06-003532 David W. Dey vs. City Of Kissimmee Status: Closed Recommended Order on Monday, July 16, 2007.

Summary: Diabetes is not a per se disability, and the preponderance of the evidence did not show that diabetes substantially impaired major life activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID W. DEY, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3532

)

CITY OF KISSIMMEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on April 19 and 20, 2007, in

Kissimmee, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Edward Gay, Esquire

1516 E ast Concord Street

Orlando, Florida 32803

For Respondent: Leonard A. Carson, Esquire

Lucille E. Turner, Esquire

Carson & Adkins

2958 Wellington Circle North

Suite 200

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the basis of a handicap, in

violation of Section 760.10, Florida S ta tutes (2003).

PRELIMINARY STATEMENT

On March 16, 2006, Petitioner filed an Employment Charge of

Discrimination with the Florida Commission on Human Relations

(Commission). On August 14, 2006, the Comm ission issued a

Determination: No Cause.

On September 15, 2006, Pet itioner timely requested an

administrative hearing by filing a Petition fo r Relief with the

Commission. T he Commission referred the matter to DOAH to

conduct the hearing.

At the hearing, Petitioner testified, called four other

witnesses, and submitted 32 exhibits for admission into

evidence. Respondent called four witnesses and submitted

74 exhibits fo r admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the three - volume Transc ript of

the hearing filed with DOAH on May 18, 2007. Pursuant to an

order granting an unopposed motion to extend the time for filing

proposed recommended orders (PROs) , the parties timely filed

their res pective PROs on June 15, 2007.

FINDINGS OF FACT

1. Petitioner has been employed by the City of Kissimmee

(the City) from July 17, 1989 , to the present as a tel e -

communicator in the Communications Center of the Police

Department . Petitioner and his health care provider advised the

City sometime in 1995 tha t Petitioner is diabetic.

2 . Diabetes has impaired Petitioner 's work schedule and

his willingness to train other employees but has not handicap ped

Petitioner . The diabetes has not substantially limited

Petitioner in a major life activ ity and has not subs tantially

limited Petitioner from performing a class of jobs or broad

ran ge of jobs in various classes.

3 . Petitioner is able to care for himself. Petitioner

clothe s himself, bathe s , shave s , brush es his teeth , and comb s

his hair. Petitioner checks his o wn blood sugar level regularly

during waking hours .

4. P etitioner is able to perform other major life

activities. Those activities include walking, driving a

vehicle, performing manual tasks, seeing, speaking, hearing,

learning, talking, and performing t he duties of his occupation.

5 . Petitioner has walked for several years approximately

1.25 miles a day . Petitioner drives his own vehicle.

6 . Petitioner perform s manual tasks. Petitioner operates

a computer, though he has some difficulty doing so. Sev eral

months ago, Petitioner helped a friend hang an interior door.

Petitioner has also helped friends pai nt walls in recent years .

7 . Petitioner has difficulty with his uncorrected vision .

W ith reading glasses , however, Petitioner read s documents most

of the time .

8 . Petitioner uses a device identified in the record as a

CPAP machine to assist him in breathing at night . However,

Petitioner does not need to use the machine during the work day

to do his job.

9 . No health care provider has advised Respond ent that

Petitioner is disabled. Petitioner’s diabetic specialist is

Dr. Jose Mandry. Dr. Mandry did not tes tify at the hearing.

1 0 . Dr. Mandry informed Respondent that Petitioner has

diabetes in a note the City received on or about February 6,

1995 , w hen Respondent attempted to schedule Petitioner for a

night shift in the Communications Center . The note from

Dr. Mandr y did not indicate that Petitioner was handicapped

( disabled ) , or that any accommodations were required in order

for Petitioner to cont inue working. The note requested the City

to keep Petitioner on daytime shifts "if possible . " The note

did not indicate that a daytime schedule was medically

necess ary. Rather, the note indicated that working day shifts

w ould be “desirable.”

1 1. On Mar ch 23, 1995, Dr. Mandry provided another letter

t o the City regarding Petitioner's medical condition. The note

stated that Petitioner needed to “be accommodated with a normal

da ytime work schedule.”

1 2 . In July 1995, the City established a regular daytim e

work schedule for Petitione r. The City never regarded

Petitioner as disabled, and the daytime work schedule for

Petitioner was not an “ADA Accommodation.”

1 3 . The City employee who granted the request for a

daytime schedule was identified in the record as Police

Department Commander Johns. Commander Johns did not have

authority to provide an ADA accommodation.

1 4 . The authority to provide an ADA accommodation is

vested in the c ity m anager and c ity a ttorney. They make a final

determination of whether the City will provide an ADA

accommodation to a particular employee. The c ity m anager and

c ity a ttorney did not authorize the City to provide any ADA

accommodation to Petitioner.

1 5 . The daytime schedule granted to Petitioner is part of

Respondent’s gene ral practice and policy of work ing with

impaired employees and employees who have personal needs . The

policy attempts to help such employees with their schedules when

it is possible to do so without an adverse impact on the City’s

ability to p rovid e servi ces.

1 6 . Assuming arguendo that City employees had the

authority to provide ADA accommodations to Petitioner in the

absence of a formal determination by the c ity m anager and c ity

a ttorney, Petitioner relies on evidence of interactions between

City employe es and Petitioner in an attempt to show the City

provided Petitioner with ADA accommodations. The relevant

evidence involves two time periods. The first is the period

from June 4, 1996 , until June 5, 2002. The second is the period

from June 5, 2002, thr ough March 16, 2006, when Petitioner filed

the Charge of Discrimination with the Commission. The record

evidence does not support a finding that City employees provided

an ADA accommodation to Petitioner.

1 7 . T he daytime work schedule authorized in 1995 remained

in effect until June 4, 1996, when Dr. Mandry advised the City

that Petitioner could work up to 12 hours a day, as long as the

12 hours were daytime hours. Between 1996 and June 5, 2002, the

City allowed Petitione r to work overtime when he wanted to,

based on Petitioner's self - assessment of his physical condition .

1 8 . Petitioner acknowledged the overtime schedule in a

memo that he wrote to Lieutenant Donna Donato on June 5, 2002

(the memo) . The memo described Petitioner's plans for his

fu ture wo rk schedule.

19 . The memo stated that Petitioner was providing notice

“that due to self - assessed health issues” Petitioner intended to

restrict the amount of his overtime in the future. (emphasis

added) . In relevant part, the memo advised the City that

Petitioner did not intend to “demand the imposition of the

restrictions [on his work schedule] as addressed by City

Management in J une of 1995.” Instead, the memo advised that

Petitioner would address his concerns “to the best of [his]

abilities by modify ing [his] agenda. . . . "

2 0 . Petitioner list ed a number of items that may be fairly

described as terms or conditions for when and under what

circumstances Petitioner would work overtime. Petitioner

provide d no new medical evidence to support a finding of medical

necessity for the terms and conditions that Petitioner

prescribed in the memo . Petitioner acknowledged that his

concerns were based on “self - assessed health issues” and

asserted that “no further documen tation should be necessary.”

2 1 . Petitioner did provide a note from Dr. Ma ndry on

June 20, 2002. The note states:

The following is a letter as requested by

the above - captioned patient [David Dey]. As

you know, he suffers from diabetes and also

requires insulin for his control. David

needs to mo nitor glucose levels and follow

fairly stable meal patterns in order to try

to achieve good control of diabetes and

avoid complications. It would certainly be

to his advantage and much preferable if he

could have a stable work shift where he

could regulat e his meals and his injections

properly. (emphasis added)

Respondent's Exhibit 18 ( Hereinafter R - 18 , etc. ) .

2 2 . During the second period of time between June 5, 2002,

and the Charge of Discrimination, the City hired a new manager

for the Communications Center. In July 2002, the City hired

Ms. Jean Moe to manage the Communications Center at the Police

Department, and Ms. Moe remains responsible for the supervision

and management of Petitioner. Ms. Moe is diabetic.

2 3 . Ms. Moe met with Petitio ner on A ugust 6, 2002. The

two discussed the issues Petitioner raised in his memo and

agreed on a number of items outlined in Ms. Moe’s memo of

August 6, 2002 (the Moe memo) . The Moe memo provides in

relevant part :

Beginning today, August 6, 2002 you will

only work your twelve (12) hour shift

assignment [sic] . You will not volunteer or

be assigned any overtime. You are also no

longer on the standby schedule. Here you

had some concern on the overtime issue,

however, as stated by your doctor in writing

he is re commending that you do not work any

extra hours. Should he feel your health

improves and he authorizes your overtime, I

will take his note under advisement. That

does not mean I will immediately give you

overtime but will review his letter and his

sugges tion.

Along with the above issues, your supervisor

has been advised under no circumstances will

you miss your assigned lunchtime or breaks,

these are important to keep you regulated on

your medication per your doctor.

You also requested you be allowed to lift

your feet after working several hours, this

will also be under consideration when I

receive a note from your doctor stating it

would be another requirement for health

reasons.

R - 19.

2 4 . In 2004, the City Police Department considered changes

to the normal work schedule for employees in th e Communication

Center. The City advised employees, including Petitioner, that

the City would require employ ee s to rotate work shifts between

daytime and night shifts .

2 5 . O n July 14, 2004, Petitioner wrote to the City Hu man

Resources Department and requested a “final, permanent

accommodation . . .” for daytime work only. Petitioner provided

copies of documents from Dr. Mandry , which did not include a

medical opinion that Petitioner is disabled .

2 6 . Assistant Hum an Resources Director Andre a Walton wrote

to Dr. Mandry on July 15, 2004 , and requested clarification of

his letters in order for the City to arrange an appropriate

schedule for Petitioner. Ms. Walton specifically inquired a bout

the possibility of Petitio ner 's w orking a rotating work schedule

and asked Dr. Mandry to cla rify Petitioner's ability to work

overtime. The City wanted Dr. Mandry to clarify previous

statements that Petition e r could work overtime as a parking

enforcement specialist but that Petiti oner's overtime work as a

tele - com municator must be limited .

2 7 . Dr. Mandry responded to Ms. Wal ton on July 26, 2004.

The response explained that Petitioner was able to work in a

rotating schedule and for unspecified amounts of overtime if

control is opt imal and under ideal circumstances . D r. Mandry

was unable at that time to give more specific information to the

City. He explained :

With regards to some of the other issues,

again, it is very difficult, if not

impossible, for me to give you a specific

a nswer, and I would rather you talk to

Mr. Dey specifically so that he can let you

know what his current limitations are.

R - 27.

2 8 . On August 3, 2004, Ms. B eth Stefek, the d irector of

Human Resources for the City , wrote to Petitioner and explained

that the C ity was willing to work with Petitioner to arrive at

an appr opriate work schedule. Ms. Stefek did n ot indicate that

the City considered Petitioner to be disabled.

29 . Sometime after August 3, 2004, Petitioner experienced

further difficulties in c ontrolling his diabetes. On August 10,

2004, Dr. Mandry wrote to t he City again. Dr. Mandry told the

City:

I just saw David today who seems to be

having some further difficulties with his

health and his control of diabetes. At this

time, I have reviewed his records, and I

think it would clearly be in his best

interest that from now on, he work only on a

stable daytime work shift only [sic] . He

certainly is not doing well when he tries to

do overtime, and traditionally in the past

has always become more complicated and his

health has deteriorated whenever he tries to

do either night shifts or overtime shifts.

I have, therefore, at this time, recommended

that David should not be allowed to work any

overtime and/or nighttime shift. Of course,

he needs to have accommodations for meals

and monitoring or blood sugar levels as

necessary, and he needs to have access to

food in case he becomes hypoglycemic.

R - 29.

3 0 . The difficulties Petitioner experienced in controlling

his diabetes were attributable to an increase in stress that

Petitioner experienced between June and September 9, 2004.

Petitioner's father died in June 2004, and three hurricanes

impacted Petitioner’s home from August through September 2004 .

The hurricanes also increase d stress at work due to increased

demand on City services. On August 15 , 2004, Petitioner advised

Ms. Moe that he was intentionally running his blood sugars

“higher than desired” at wor k to “offset and reduce the

possibility of a hypoglycemic situation.”

3 1 . Toward the end of August 2004, the City moved

Petitioner to the night shift in the Communications Center.

Petitioner worked the night shift for a few nights.

3 2 . On September 5, 2004 , Petitioner advised Ms. Moe that

he was available to be part of a voluntary group of dispatchers

to work catastrophic disasters like hurricanes if she decided to

form the group . On or about Sep t ember 9, 2004, while Petitioner

was at home, Petitioner fell uncon s c ious and was transported t o

the hospital for treatment.

3 3 . On September 16, 2004, Dr. Mandry wrote to the City

and advised that it was necessary for Petitioner to refrain from

working " any overtime shifts and/or nighttime shifts.” On or

about September 21, 2004, Petitioner returned to work , and the

City placed Petitioner on a da yt ime work schedule through the

remainder of 2004.

3 4 . On January 6, 2005, Ms. Moe advised Petitioner the

City needed Petitioner to work the night shift for a few nights.

However, the City was able to satisfy its needs without placing

Petitioner on the n ight shift at that time.

3 5 . Petitioner r esponded to Ms. Moe on January 6, 2005, by

stating that he was going to begin a search within the City for

another position that woul d meet his medical needs. On

January 20, 2005, Petitioner inquired about an ope ning within

the City for a parking enforcement specialist. On January 25,

2005 , Petitioner informed Ms. Moe and others at the City that he

would not consider either the p arking enforcement position or a

community service o fficer (CSO) position that had be come

available because both jobs contradicted his " medical

requirements.”

3 6 . On April 4, 2005 , Ms. Moe sent a memo to Petitioner

advising him that the City would place Petitioner on a list

identified in the record as the call - back list for emergency

back - up in the Communication Center. Ms. Moe specified that the

placement of Petitioner on the call - back list was subjec t to the

work conditions previously established in July 1995 by Commander

Johns .

3 7 . Ms. Moe advised Petitioner that he would be placed on

the call - back list effective April 20, 2005, but only in those

weeks when he was scheduled to work 33 hours so that his work

week did not exceed 40 hours . She assured Petitioner that

absent some extraordinary circumstances, the City would not call

Petiti oner back to work a night shift and would not schedule

Petitioner on a ca ll - back that would result in Petitioner

working more than 40 hours in a work week.

3 8 . The memo from Ms. Moe expressl y indicated that the

City did not consider the Petitioner to be A DA disabled.

Ms. Moe told Petitioner to advise her if he thought there was

some medical or ADA reason why he could not b e on the call - back

list.

39 . On April 13, 2005, Attorney Edwar d R. Gay wrote to the

City on behalf of Petitioner. Mr. Gay stated tha t Petitioner

believed there was a medic al reason that prevented Petitioner

from being placed on the call - back list.

40 . On April 21, 2005, Attorney Lucille Turner, the City’s

special la bor counsel, r esponded to Mr. Gay. Ms. Turner

provided Mr. Gay with a copy of the City’s April 4, 2005 , memo

detailing the call - back restriction s applicable to Petitioner .

Ms. Turner repeated that it was not the City's intent to call

Petitioner back to work a night shift or to schedule Petitioner

to work more than 40 hours a week in the absence of “some

extraordinary circumstance . "

4 1 . The City , through it s counsel, expressly advised

Petitioner that the City had nev er undertaken a formal review of

whether Petitioner should be classified as a person prot ected by

the ADA. I nstead, the City had informally worked to deve lop a

work schedule for Petitioner that takes into account the

information provided by Petitioner's hea lth care providers.

4 2 . The City provided Petitioner with written guidance

concerning the procedure for Pe titioner to follow to seek a

classification from the City as ADA disabled. In relevant part,

t he letter advises:

If [Petitioner] believes that his diabetes

(or any other medical condition) requires

the City to not include him on the call back

list, or to change his work schedule, he

should provide the City with further

information in support of his request. This

should include information about the legal

basis for his disability claim . . .

[keeping in mind case law cited earlier in

the letter indicating diabetes is not a per

se disability]. . . . The City will then

review the information to determine whether

Mr. Dey has a disability as defined by the

ADA, and, if so, what accommodations can be

reasonably made.

R - 54, at 3.

4 3 . Petitioner did not ask to be classifi ed as disabled.

Rather, Dr. Mandry wrote to t he City on June 8, 2005 .

Dr. Mandry stated that he w as writing at the request of

Petitioner. In relevant part, Dr. Mandry exp lained:

Mr. Dey is by no means disabled , and he can

clearly work and satisfy the capacities of

his job as long as there is some stability

involved in it. (e mphasis added)

R - 1.

4 4 . In March and August 2005, the City did not select

Petitioner to fill respective vacancies for a shift supervisor

in the Communication Center a nd a parking enforcement specialist

for the City. Neither action constituted an adverse em ployment

action against Petitioner.

4 5 . The job duties for the vacant shift supervisor i n

March 2005 required the su ccessful applicant to work night

shifts . Petiti on er did not apply for the shift supervisor

position.

4 6 . When the City posted the notice of vacancy for the

shift supervisor, Peti ti oner requested Ms. Moe to provide

Petitioner with information about the job requirements for the

position. Ms. Moe respon ded on March 14, 2005 , and advised

Petit ioner that the position was night shift duty and required

the supervisor to train other employees . On March 23, 2005 ,

Petitioner wrote to Ms. Moe indicating he had concluded that

multiple aspects of my physical disa bility are contradictory to

the requiremen ts of the supervisory position and that he had

elected not to apply for the position.

4 7 . I f Petitioner were to have applied for the shift

supervisor position, Petitioner was not qualified to perform the

essential requirements of the position . Petitioner was unable

or unwilling to work the night shift and was unable or unwilling

t o train subordinate employees.

4 8 . The Communications Center receives 911 c alls from the

public. Employees receive calls and dispatch them to the police

department and fire department 24 hours a day .

49 . T he work schedule at the Communication Center is

div ided into two shifts. The day shift begins at 6 a.m. and

ends at 6 p.m. The night shift begins at 6 p.m. and ends the

followin g day at 6 a.m.

5 0 . Approximately four to six employees work each 12 - hour

shift in the Communications Center. However, only one

supervisor works each shift.

5 1 . A shift supervisor oversee s the duties of all

employees at the Communications Center and train s , advise s , and

assist s subordinates . Supervisors are routinely required to

work overtime , perform on - call duty, fill in for other shift

s upervisors , and h old over for indefinite times at the end of a

shift to handle ongoing calls.

5 2 . Petitioner claims to suffer from hypoglycemic episodes

in which h e becomes unresponsive and dysfunctional. Petitioner

has previously asked on two separate occasions to be relieved of

re sponsibility to train personnel because it was too stressful

for him. In each instance , th e City relieved Petitioner of any

training responsibilities.

5 3 . In August 2005, Petitioner applied for a job opening as

a parking e nfor cement specialist for the City . The City

selected a nother candidate identified in the record as

Ms. Evelyn Thurman.

5 4 . The selection of Ms. Thurman over Petitioner to fill

the vacant position of parking enforcement specialist was not an

adverse employment action against Petitioner. Ms. Thurman was

more qualified by training and experience.

5 5 . When the City selected Ms. Thurman to fill the vacant

position of parking enforcement specialist, Ms. Thurman had

24 years of law enforcement and security ex perience in various

agencies. From 1980 until 1996, Ms. Thurman worked as a c rime

s cene i nvestigator for the City of Mia mi Police Department ,

where she received numerous commendations, and her performance

evaluations rated her as an above average employee. Ms. Thurman

also worked at the Sheriff’s Office in Tampa, Florida , and in

Security at the Florida Department of the Lo t tery.

5 6 . Petitioner was unable to meet the essential functions

of the job requirements for a parking enforcement specialist. A

parking enforcement s pecialist routinely works alone and is

required to work at night. The nature of the job does not

permit the type of schedule Petitioner requires.

5 7 . The work schedule of a parking enforcement specialist

is not limited to daytime hours that do not exceed 33 to

40 hours a week. A parking enforcement specialist may be

required to work evening shifts, long hours, overtime, and

holidays.

5 8 . A parking enforcement specialist also must adjust his

or her work schedule when needed . A parking enforcement

specialist also must be available during emergencies to

alleviate calls fo r service from patrol officers.

59 . A parking enforcement specialist works alone.

P etitioner suffers f rom hypoglycemic episodes in which he

becomes unresponsive and dysfunctiona l. The episodes can occur

at any time, and Petitioner prefers not be alone on the job if

possible.

60 . On Octo ber 31, 2005, Ms. Moe issued a verbal reprimand

to Petitioner for insubordination. The verbal reprimand is not

an adverse employment action against Petitioner. The City did

not reduce Petitioner's pay and did not change the terms,

conditions, or privileg es of Petitioner's employment as a result

of the reprimand.

6 1 . In preparati on for H urricane Wilma earlier in

October 2005 , Ms. Moe sent an e - mail to employees in the

Communication Center instructing them to come to work the

following day with the suppli es they would need if events

required them to stay at the Communication Center during the

hurricane (the Moe email) . Petitioner and most of the other

employees did not bring their hurricane supplies with them when

they reported to work the morning after t he Moe email.

6 2 . The City sent Petitioner and the other employees home

to fetch their supplies and did not impose a time limit for the

task. Petitioner took about 90 minutes to get his supplies and

return to work , and the span included the regular lunch hour .

Th e time he took was not an issue of concern and did not provide

a b asis for the verbal reprimand.

6 3 . Petitioner did not eat lunch during the time he

retrieved his supplies . Later in the day, Pe titioner requested

a meal break, and his supervisor denied the request . Peti tioner

took a second meal break.

6 4 . On October 23, 2005, Ms. Moe delivered to Petitioner a

Notice of Intent to Discipline for in subordination. On

October 31, 2005, Ms. Moe issued an Oral Warning to Petitioner .

6 5 . Pet itioner grieved the verbal reprimand . During the

gri evance procedure, the City offered to rescind the warning to

resol ve the grievance. Petitioner rejected the offer as

unsatisfactory unless the City also destroy ed the record of the

discipline. The City advised Petitioner that it could not

destroy the document because the document wa s a public record.

CONCLUSIONS OF L AW

6 6 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to Chapter 760,

Florida Statutes (2005), 1 the Florida Civil Rights Act (FCRA).

§§ 120.569 and 120.57(1), Fla. Stat. (2006 ). DOAH provided the

parties with adequate notice of the final hearing.

6 7 . S ubs ection 760.10(1)(a) makes it an unlawful

employment practice for an employer to discriminate again st a

person because of the person’s disability . Florida courts

construe disability discrimination actions under the FCRA in

conformity with the Americans with Disabilities Act, 42 U.S.C.

§ 12101, et. seq . (ADA). Lenard v. ALPHA, A Beginning, Inc. ,

945 S o. 2d 618 (Fla. 2 d DCA 2007). Judicial decisions by

federal courts interpreting the ADA are controlling in this

proceeding. Wimberly v. Securities Technology Group, Inc . , 866

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

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

Electric Coop., Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997).

6 8 . Petitioner has the burden of proof in this proceeding.

Petiti oner must show by a preponderance of the evidence that he

has a stat utorily covered disabi lity; he is a qualified

i ndividual; and Respondent discriminated against Petitioner

through an adver se employment action based on Petitioner's

disability. Lenard , 945 So. 2d at 618; Gordon v. E.L. Hamm &

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

69 . A preponderance of the evidence does not support a

finding that Petitioner is disabled within the meaning of the

ADA and FCRA. It is undisputed that Petitioner is diabetic.

However, there is insufficient evidence to show that the

impairment satisfies the legal test of a dis a bility.

70 . As a general rule, a physical or mental impairment is

not automatically a "disability" under the ADA. Toyota Motor

Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 195, 122 S. Ct. 681,

151 L. Ed. 2d 615 (2002); Albertson's, Inc. v. Kirkingburg ,

527 U.S. 555, 565 - 66, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999 );

Wimberly , 866 So. 2d at 147. In order for an impairment to rise

to the lev el of a disability , the impai r ment must substantially

limit a major life a c tivity of the peti tioner. Albertson's ,

527 U.S. at 565; Wimberly , 866 So. 2d at 147.

7 1 . Major life activities include activities such as self -

care, manual tasks, walking, seeing, hearing, speaking,

br eathing, learning, and working. 29 C . F . R . § 1630.2(i). An

impairment "substantially limits" a major life activity if it

prevents a petitioner from performing a major life activity that

the average person in the general population can perform or

significantly restricts the co n dition, manner or duration of a

major life activ ity as compared to the condition, manner , and

duration under which the a v erage person in the general

population can perform the same activity. 29 C.F.R.

§ 1630.2(j)(1) (2005).

7 2 . A preponderance of the evidence does not sho w that

diabetes substantially limits Petitioner's ability to perform a

major life activity. The evidence shows that Petitioner is able

to care for himself, perform manual tasks, walk, see, hear,

speak, breathe, learn, and work.

7 3 . D iabetes does not significantly restrict the abilit y

of Petitioner to perform either a class of jobs or a broad rang e

of jobs in various classes when compared to the average person

having comparable training, skills , and abilities. The

i n ability to perform a single, particular job is not a

substantial lim itation o n the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i) ; Lenard , 945 So. 2d at 618; Dupre v.

Charter Behavioral Health Systems of Lafayette, Inc. , 242 F.3d

610, 611 - 612 (5 th Cir. 2001).

7 4 . Evidence that diabetes limits Petitioner to d ay time

shifts, either prevents or limits overtime, and requires breaks

to test his b lood sugar and take sustenance does not satisfy the

requirements for a disability. See , e.g. , Colwell v. Suffolk

County Police Department , 158 F.3d 635, 644 - 45 (2d cir. 19 98)

( medical restrictions on work schedule, including days only ,

indoors only , limited overtime , no la te or rotating shifts, and

no stress and confrontation, was in sufficient to show police

officer recovering from cerebral hemorrhage was unable to work a

c lass or broad range of jobs , and officer was not substantially

limited in major life activity of working ).

7 5 . A preponderance of the evidence does not support a

finding that Petitioner is disabled because Respondent regarded

Petitioner as disabled. See 42 U.S.C. § 12102(2)(C) ( person

mee ts s tatutory requirements for disability if employer regard s

person as disabled ) . The purpose of this provision is to cover

individuals "rejected from a job because of the 'myths, fears

and stereotypes' associated with d isabilities.” 29 C . F . R . 1630,

App. § 1630.2(l) ; School Bd. of Nassau Cty. v. Arline , 480 U.S.

273, 284, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987).

7 6 . A preponderance of the evidence shows that Respondent

did not regard Petitioner as disabled. The City consistently

told Petitioner the City did not regard him as disabled and

advised Petitioner of the need for a formal determination by the

c ity m anager and c ity a ttorney in order for Petitioner to obtain

an ADA disability and accommodation .

7 7 . Assuming a rguendo that the impairment of diabetes

renders Petitioner disabled within the meaning of the ADA and

FCRA, a preponderance of the evidence does not support a f inding

that Respondent based an adverse employment action on

Petitioner's disability. I t is und isputed that Petitioner did

not apply for the promotion to shift supervisor. The failure to

apply for a promotion precludes a prima facie showing of

discrimination. Pritchard v. Office Max, Inc. , 2000 U.S. App.

Lexis 437 (6 th C ir. 2000); Allen v. Michiga n Department of

Corrections , 165 F.3d 405, 410 (6 th Cir. 1999).

7 8 . A preponderance of the evidence shows that Petitioner

was not qualified to perform the esse ntial functions of the job

of shift supervisor with or without reasonable accommodations

within the meaning of 42 U.S.C. Section 12112(a). Wood v.

Green , 323 F.3d 1309, 1312 (11th Cir. 2003); Cramer v. Florida ,

117 F.3d 1258, 1264 (11th Cir. 1997). It is undisputed that the

job opening at issue was one for the night shift. It is also

undisputed th at Petitioner was unwilling t o work the night

shift . Even if Petitioner were willing to work the night shift,

Petitioner is unwilling to train employees. It is undisputed

that the su pervisor is required to train employees.

79 . A preponderance of the ev idence does not support a

finding that Resp ondent discriminated against Petitioner by

selecting Ms. Thurman over Petitioner in August 2005 .

Petitioner wa s not a qualified employee able to perform the

essential functions of the job with or without reasonab le

accommodations within the meaning of 42 U.S.C. Section 12112(a).

The parking enforcement specialist position required a person

able to work nights and extended hours when required.

Petitioner is unable, or unwilling, to comply with those

requirements. Wood v. Green , 323 F.3d 1309, 1312 (11th Cir.

2003); Cramer v. Florida , 117 F.3d 1258, 1264 (11th Cir. 1997).

8 0 . A preponderance of the evidence does not support a

finding that the alleged disability made a difference in

Respondent’s decision to select Ms. Thurman over Petitioner .

The evidence does not show that Respondent would have selected

Petitioner “but for” the alleged disability. McNely v. Ocala

Star - Banner Corp. , 99 F.3d 1068, 1076 (11 th C ir. 1996) . Rather,

the evidence shows that Respondent selected Ms. Thurman be cause

of her extensive law enforcement experience , which was more

directly related to the enforcement functions of the job.

8 1 . A preponderance of the evidence does not support a

finding that the verbal reprimand of Petitioner con stituted an

adverse employment action . Not all conduct by an employer that

negatively affects an employee constitutes adverse employment

action. Hooks v. Bank of America , 183 Fed. Appx. 833; 2006 U.S.

App. Lexis 11354 (11 th Cir. 2006); Davis v. Town of Lake Park ,

245 F.3d 1232, 1238 (11 th Cir. 2001). The verbal reprimand did

not result in a serious and material change in the terms,

condition s, or privileges of employment. Davis , 245 F.3d

at 1239. Moreover, the evidence is insufficient to show that

Res pondent would not have disciplined Petitioner but for the

alleged disability. McNely , 99 F.3d at 1076 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing the Petition for Relief.

DONE AND ENTERED this 1 6 th day of July 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of J uly 2007.

ENDNOTE

1/ All statutory references are to Florida Statutes (2005)

unless otherwise stated.

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

Edward Gay, Esquire

1516 East Concord Street

Orlando, Florida 32803

Leonard A. Carson, Esquire

Lucille E. Turner, Esquire

Carson & Adkins

2958 Wellington Circle North

Suite 200

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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.