09-003830 E. Morris Coley vs. Bay County Board Of County Commissioners Status: Closed Recommended Order on Thursday, December 31, 2009.

Summary: The evidence did not demonstrate handicap (diabetes) discrimination because Respondent had provided reasonable accomodation to Petitioner, including a failed transfer to less strenuous work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E. MORRIS COLEY, )

)

Petitioner, )

)

vs. ) Case No. 09-3830

)

BAY COUNTY BOARD OF COUNTY )

COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Diane

Cleavinger, Administrative Law Judge, Division of Administrative

Hearings, on September 29, 2009, by video between Pensacola and

Panama City, Florida.

APPEARANCES

For Petitioner: Cecile M. Scoon, Esquire

25 East 8th Street

Panama City, Florida 32401

For Respondents: Reynaldo Velazquez, Esquire

Velazquez Law Firm, P.A.

100 Almeria Avenue, Suite 340

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of an unlawful

employment action.

PRELIMINARY STATEMENT

On January 16, 2009, Petitioner filed a Complaint of

Discrimination with the Florida Commission on Human Relations

(FCHR). The Complaint alleged that Petitioner had been

subjected to an unlawful employment practice based on his

handicap (diabetes) when he was not offered or provided adequate

reasonable accommodations for his handicap and was eventually

terminated from his employment with Respondent.

Petitioner’s Complaint was investigated by FCHR. On

June 15, 2009, FCHR issued a determination of no cause on

Petitioner’s Complaint. Petitioner disagreed with FCHR’s

determination and filed a Petition for Relief. The Petition for

Relief was based on the same allegations as the original

Complaint. Subsequently, the Petition was forwarded to the

Division of Administrative Hearings.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of seven additional witnesses.

Petitioner also offered ten exhibits into evidence. Respondent

presented the testimony of two witnesses and offered twelve

exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on November 20, 2009. Respondent filed a Proposed

Recommended Order on November 15, 2009.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of Chapter

760, Florida Statutes.

2. Petitioner has had diabetes since his youth and

requires regular insulin and other medications for his

condition. However, even with medication, Petitioner

experiences a variety of symptoms due to low or high blood

sugar. At the time relevant to this proceeding, Petitioner’s

symptoms ranged from mild to severe and included periods of

disorientation, faintness and passing out.

3. Around October 1986, Petitioner was hired by Bay County

(County) as an Equipment Operator. In that position, he was

required to drive trucks. At the time of his employment, the

County was aware of Petitioner’s diabetes. However, the

evidence was not clear that the County was aware of the severity

of Petitioner’s diabetic symptoms at the time of his hire or

that Petitioner’s diabetes might have been severe enough to

constitute a handicap at the time of his hire.

4. Unfortunately, Petitioner had two accidents during his

tenure as an Equipment Operator. Petitioner’s first accident

occurred in 1989 and resulted in a reduction of pay.

Petitioner’s second accident occurred in 1990 and led to his

demotion from the Equipment Operator position.

5. After his demotion, Petitioner assumed the position of

Maintenance II with the County. In October 2005, the County

changed the title of the Maintenance II position to Senior

Maintenance Worker. Under either title, the duties of the

maintenance position required heavy physical labor outdoors.

The duties included shoveling, lifting, road work and ditch

work. Such work was performed in all types of weather

experienced in North Florida, including high heat conditions.

Petitioner remained in the Senior Maintenance Worker position

until December 2, 2007.

6. At some point around early 2005, during Petitioner’s

employment as a maintenance worker with the County, his diabetes

became a handicap that impacted his major life functions.

Petitioner experienced many episodes where he became

uncooperative, faint and/or disoriented because of his diabetes.

Some of the episodes occurred without warning when Petitioner

would become uncommunicative, begin wandering, or pass out.

Other episodes had some warning when Petitioner would report

that he felt ill and needed to rest or take medication. The

evidence demonstrated that Petitioner’s supervisors and co-

workers were aware of his diabetic condition and would assist

him in recuperating from these hypoglycemic or other diabetic-

related episodes. Additionally, although the record is not

clear, there was some evidence that summer heat in combination

with strenuous labor exacerbated Petitioner’s ability to control

his diabetic symptoms. On the other hand, there was some

evidence that indicated Petitioner could experience symptoms

from his diabetes under any environmental or working conditions.

In 2005, the episodes were significant enough for the County to

require Petitioner to undergo a medical examination to assess

his fitness to safely perform his duties as a maintenance

worker. At that time, the doctor recommended that Petitioner

learn to control his diabetes better and be monitored for

several months to see if Petitioner gained control of his

diabetic episodes. Significantly, the doctor did not find

Petitioner unfit to perform his duties as a maintenance worker.

7. Petitioner was never denied a break that he needed as a

result of his diabetes and was not disciplined because of his

diabetic episodes. Indeed, throughout Petitioner’s employment

as a maintenance worker, the County reasonably accommodated

Petitioner’s diabetic condition and, as needed, allowed him to

sit in the shade, eat, rest, test his blood sugar levels, and/or

take medications. County supervisors provided Petitioner candy

bars or soft drinks to help resolve his diabetic episodes,

allowed Petitioner to take unscheduled breaks, leave work early

because of his diabetes, and, at least once, provided a County

vehicle to transport Petitioner to his home to get medications.

8. Throughout the years of his employment with the County,

Petitioner submitted job interest forms to the County. The job

interest forms did not demonstrate that there were job openings

or positions available at the time Petitioner expressed an

interest in those jobs. The jobs Petitioner expressed an

interest in were equipment operator, heavy equipment operator,

lab field technician, dump truck driver, parks maintenance

worker, traffic sign technician, and water treatment plant

operator trainee.

9. Petitioner was interested in the positions identified

in the job interest forms because he wanted to better himself

professionally. Importantly, Petitioner did not pursue the jobs

identified in the various job interest forms he submitted as

reasonable accommodations for his diabetes. The fact that the

County’s doctor indicated in a 2005 medical examination and

report assessing Petitioner’s fitness for duty that work under

less strenuous conditions might be warranted should Petitioner

not gain better control of his diabetes does not demonstrate

that Petitioner requested or required transfer to another

position in order to reasonably accommodate his diabetes.

Indeed, the documentary evidence demonstrated Petitioner did

gain control over his diabetic episodes in 2006 and 2007 with

reports of such episodes being substantially reduced and one

doctor, in 2007, advising the County that Petitioner could drive

a truck as long as he monitored his blood sugar adequately. The

evidence did not demonstrate that Petitioner sought transfer to

a lighter-duty position as a reasonable accommodation until late

2007 as described later in this Recommended Order.

10. Moreover, all but one of the job interest forms

Petitioner submitted during his employment with the County

sought reemployment to the equipment operator position from

which he was demoted. All of these positions required driving

or operating machinery. They all required heavy physical

exertion and lifting between 45-to-90 pounds. All positions

also required exposure to the heat from the sun and exhaust from

machinery. However, the evidence demonstrated that these

positions were not as strenuous as the maintenance position that

Petitioner held. These positions were also promotions from his

maintenance worker position. Additionally, Petitioner offered

no evidence that his driving had improved or that he was

qualified to operate heavy equipment or drive trucks given his

insulin-dependent diabetes and the severe symptoms that he

experiences as a result of his diabetes. In fact, since

Petitioner’s symptoms included disorientation, faintness and

passing out, it would have been negligent for the County to

allow Petitioner to operate trucks or other heavy equipment. In

short, none of the equipment operator/driver positions

constituted a reasonable accommodation for Petitioner.

11. As for the other jobs of Laboratory Analyst I, Parks

Maintenance Worker, Traffic and Sign Technician or the Water

Treatment Plant Operator Trainee positions that Petitioner

expressed an interest in, Petitioner did not know the minimum

qualifications for these positions and did not offer any

evidence that he was qualified for such positions. Similarly,

Petitioner offered no evidence that he sought these positions as

reasonable accommodations for his diabetes. Additionally,

Petitioner’s interest in these jobs was expressed prior to 2007

or 2008, well outside the relevant time period for purposes of

this discrimination claim.

12. In September 2007, Petitioner provided the County a

Family Medical Leave Act certification from Dr. Steven Wise that

stated he could perform all of the essential functions of the

maintenance worker position he held. The doctor’s notes do not

state that he is unable to perform the duties of his maintenance

worker position under current working conditions. In fact,

Petitioner never gave the County any document that stated he

could not perform the duties of the maintenance worker position

and needed a less strenuous and hot job in order to accommodate

his diabetes.

13. On October 18, 2007, Petitioner conducted himself in a

rude, combative, and extremely argumentative manner during a

County-sponsored Diabetes Awareness Seminar. As a result,

Petitioner was suspended without pay for one day.

14. On November 1, 2007, Petitioner erupted into a

profanity-laced tirade at the workplace only one week after

serving the suspension for his outburst during the County’s

Diabetes Awareness Seminar. Petitioner gestured his middle

finger at a co-worker, threatened to beat an employee’s a _ _,

and told the co-worker f_ _ _you, “if you stand up I will kick

_ _head.” Petitioner directed his threats and profanity at co-

workers and supervisors in response to another person who had

parked their vehicle improperly and blocked or interfered with

Petitioner’s ability to move his parked vehicle.

15. At the time, Petitioner was undergoing a change from

insulin shots to a continuous insulin pump. Such a change

requires a period of adjustment in order for the pump to provide

the correct dose of insulin to the user. There was no evidence

that the County was aware of the change in Petitioner’s insulin

regimen at the time of these outbursts. Additionally, the

evidence was unclear that the change in Petitioner’s insulin

regimen caused either of these outbursts although such behavior

is consistent with a hypoglycemic reaction.

16. As a result of Petitioner’s behavior, the County

recommended his termination. Notably, such aggressive outbursts

could have led to any employee’s termination, irrespective of

whether the employee was handicapped or not, since the ability

to get along with co-workers is essential to any working

environment. Petitioner was provided a pre-termination hearing

prior to the County making a final decision on his recommended

discharge.

17. During Petitioner’s pre-termination hearing, he

explained that his profanity-laced outburst resulted from a low

blood sugar episode and that he felt it was due to the changes

he was undergoing in his insulin regimen. Petitioner’s spouse,

who is a nurse, also explained his diabetic condition to the

County Manager. Petitioner also submitted a note from his

physician, Dr. Steven Wise, stating that a “job requiring less

heavy physical exertion” would help Petitioner control his

diabetes. Petitioner asked that he remain employed with the

County and be allowed to transfer to a job with little or no

physical exertion, less manual labor, and that was not exposed

to the elements. Based upon Petitioner’s claim that his

diabetes caused the outburst, his wife’s explanation of his

diabetic condition, and the doctor’s note, the County decided to

provide Petitioner an opportunity to remain employed in a less

strenuous position.

18. Ms. Smith, the County’s Human Resources Director,

reviewed Petitioner’s personnel file to ascertain what jobs he

had previously demonstrated an interest in and what positions he

might be qualified for. After review, the Solid Waste Attendant

position was the only position the County had available in

November 2007 that fit the less heavy physical exertion

requirement requested by Petitioner. At hearing, Petitioner

submitted a list of available County jobs for 2007 and 2008.

The list does not indicate which of the jobs was available in

November 2007 when Petitioner first sought a job transfer as a

reasonable accommodation. Additionally, the jobs Petitioner

expressed an interest in were the same jobs Petitioner had

expressed an interest in that were discussed earlier in this

Recommended Order. As to those positions, the record shows that

either Petitioner was not qualified for those jobs or there was

no substantial or credible evidence that demonstrated the

availability of any other less strenuous positions that

Petitioner was qualified for in November 2007.

19. Sometime after the pre-termination hearing, the County

offered Petitioner the position of Solid Waste Attendant. At

some point, the County met with Petitioner before he accepted

the Solid Waste Attendant position. At that meeting, Petitioner

was told about the duties of the Solid Waste Attendant position.

Those duties included counting money, inputting data into a

computer, and/or processing paperwork. Two of the essential

functions of the Solid Waste Attendant position were the ability

to use computers and the ability to make correct change when

handling cash.

20. At the time, and even though Petitioner now admits he

is not good at math and has not used a computer to any great

extent, Petitioner was pleased with the Solid Waste Attendant

position and did not raise any concerns or objections regarding

his ability to perform the duties of that job. In fact,

Petitioner testified during the hearing that he “thought that it

would be a good job.” Petitioner accepted the Solid Waste

Attendant position and started work on December 3, 2007. He did

not lose any pay or benefits when he was transferred to the

Solid Waste Attendant position.

21. As with any other County employee, Petitioner was on

performance probation status when he assumed the Solid Waste

Attendant position. The County’s probationary employee policy

allows employees to be discharged prior to the completion of the

probationary period.

22. Petitioner was in the Solid Waste Attendant position

for approximately two and a half months. With the exception of

two weeks (December 28, 2007, until January 14, 2008) that he

missed because of hand surgery on his non-dominant left hand,

Petitioner spent the remaining ten weeks in training. However,

prior to Petitioner’s leaving for surgery on his left hand he

was having problems performing the Solid Waste Attendant’s

duties.

23. Upon Petitioner’s return to work on January 14, 2008,

Petitioner was placed on light duty. He was not restricted in

relation to the use of his left hand. However, for a short

time, use of his left hand was difficult since it required

elevation.

24. Importantly, the evidence did not demonstrate that

Petitioner’s surgery on his left hand significantly interfered

with his ability to perform the duties of the Solid Waste

Attendant position over the period of time he worked in that

position. Nor, was there any credible evidence that

Petitioner’s large hands hindered his ability to use the

computer keyboard at work. Petitioner’s difficulties in

mastering the duties required in the position did not involve

the speed with which he could input data into the computer

system. His problems did involve his ability to do math,

understand the waste computer program and learn the codes for

appropriately accounting for solid waste disposal.

25. John Beals, Rose Day, and Cynthia Thompson trained

Petitioner in the duties of the Solid Waste Attendant position

for periods ranging from a couple of weeks to two months.

Petitioner was provided training on how to complete solid waste

attendant paperwork, computer operation, scale operation,

customer service, and cash-handling procedures.

26. Despite the training, his job performance in the Solid

Waste Attendant position was unsatisfactory. Specifically,

Petitioner was unable to retain the information necessary to

complete solid waste attendant tasks, did not understand the

WasteWork computer program, did not count money correctly when

giving change, could not remember account numbers or material

codes relevant to required environmental accounting for solid

waste processing, failed to complete forms correctly, and could

not multi-task while processing customers leaving waste at the

solid waste facility.

27. Petitioner’s performance did not improve after his

return from the hand surgery.

28. As a result of Petitioner’s inability to understand

the Solid Waste Attendant’s job duties and unsatisfactory work

performance in the position, the County terminated Petitioner’s

employment during his probationary period. There was no

credible evidence that Petitioner’s termination was based on his

diabetic condition or was a pretext for discrimination based on

his handicap. Petitioner simply could not perform the essential

functions of the Solid Waste Attendant job. Finally, the

evidence did not demonstrate that any other position was

available to Petitioner for which he was qualified. Given these

facts, the evidence did not demonstrate that Petitioner was

discriminated against based on his handicap and the Petition for

Relief should be dismissed.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat.

30. Under the provisions of Section 760.10(1), Florida

Statutes, it is an unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

31. FCHR and the Florida courts have determined that

federal discrimination law and the Americans with Disabilities

Act of 1990 (ADA) should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Greenberg

v. BellSouth Telecommunications, Inc. , 498 F.3d 1258, 1263-64

(11th Cir. 2007); Florida Dept. of Community Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991); and Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994). Under this

analysis, a Petitioner must establish he (1) is disabled, (2) is

a qualified individual, and (3) was subjected to unlawful

discrimination because of his disability. In relation to the

third prong, the term “unlawful discrimination” may include not

making reasonable accommodations for an employee that meets

parts 1 and 2 of the foregoing test. See Holly v. Clairson

Industries, L.L.C. , 492 F.3d 1247, 1262 (11th Cir. 2007).

32. In this case, the evidence showed that, in 2005,

Petitioner’s diabetes was a handicap as defined in Chapter 760,

Florida Statutes. However, the evidence was clear that

Petitioner’s diabetic condition had been reasonably accommodated

by the County when he was employed as a maintenance worker and

as a Solid Waste Attendant. Specifically, the County provided

Petitioner unscheduled breaks whenever he had diabetic episodes,

allowed him to rest, eat, and/or test his blood sugar level,

provided a County vehicle and employee to transport Petitioner

when necessary from work locations to County facilities or his

home to pick up his medication, allowed Petitioner to leave work

early when he did not feel well, and provided food or drink to

him to help control his sugar level. Indeed, Petitioner was

never denied a break he needed as a result of his diabetes and

was not disciplined because of his diabetic episodes. The

evidence did not demonstrate that the County was obligated to

consider transferring Petitioner to a less strenuous position

until November 2007, when Petitioner first asked for the

accommodation.

33. The evidence did show that once the County was aware

of Petitioner’s change in his insulin regimen in November 2007

and based upon Petitioner’s claims that his diabetes caused his

outburst, his wife’s explanation of his diabetic condition, and

the doctor’s note, the County willingly provided Petitioner an

opportunity to remain employed in a less strenuous and hot

position and offered Petitioner the position of Solid Waste

Attendant. At the time, the Solid Waste Attendant position was

the only position the County had available that fit the less

heavy physical exertion requirement Petitioner felt he needed.

34. Additionally, Petitioner did not lose any pay or

benefits when he was transferred to the Solid Waste Attendant

position.

35. A person is a qualified individual with a disability

when he can “perform the essential functions of the job in

question with or without reasonable accommodations.” Lucas v.

W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001). The

record is clear that Petitioner could not perform the essential

functions of the Solid Waste Attendant position whether or not

he was afforded reasonable accommodation. Two of the essential

functions of the Solid Waste Attendant position are being able

to use computers and make correct change when handling cash.

36. Petitioner admitted that he was not comfortable using

a computer and he rarely used his home computer. Petitioner

also testified that he was not good in math. The co-workers

responsible for training Petitioner provided undisputed

testimony regarding his unsatisfactory job performance in the

Solid Waste Attendant position. Specifically, Petitioner was

unable to retain the information necessary to complete solid

waste attendant tasks, did not understand the WasteWork computer

program, did not count money correctly when handling cash, could

not remember account numbers or material codes required in

accounting for the disposal of solid waste, failed to complete

forms correctly, and could not multi-task while processing

customers leaving solid waste at the facility. Clearly,

Petitioner could not perform the essential functions of the

Solid Waste Attendant position with or without reasonable

accommodation. See Wofsy v. Palmshores Ret. Cmty. , 285 Fed.

Appx. 631, 634 (11th Cir. 2008)(plaintiff was not a qualified

individual because he could not perform an essential function of

the driver position as a result of his refusal to drive outside

of local area); and Williams v. Motorola, Inc., 303 F.3d 1284,

1290-91 (11th Cir. 2002)(plaintiff was not a qualified

individual because of her inability to handle stress and work

reasonably well with others).

37. To the extent Petitioner contends the County failed to

reasonably accommodate him by not placing him in a position he

specifically requested on the job interest forms, the facts

establish that every form he completed since 1990, sought

positions that entailed a promotion. In general, “[A] qualified

individual with a disability is not entitled to the

accommodation of [his] choice, but only to a reasonable

accommodation.” Stewart v. Happy Herman’s Cheshire Bridge,

Inc. , 117 F.3d 1278, 1285-1286 (11th Cir. 1997). Employers are

not required to promote disabled employees in order to

accommodate the employee’s disability. See Lucas v. W.W.

Grainer, Inc. , 257 F.3d 1249, 1256 (11th Cir. 2001). (ADA does

not “require the employer to promote a disabled employee” as a

reasonable accommodation). There was no credible or substantive

evidence that demonstrated Petitioner was qualified to drive

trucks or operate heavy equipment in light of his two prior

accidents and the symptoms he experiences due to his insulin-

dependent diabetes. Moreover, there was no credible or

substantive evidence that Petitioner was qualified for any of

the other jobs that he expressed an interest in during the

hearing. Expression of interest is insufficient to demonstrate

qualification. Finally, except for the Solid Waste Attendant

position, the evidence did not demonstrate that any of the

positions on the 2007 job’s list were available or open at the

time Petitioner asked to be transferred to another less

strenuous and hot position as an accommodation for his diabetes.

38. Ultimately, Petitioner did not establish the

discrimination prong of the prima facie case. Petitioner is

required to show that he was subjected to unlawful

discrimination because of his disability. See Doe v. DeKalb

County Sch. Dist. , 145 F.3d 1441, 1445 (11th Cir. 1998).

Specifically, Petitioner “must show that he has suffered an

adverse employment action because of his disability.” Id. at

1445.

39. In this case, Petitioner’s discharge in 2008, from the

Solid Waste Attendant position resulted from his inability to

retain the information necessary to complete solid waste

attendant tasks, understand the WasteWork computer program,

count money correctly when handling cash, remember account

numbers or material codes necessary to track the disposal of

solid waste, complete forms correctly, and multi-task while

processing customers at the solid waste facility. Petitioner’s

only testimony specifically addressing his unsatisfactory work

performance as a Solid Waste Attendant conceded his failure, but

attempted to justify his poor performance by claiming that he

was not good at math, was not comfortable using a computer,

rarely used his home computer, and that his large hands hindered

his ability to use the computer keyboard at work. None of these

reasons relate to Petitioner’s handicap or are handicaps in and

of themselves. Moreover, there was no evidence that

Petitioner’s training was inadequate or discriminatory. Given

the lack of evidence demonstrating discrimination based on

handicap or a failure to accommodate Petitioner’s handicap, the

Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petition for Relief be dismissed.

DONE AND ENTERED this 31st day of December, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 2009.

COPIES FURNISHED :

Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Reynaldo Velazquez, Esquire

Velazquez Law Firm, P.A.

100 Almeria Avenue, Suite 340

Coral Gables, Florida 33134

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida 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.