rotating shift work assignment.

23 . The process envisioned by the Sheriff and Chief was

that when an employe e , who wanted an accommodation , provided the

requested information from his own treating physician , that

employee's supervisor would pass the information along to LCSO's

physician, and an interactive process would begin. A s of the

date of hearing, LCSO ha d employees working in modified jobs,

including job sharing , and an accommodation had been made for a

person in a wheelchair. In 2005, LCSO also fully intended to

accommodate those employees who provided proof from their

physicians of the ir need for other accommodations.

24 . Petitioner testified that he did not want to

repeatedly roll over from day - to - night shifts every four months

because past experience had taught him that each time his shift

changed, it took him at least two weeks to properly regulate and

space his intake of food, liquids, and medications, in such a

way that his diabetes was controlled and he felt alert and

capable.

25 . In response to receiving the March 25, 2005 ,

memorandum, Petitioner presented Chief Borders with a note from

Petiti oner's primary physician, Dr. Gelin, written on a

prescription pad , stating:

brittle diabetic pt needs to work day shift

only.

26 . Petitioner did not present any other written

information in response to Respondent LCSO’s detailed request.

P etitioner testified that he discussed Dr. Gelin’s note with

Chief Borders to the extent that he told Borders that if anyone

on behalf of LCSO phoned Dr . Gel in, Dr. Gelin would discuss or

f ax further information to that person ; Chief Borders does not

recall this conversation. Chief Borders is a diabetic himself,

but he had never heard the term, "brittle diabetic."

27 . It is Petitioner's position that because , in

Dr. Gelin's private conversation s with Petitioner , Dr. Gelin had

told Petitioner that “ any doc tor ” should know the sequelae and

effects of "brittle diabetes," all Petitioner’s LCSO superior s

needed to do was pass on Dr. Gelin’s prescription note to LCSO ’s

consulting physician in order for Petitioner to be accommodated.

Petitioner believed it was h is superiors' duty to make Dr. Gelin

submit the written materials they wanted.

28 . Sheriff Daniels generally distrusted the information

that physicians submitted on prescription pads, because , in his

experience, when the employee or physician was pressed for

details, there was often no supporting information forthcoming .

Therefore, he did not believe the information on Petitioner's

prescription slip , as described to him by Chief Borders, was

sufficient to begin the interactive process with LCSO ’s Human

R esources Department or its consulting physician . N either

Sheriff Daniels nor Chief Borders present ed Petitioner's

prescription slip to them. It was decided between the Sheriff

and the Chief , that Chief Borders would try to get more detailed

information f rom Petitioner.

29 . Petitioner testified that he tried to get more

information from his primary physician, Dr. Gelin, but Dr. Gelin

would not provide in writing the detailed information requested

by LCSO’s March 25, 2005, memorandum.

30 . On April 22, 2005, Chief Borders wrote Petitioner that

Dr. Gelin's prescription pad note was insufficient and that

Petitioner would not be reassigned to a permanent day shift

position , stating :

I have reviewed the information provided by

your physician and find there is

insufficient evidence presented to justify a

permanent shift assignment.

As such, your request is denied. You will

rotate day/nights with your assigned shift

during the normal rotation.

31. None of the 12 - 14 employees assigned to permanent

shifts, had submitted the requested information, so all of them,

including Petitioner, were assigned to a rotating shift. The

Sheriff and Chief received no report of complaints from any

employee.

32 . However, o n April 26, 2005, Petitioner received a memo

stating that effective May 4, 2005, he would be assigned to "C"

squad.

3 3 . "A" S quad , where Petitioner was then assigned, was

scheduled to rotate from day shift to night shift on May 1,

2005, and "C" S quad was due to rotate from the night shift to

the day shift on the same date. Accordingly, LCSO’s purpose in

transferring Petitioner to “C” S quad was to provide him with

four more months (until September 1, 2005) to obtain the

required medical opinion and detailed supporting documentation

from his treating physic ian.

34 . The " A " to " C " S quad change also would have allowed

Petitioner to remain on a day shift , without interruption , and

allow him an additional four months in which to gather medical

information from any appropriate source to support his request

to indefinitely remain on a permanent day shift.

3 5 . In fact, Petitioner was regularly s eeing Dr. Flores ,

at the Veteran s ’ Administration , as well as Dr. Gelin.

Dr. Flores coordinated oversight of Petitioner's medical

condition with Dr. Gelin, who is Peti tioner's private physician.

H owever, Petitioner did not approach Dr. Flores , and he did not

go back to Dr. Gelin , until after Petitioner retired.

3 6 . Petitioner had hoped to work another six years before

retiring, but on May 13, 2005, while still assi gned to the day

shift, Petitioner submitted a letter of resignation, hoping that

someone in his chain of command would try to talk him out of

leaving. H e expected his supervisors to "workout" a permanent

day shift for him , instead of permitting him to ret ire. 2/

37 . Petitioner's resignation letter stated:

Regrettable [sic] I am submitting my letter

of resignation effective June 30, 2005.

Your recent decision denying me permission

to remain on the day shift in spite of my

doctor's recommendation to remain on the day

shift because of my medical condition

(brittle diabetic) has forced me to retire

earlier than I had planned to. There is no

other way that I can regulate my medication

switching from days to nights . . .

38 . Respondent never required Petiti oner to work the night

shift , and he never did work the night shift after 1996 - 1997.

39 . Petitioner gave notice of his retirement in May 2005,

rather than work in "C" S quad on the day shift until

September 1, 2005, or continue to try to obtain additional

medical information that would allow him to indefinitely remain

on a permanent day shift. Petitioner elected to retire

effective June 30 , 2005 , because , upon advice of “Retirement” he

believed it was more financially beneficial for him to retire in

June 2005, rather than wait until January 2006. 3 /

40 . Since January 1, 2006, Petitioner has been employed

managing real property in Florida and Costa Rica.

4 1 . Petitioner testified that when he retired, he could

perform all the duties required by his detent ion /corrections

officer job description , and perhaps other duties as well ,

except for the rotating shifts. He believes , but offered no

supporting documentation, that rotating shifts are counter -

productive and are on their way out in most jails. He furthe r

testified that he could probably even work the rotating shifts

required by this employer but he believed that to do so would

have put him in a health crisis due to his diabetes and multiple

medications.

CONCLUSIONS OF LAW

42 . The Division of Administrat ive Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120. 569 , and 120. 57(1), and Chapter 760,

Florida Statutes.

43 . The shifting burdens of proof in discrimination cases

have been cogently explicated in the seminal case of Department

of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

which stated:

Pursuant to the [ Texas Department of

Community Affairs v. Burdine , 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)]

formula, the employee has t he initial burden

of establishing a prima facie case of

intentional discrimination, which once

established raises a presumption that the

employer discriminated against the employee.

If the presumption arises, the burden shifts

to the employer to present s ufficient

evidence to raise a genuine issue of fact as

to whether the employer discriminated

against the employee. The employer may do

this by stating a legitimate,

nondiscriminatory reason for the employment

decision, a reason for which is clear,

reasona bly specific, and worthy of credence.

Because the employer has the burden of

production, not of persuasion, which remains

with the employee, it is not required to

persuade the trier of fact that its decision

was actually motivated by the reason given.

If the employer satisfied its burden, the

employee must then persuade the fact finder

that the proffered reason for the employment

decision was a pretext for intentional

discrimination. The employee may satisfy

this burden by showing directly that a

discrim inatory reason more likely than not

motivated the decision, or indirectly by

showing that the proffered reason for the

employment decision is not worthy of belief.

If such proof is adequately presented, the

employee satisfies his or her ultimate

burden of demonstrating by a preponderance

of the evidence that he or she has been a

victim of intentional discrimination.

44 . To establish a prima facie case of constructive (or

other) termination by an employer's handicap discrimination, a

petitioner must prove ( 1) he is handicapped within the meaning

of Chapter 760, Florida Statutes, “ The Florida Civil Rights

Act "; ( 2) he is otherwise qualified for his job, with or without

reasonable accommodation; and ( 3) he was terminated solely by

reason of his handicap. Se e Hilburn v. Murata Electronics North

America, Inc. , 181 F.3d 1220 (11th Cir. 1999); Gordon v. E.L.

Hamm & Assoc ., Inc. , 100 F.3d 907 (11th Cir. 1999); and Brand v.

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

45 . Petitioner has failed t o establish the first element

of the prima facie test , because h e has not shown that he is

“ handicapped ” within the meaning of Chapter 760, Florida

Statutes , or that his employer perceived him as handicapped.

46 . In Brand , supra , the court adopted the d efinition of

“ handicap ” found in Section 504 of Title V of the Rehabilitation

Act of 1973, and stated:

i. Section 504 specifically refers to 29

U.S.C. Sec. 706(8)(B) for the definition

thereof. The latter defines an "individual

with handicaps," subject t o certain

exceptions not applicable to this case, as

one "who (i) has a phy sic al or mental

impairment which substantially limits one or

more of such person's major life activities,

(ii) has a record of such impairment, or

(iii) is regarded as having such a n

impairment." Examples of major life

activities include caring for oneself,

breathing, learning, and working. (Emphasis

supplied). Id . at 510, FN 10. 4 /

47 . A lmost the identical definition of “ disability ” is set

out in the A mericans With Disabilities A ct (A DA ) . See 42 U.S.C.

§ 12102(2) .

48. Many federal guidelines /regulations recognize diabetes

as a “physical or mental impairment.” See 45 C.F.R. 84.1

(A)(A)(3), also cited as 45 C.F.R. Part 84, Appendix A, Subpart

A, 3 , dealing with Medicaid . Howev er, nowhere have the se

guidelines been shown to create even a rebuttable presumption.

Affirmative proof of “disability ” is still required to state a

prima facie case under both the ADA and The Rehabilitation Act .

49 . Obviously, at the time Petitioner res igned,

Respondent LCSO did not regard him as handicapped or disabled,

because LCSO was seeking to have Petitioner establish that fact

by providing detailed information from his doctor . Indeed, the

lynchpin of this case is the Respondent Employer’s attempt s to

let Petitioner prove - up his disability/handicap so as to justify

an accommodation. Respondent knew Petitioner had diabetes and

that he had been assigned to a permanent shift for a long period

of time at his own request, as had approximately 1 3 other

similarly situate d employees, but it did not know how , or if ,

Petitioner’s diabetes , or the respective conditions of the other

employees , substantially limited their respective major life

activities in March of 2005 . Respondent did not terminate

Petitione r; Respondent changed Petitioner's squad so as to allow

Petitioner to continue working on ly days, and to allow him

additional time to provide the medical in formation necessary to

support his request for a continued accommodation .

51 . In Toyota Man ufacturing, Kentucky, Inc., v. Williams ,

1 2 2 S. Ct. 681 (2002), the United States Supreme Court, in a

unanimous decision , provided guidance, for purposes of the ADA,

as to how "handicap/disability" is to be proven. See also 42

U.S.C. Section 12112(a) (2000 ); Mont - Ros v. City of West Miami ,

111 F. Supp. 2d. 1338 (S.D. Fla. 2000); D’Angelo v. Con a gra

Foods, Inc. , 422 F.3d 1220 (11 th Cir. 2005 ).

52 . Merely having an “ impairment ” does not make on e

disabled for purposes of ADA. Claimants also need to

demonstr ate that the ir impairment substantially limits a "major

life activity." The word "substantial" clearly precludes

impairment s that interfere in only a minor way with the

performance of manual tasks from qualifying as disabilities .

See Albertson's, Inc., v . Kirkinburg , 527 U.S. 555, 119 S. Ct.

2162 (1999), (explaining that a "mere difference" does not amount

to a "significant restrict[tion]" and therefore does not satisfy

the EEOC's interpretation of "substantially limits"). To

present a prima facie case, t he employee must prove that the

extent of limitation on a major life activity in terms of his

own experience is substantial. Corrective measures (internal to

the body and brain or external via hearing aids or glas ses) must

also be included within the asse ssment of disability.

53 . "Major life activities" thus refers to those

activities that are of central importance to daily life. In

order for performing manual tasks to fit into this category -- a

category that includes such basic abilities as walking, se eing,

and hearing, -- the manual tasks in question must be central to

daily life. If each of the tasks included in the major life

activity of performing manual tasks does not independently

qualify as a major life activity, then together they must do so.

To be “substantially limited,” the employee must be

significantly restricted in his ability to perform either a

class of , or a broad range of , jobs in various classes as

compared to the average person having comparable training,

skills, or abilities. To b e substantially limited in performing

manual tasks, an individual must have an impairment that

prevents or severely restricts the individual from doing

activities that are of central importance to most people's daily

lives , such as working . The impairment 's impact must also be

permanent or long - term. See 29 C . F . R . § 163 0 .2 (j) (2) (ii - iii)

(2001) ; Richio v. Miami Dade County , 163 F. Supp. 2d 1352 (U.S.

So. Dist. Fla. 2001).

54 . It is insufficient for individuals attempting to prove

disability status unde r this test to merely submit evidence of a

medical diagnosis of an impairment. Instead, the ADA requires

those "claiming the Act's protection . . . to prove a disability

by offering evidence that the extent of the limitation [caused

by their impairment] i n terms of their own experience . . . is

substantial." Albertson's, Inc., v. Kirkinburg , supra , at 567,

119 S. Ct. 2162.

55 . An individual assessment of the effect of an

impairment is particularly necessary when the impairment , like

diabetes, is one who se symptoms vary widely from person to

person. When addressing the major life activity of performing

manual tasks, the central inquiry must be whether the claimant

is unable to perform the variety of tasks central to most

people's daily lives, not whether the claimant is unable to

perform the tasks associated with his specific job.

56 . Despite Petitioner’s reliance on the EEOC guidelines

regarding persons with diabetes, the United States Supreme Court

has cautioned against blindly following those guidelin es in

Sutton v. United Air Lines, Inc. 527 U. S. 471, 119 S. Ct. 2139

(1999). The Sutton court found that blindly following a

regulation's formula, without considering measures that mitigate

such an impairment , runs directly counter to the individualized

inquiry mandated by the ADA. Following the EEOC approach would

often require courts and employers to speculate about a person’s

condition and would, in many cases, force them to make a

disability determination based on general information about how

an unc orrected impairment usually affects most individuals

rather than on an individual employee 's actual condition. The

approach required by Sutton requires the employer to view each

employee on a case by case basis at the present time, not at

some other point in time. Collado v. United Parcel Services ,

419 F.3d 1143 (11th Cir. 2005) , further holds that the long term

existence of an "impairment" is not enough to establish a

"disability."

57. Petitioner only provided information to the

Respondent that indicate d that his doctor had diagnosed him as a

"brittle diabetic" and that he needed to work a permanent day

shift. Petitioner did not provide Respondent with any

information regarding the limitations of any major life function

or any reason why Petitioner need ed to work the permanent day

shift, other than the mere diagnosis of diabetes.

58 . Even if diabetes has an adverse impact on a person's

life , such as causing migraines and depression, such conditions

do not automatically equate to a substantial limitation on a

major life activity. Cash v. Smith , 231 F.3d 1301, 1306 (11th

Cir. 2000); Collado v. U nited Parcel Service , supra . The

inability to work a certain shift is not a substantial

limitation o n the major life activity of working. (Presumably,

the inabil ity to work rotating shifts falls in the same

category.) Providing Respondent with a diagnosis only

indicating the need to work a particular shift d oes not give

rise to a "disability" as defined by the Rehabilitation Act or

the ADA so as to require Respon dent to provide Petitioner with

the requested accommodation. See concerning shift work , Smith

v. Federal Express Corporation , 2005 U.S. Dist. LEXIS 31268;

subsequent history at 2006 U.S. LEXIS 17960 (11 th Cir. Ga.

July 17, 2006); Mont - Ros v. City of West Miami , supra .

59 . If Petitioner intended to show a substantial

limitation on the major life function of working, his claim

fails because he testified that he was able to work so long as

he did not have to work a rotating shift. Proving a s ubstantial

limi tation on the major life activity of working requires that

an individual show he is unable to work in a broad class of

jobs. Rossbach v. City of Miami , 371 F.3d 1354, 1360 - 61 (11th

Cir. 2004). Here, Petitioner is able to work as a corrections

officer for any employer who does not require rotating shifts.

Even so, just as “police officer” is not a broad class of jobs,

neither is "c orrections officer . " Likewise, there is an even

broader class of jobs beyond working in the corrections field

that Petitioner could perform. For his condition to be a

“disability,” the employee must be precluded by his condition

from more than one type of job , even if the job foreclosed is

his job of choice. Cash v. Smith , supra .

60 . Even though Respondent had allowed Petitio ner and

other s to work a permanent shift in the past , without there

being a legal necessity to do so, discontinuing this practice is

not a violation of ADA, especially when Petitioner concedes, as

here, that he is unable to work rotating shifts, an essenti al

requirement for worki ng in the security area of this particular

employer’s jail. See H olbrook v. City of Alpharetta , 112 F.3d

1522, 1528 (11th Cir. 1997). In Holbrook , a newly appointed

police chief discontinued the practice of allowing a detective

wh o was visually impaired and unable to drive, from working on

certain kinds of cases , because he was unable to perform the

essential functions of his position. Even though a previous

police chief had allowed the restricted case load, the newly

appointed ch ief was not bound to allow the practice to continue

in the face of a bona fide job requirement .

61 . An employee’s condition has to be evaluated for ADA

purposes as manifested at the time of the adverse employment

action. Cash v. Smith , supra .; Browning v. Liberty Mut. Ins.

Co. , 178 F.3d (8th Cir. 1999) Cf ., Hilburn v. Murata

Electronics, Inc. , supra . Looking at the evidence presented at

hearing in the light most favorable to Petitioner, it does not

demonstrate disability . It was stipulated that Petitio ner is

diabetic . He proved that he currently takes multiple oral

medications for diabetes and other medical conditions, and his

testimony is credible that he was taking all these , or similar,

oral medications at all times material to this case , but the

ev idence does not show that he is currently dependent on

injectible insulin . It is also clearly Petitioner's belief that

he could not regulate his medication, food, and liquids if he

were rotated from a day shift to a night shift every four

months. Yet, he testified that he had consistently been on the

day shift for eight years, ever since he was diagnosed with

diabetes. Therefore, Petitioner’s "belief," sincere though it

may be, is of little evidentiary value. He did not produce any

evidence that he has tried to cope with rotating day to night

shifts for any portion of the period he has been diagnosed with

diabetes. He also did not produce evidence as to why he could

not properly space out his medications, food, and liquids

regularly at night, although it is possible for him to do so

during the day. He has had changes of medications and problems

regulating his medications, etc. even on the day shift , so any

current nexus between night shift, or rotating shift, work and a

predictable resultant health cri sis, which he was trying to

establish , is even more tenuous. Although Petitioner believed

he could not regulate his diabetes if rotated at four - month

intervals or placed on the night shift, he never pro vided his

employer with the required supportive medic al documentation to

that effect . A ccordingly, Respondent Employer LCSO had no

reason to view Petitioner as handicapped. Petitioner provided a

brief medica l diagnosis, which equates with, at best, proof of

an “impairment”, and at worst, equates with his o wn unsupported

belief, but he provided no medically documented limitations,

which would have equated with a “ substantial limitation on a

major life activity . ” 5/ As the court indicated in Robinson v.

Hoover Enterprises, LLC , U.S. Dist. Ct. N.D. Ga., Atla nta Div.,

1 6 Am. Disabilities Cases (BNA ) 328, 2004 U.S. Dist. LEXIS

25375, being under the care of a physician does little more than

establish that one suffers from a physical impairment. In

Warren v. Volusia Co., Florida , 188 Fed. Appx. 859 (11 th Cir.

2 006), a physician’s notations that the employee could only

perform light duty or sedentary jobs was not the equivalent of a

request for accommodation. Petitioner herein testified that he

could perform all the duties of the LCSO detention officer

position, but to do so might create a health crisis for him. He

provided no medical verification of his layman’s prognosis.

Finally, Respondent Employer never put him on the night shift.

Respondent Employer made no change in Petitioner's working

hours/shift and gave him four additional months to provide the

required supportive medical documentation to prove - up any

entitlement to an accommodation . Petitioner did not get such

documentation and elected to retire.

62. Significantly, Respondent was willing to provi de

Petitioner , and any other employee , with a reasonable

accommodation if the employee provided the requested detailed

information. Respondent even went an extra step to allow

Petitioner additional time on the day shift to gather the

necessary supporting data for his accommodation request.

63. Moreover, Petitioner did not suffer constructive

discharge as generally understood. To prove a constructive

discharge, one must demonstrate that working conditions were so

intolerable that a reasonable person in th at position would have

felt compelled to resign. The situation here, with the four

months' extension of a day shift , does not meet that standard.

See Durley v. APAC, Inc. , 236 F.3d 651, (11th Cir. 2000).

64. In the present case, Respondent did no t forc e

Petitioner to go to a rotating shift like the other 11 - 13

employees previously assigned to permanent shifts. At least for

“due process” purposes, r esignations of public employees are

presumptively voluntary, the presumption to be overcome only by

proof of coercion, duress, or deceit/misrepresentation of a

material fact. Hargray v. City of Hallandale , 57 F.3d 1560

(11th Cir. 1995). This case does not present a “due process’

issue, but there also are n either allegations , n or proof , of

coercion , und ue duress, deceit, or misrepresentation by LCSO in

this regard. 6/

65. Petitioner exercised his choice to resign rather than

to obtain additional information from either Dr. Gelin or

Dr. Flores or to otherwise provide information to Respondent

support ing h is request for an accommodation. 7/ The fact that

Respondent failed to react to Petitioner's letter of resignation

as Petitioner had hoped does not translate to intolerable

working conditions. Respondent had no obligation to coax

Petitioner into remaining employed.

66. In summation, Petitioner herein did not establish a

prima facie case of disability discrimination by Respondent’s

declining to immediately place him on a permanent day shift in

March - May 2005, because he is not “ disabled ” as defined by the

Florida Civil Rights Act (FCRA) , the Rehabilitation Act, or the

ADA. Petitioner also did not state a prima facie case of

discrimination , because his resignation was not an adverse

employment action of Respondent. Petitioner voluntarily

resigned.

67 . Pet itioner’s co mplaints about his posting for 18

months on the third - floor day shift fail for all the foregoing

reasons, but also for others. 8/ At the disputed - fact hearing

herein, it was not entirely clear that Petitioner attributed his

third - floor situatio n to handicap discrimination. A t the

disputed - fact hearing, Petitioner did not detail any particular

hardship at all arising from the "no food" rule on the third -

floor . He did attribute his 18 months' assignment on the third -

floor to "punishment" for bei ng allowed to work a permanent day

shift, but that is not the same thing as contending that the

employer intentionally discriminated against him due to an

impairment or handicap /disability . Furthermore, Petitioner’s

construction of events (that he was bei ng “punished” for a

handicap accommodation , the permanent day shift) is not credible

in light of the evidence as a whole, and specifically in the

face of evidence that a non - handicapped employee had also worked

there for at least 12 months. Also, Petition er testified he

could fulfill all requirements of a detention officer job

description, except rotating shifts. On the third - floor , he had

no rotating shift. He also testified that he coped with the

third - floor assignment's lack of a restroom better than the non -

handicapped employee, so it appears that the benefit he desired

(a day shift) was not, in any significant way , offset by the

lack of a restroom or snacks. It was not proven that Petitioner

clearly articulated his reasons for his request(s) for tra nsfer

from the third - floor to his superiors or ever clearly gave his

diabetes as a reason for a transfer request. The only

accommodation Petitioner has ever requested was to remain on a

day shift, and he was placed on a day shift on the third - floor.

In a ny case, it was not affirmatively established that any part

of Petitioner's 18 - month tour of duty on the third - floor

occurred less than 365 days before Petitioner filed his Charge

of Discrimination with FCHR on December 12, 2005. Therefore,

the third - floo r situation is barred from consideration herein by

Section 760.10 (11), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a fina l order dismissing the Petition for Relief.

DONE AND ENTERED this 2 5th day of January , 20 07 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 2 5th day of January , 20 07 .

ENDNOTES

1/ Respondent's Proposed Recommended Order represents that

Sheriff Daniels died on October 14, 2006, and that Gary Borders

became Acting Sheriff at that time.

2/ Petitioner presented figures showing the amount he believed he

had lost in retirement and social security benefits as a result

of his June 30, 2005, retirement. For a number of reasons,

these figures are flawed, but d ue to the recommendation in this

order, it is not necessary to discuss his figures or their

flaws .

3 / Petitioner understood “ Retirement’s” explanation, perhaps

incorrectly, to mean that he would only get one pay raise if he

worked another four month s but would get two raises if he

retired by July 2005. However, there is no evidence of

coercion, deceit, undue duress, or misrepre sentation of a

material fact , by anyone.

4/ Due to the First District Court of Appeal’s disagreement with

Kelley v. Bechtel Power Corp . , 633 F. Supp. 927 (S. D. Fla.

1986) and its interpretation of Bisbee v. Thatcher Glass Mfg.

Co. , F.A.L.R. 892 - A, 893 - A (FCHR 1981), it is not necessary to

distinguish those cases.

5/ Petitioner’s case is clearly distinguishable from Fraser v.

Goodale , 342 F.3d 1032 (7 th Cir. 2001). Therein, a “brittle

diabetic” described, in considerable detail, the meaning and

effect of that term, including her dependence on inject ed

insulin and essential major modific ations of a normal lifestyle

throughout a 24 - hour day, ( including di et, sleeping, naps,

monitoring blood sugar, etc. which she could document ) . Fraser

is further distin guished in Collado v. U.S. Parcel Service ,

supra at Finding of Fact 58 .

6 / See n. 3.

7 / T he undersigned acknowledges that some case law also supports

the premise that once an employee has identified a disability,

it becomes the employer’s duty to deter mine the best

accommodation which will not be unreasonable. C ases concerned

with this premise most often hinge on whether or not, after the

employee has made a prima facie case of disability to the

employer and the employer has responded by offering some type of

accommodation, the accommodation offered by the employer is (a)

not adequate and/or (b) the employee’s alternatively proposed

accommodation is unreasonable or an undue hardship on the

employer, given the employer’s situation on a case by case

basis . See Warren v. Volusia Co. , Florida , supra at Finding of

Fact 61 , and Holbrook v. City of Alpharetta, supra at Finding of

Fact 60 , holding that once a qualified employee asks for an

accommodation, the employer must make a reasonable effort to

determine t he appropriate accommodation. See also W. W.

Glassner, Inc. 257 F.3d 1249 (11 th Cir. 2001); Moses v. American

Nonwovens, Inc., 97 F. 446 (11 th Cir. 1996); and Wooten v.

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

However, it is not the employer’s duty to prove to itself

that an employee does have a substantially limiting impairment.

Herein, Petitioner would not respond to the employer’s attempt

to investigate in order to determine what, if any, accommodation

was appropriate. An employer’s duty t o produce an accommodation

for a substantially limiting impairment (disability) only arises

after the employee proves he has a substantially limiting

impairment (disability).

8 / Petitioner did not raise the issue of his long third - floor

assignment in h is Charge of Discrimination. Apparently, th is

concern arose during FCHR’s investigation of the constructive

termination allegations contained in the December 8, 2005,

Charge of Discrimination . However, the issue was acted upon in

FCHR’s Determination: No Cause and was specifically set out in

the Petition for Relief . Therefore, it falls under the broad

category of " handicap discrimination " which may be addressed in

this proceeding before DOAH. That said, having heard the

evidence concerning this period, any remedy a ppears to be barred

by the statute of limitation s as set out in the body of this

Recommended Order.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Glen W. Sellers

210 Jasper Street

Bushnell, Florida 33513

Linda G. Bond, Esquire

Rumberger, Kirk & Caldwell, P.A.

2 15 North Monroe Street

Post Office Box 10507

Tallahassee, Florida 32302 - 2507

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 Re commended Order should be filed with the agency that

will issue the final order in this case.