09-004943 David J. Normandin vs. Fresenius Medical Care Status: Closed Recommended Order on Thursday, November 18, 2010.

Summary: Evidence did not show handicap discrimination (herniated disc), not qualified, no reasonable accomodation, legitimate reason.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. NORMANDIN, )

)

Petitioner, )

)

vs. ) Case No . 09 - 4943

)

FRESENIUS MEDICAL CARE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held in this matter

before the Di vision of Administrative Hearings by Diane

Cleavinger, Administrative Law Judge, on July 27, 2010.

APPEARANCES

For Petitioner: R. John Westberry, Esquire

7201 North 9th Avenue, Suite A - 4

Pensacola, Florida 32504

For Res pondent: Richard N. Margulies, Esquire

Jackson Lewis LLP

245 Riverside Avenue, Suite 450

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of an unlawful

employment p ractice based on his disability by Respondent.

PRELIMINARY STATEMENT

Petitioner, David J. Normandin (Petitioner) , filed a n

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR), alleging that Respondent,

Fresenius Med ical Care (Respondent or Fresenius ), violated

Section 760.10, Florida Statutes, by discriminating against him

on the basis of his disability or perceived disability. The

alleg ations were investigated by FCHR. On July 17, 2009, FCHR

issued a Determination of ÐNo Cause . Ñ FCHR advised Petitioner

o f his right to file a Petition for R elief and request a hearing

on FCHRÓs determination. On October 20, 2009, an Amended

Petition for R elief was filed by Petitioner.

At the hearing, Petitioner testified on his o wn behalf, but

did not offer any exhibits into evidence. Respondent presented

the testimony of one witness and offered Exhibits 1, 2, 3, 11,

12, 13, 14, 15, 16, 17, 18, 19 and 21 into evidence.

After t he hearing, Petitioner filed a Proposed R ecommended

O r der on Sept ember 24, 2010. Likewise, R espondent filed a

P ropose d R ecommended O rder on September 29 , 2010.

FINDINGS OF FACT

1. Respondent , Fresenius Medical Care, provides dialysis

treatment to end - stage renal disease pat ients. During the time

relevant to this proceeding , Respondent operated 11 clinics in

the Northwest Florid a and South Alabama area. The Florida

clinics were located in Pensacola, Navarre, Destin, Fort Walton

Beach and Crestview . The S outh Alabama clinic was located in

Andalusia.

2. ÐD ialysisÑ is the cleansing of the body of unwanted

toxins, waste products , and excess fluid by filtering the blood

of patients thr ough the artificial membrane of a dialysis

machine . P urified water and di al ys ate are used during the

process . Dialysis treatm ent is necessary when a patientÓ s

kidneys are inadequate or no longer capable of acting as a

filter to remove waste and fluids from a patientÓ s blood. While

the frequency of treatment can vary for each patient, patients

typically receive d dialysis at Fres enius Ó clinics three times a

week for four hours .

3. The treatment requires piercing the skin and blood

vessel so that each patient is intravenously attached to a

d ialysis machine . Because dialysis involves piercing the skin

and blood vessels, as well as the re moval and replacing of a

person Ós blood , patient s are at an increased risk of infection.

In order to protect patient s from infection, proper maintenance,

testing , and sanitation of the equipment used during dialysis is

of primary importance.

4 . As such, d ialysis is highly regulated by state and

federal agencies responsible for health, safety, privacy , an d

reimbursement for health care . In order to fulfill its

obligations to its patien t s and regulators, Fresenius maintained

a Cod e o f Business Co nduct that outlined policies and proced ures

which every employee was required to follow. These policies and

procedures were based on federal regulations enforced by the

Ce nters for Medicare and Medical Services (CMS ). The Code

required that maintenance, sanitation , and tests for

contaminants be regularly performed according to the schedules

established for such procedures. T he Code of Business Conduct

also required all of RespondentÓs employees to maintain accurate

and complete records. In particular , b iomedical equipment

technicians were required to maintain logbooks of all the

maintenance and tests done on each piece of equipment used in

the dialysis process. Documentation was required to ensure that

state and federal reporting requirements for mainte nance and

testing on dialysis machines was done. Documentation of every

task performed by a biomedical technician was also required for

review by RespondentÓs internal and external auditors. F ailure

to perform these function s could subject Respondent to fines and

other government actions, including loss of its Medicare

certification and a shutdown of its clinics.

5 . Respondent also maintained a ÐContinuous Quality

ImprovementÑ (CQI) progr am which wa s designed to review

indicators of the quality of treatm ent Respondent Ó s patients

we re receiving . These quality measures were reviewed by a CQI

committee. The CQI c ommittee was an inter disciplinary team

consisting of the Medical Director, the doctor responsible for

overseeing the medical care provided in a c l inic; the Area

Manager, the person responsible for managing all aspects of a

clinicÓs operation s; the Clinical Manager, the registered nurse

responsible for nursing care and technical services at a clinic;

and the Biomedical Technician , the person responsi ble for

maintaining, sanitizing , and testing the dialysis equipment at a

clinic . P eriodic meetings were held by the CQI committee to

review all aspects of dial ysis at a cli nic. The periodic

meetings included a review of machine maintenance, machine

sanit ation , and culture tests done on dialysis machines at a

clinic , as well as a review of logbooks maintained by the

biomedical technician, if necessary . The periodic meetings also

included a review of all adverse events and al l patient

incidents that occurr ed at a clinic . Additionally , to ensure

quality dialysis services , all of RespondentÓs employees

receive d initial and annual compliance training, which addressed

relevant changes to R e spondentÓs policies, as well as state and

federal laws.

6. Petitioner , David J. Normandin , wa s a certified

Biomedical Equipment Technician and nationally certified

Biomedical Nephrology Technician . Petitioner received exten sive

training as a Biomedical Technician, including training on

national standards for nephrology tech nicians and national

protocols for t esting, maintenance , and documentation of these

efforts. Additionally, Petitioner received both initial and

annual on - the - job training from Fresenius regarding required

maintenance, san itation , and record - keeping respon sibilities .

7. Petitioner worked for Respondent on two separate

o ccasions. Initially, he worked at one of RespondentÓs clinics

in North Carolina, where he was a Chief Technician. Later,

Petiti oner moved to Florida and was employed by Renal Care Group

as a Biomedical Technician. Eventually, Renal Care Group was

purchased by Respondent in April 2006. After the purchase,

Petitioner remained employed with Respondent as a Biomedical

Technician until his termination on February 6, 2008.

8. As a Biomedical Technician, Petitioner was assigned

responsibility for three clinics. PetitionerÓs responsibilities

included providing preventive maintenance, troubleshooting,

repairing, cleansing , and disinfecting of the clinicÓs dialysis

machines and water treatment e quipment. His responsibilities

also required taking water cultures and testing the water

systems to ensur e that the equipment and water we re free from

bacterial growth and pa thogens. Without such maintenance,

sanitation , and tests , it was dangerous for a patient to be

intravenously hooked up to a dialysis machine that had not been

properly tested or maintained . E very patient with whom the

d ialysis equipment might come in to contact would be affected.

Indeed, t he consequences of not performing required ro utine

testing, sanitation, maintenance , and record - keeping tasks w ere

serious .

9. At FreseniusÓ clinics , Biomedical Technicians worked

inde pendently and were assigned to specific clinic s . However,

Biomedical Technicians assigned to other clinics someti mes

helped other technicians when needed to complete their required

duties. Such help only occurred if the foreign technician was

available and not busy with meeting responsibilities for their

own clinics. Petitioner admitted that the other technicians

w ere u sually ÐslammedÑ with the work at their own clinics and

not generally available to help at PetitionerÓ s clinics.

Indeed, t he evidence did not demonstrate that other qualified

technicians were generally or routinely available to assist

Petitioner in h is job duties. Similarly, the evidence did not

demonstrate that it was reasonable for Respondent to hire

additional technicians to help Petitioner perform his job

duties.

1 0 . Petiti oner was required to provide a monthly summary

or technical repo rt to the CQI c ommittee for each clinic to

which he was assigned . As part of the report, Petitioner was

required to self - report what maintenance and tests were

completed, and what maintenance and tests remained to be

completed at each clinic. Petitioner was also required to self -

report if he was behind in the performance of his routine job

duties so that help might be provided, if it was available. If

Petitioner failed to properly report any compliance

deficiencies, such deficiencies would not no rmally be discove red

until the Regional Technical Manager, Todd Parker, conducted an

internal audit of the clinic or an unannounced CMS survey was

performed.

11 . When he was initially hired by Respondent, Petitioner

was responsible for the clinics in Fort Walton Beach, Crestview

and Andalusia. At times , Petitioner assisted in or was

responsible for the maintenance of two additional facilities in

the area. These additional assignments generally occurred when

Respondent was understaffed or training new staff. However , b y

April or June 2007, Petitioner was only responsible for the

three clinics in Fort Walton Beach, Navarre , and Destin. The

evidence did not show that Petitioner was responsible for more

clinics than any other Biomedical Technician.

12 . Joan Hodson was the Clinic Manager for RespondentÓs

Fort Walton Beach clinic. As of April 2007, PetitionerÓs direct

supervisor was George Peterson, who in turn reported to

Mr. Parker. Joan Dye was the Area M anager.

13 . Petitioner testified that he informed his employ er in

2003 th at he had a bad back. Petitioner admitted that he

continued to perform his job duties without significant

difficulty . There was no evidence that demonstrated his

complaints were more than ordinary complaints about a sore back

or that such co mplaints rose to the level of or were perceived

as a handicap by his supervisors. However, sometime in 2007,

Petitioner was diagnosed with two herniated discs and began

having difficulty keeping up with his job duties .

14 . In March 2007, Petitioner was the on - call technician

for emergency calls from the clinics in the area. He did not

respond to several calls from the area clinics. These clinics

complained about the missed calls to Ms. Dye and Mr. Parker

du r ing the March CQI meeting in Pensacola. As a consequence,

Ms. Dye and Mr. Parker called Petitioner into the office to

discuss the missed calls and to address the issue that his work

was falling behind. T hey asked Petitioner if there was a

problem. At the time, Petitioner was not under any medical

restrictions from a healthcare provider.

15. Petitioner informed Ms. Dye and Mr. Parker that he was

on medications for his back which caused him to sleep very

deeply and not hear the phone ring when clinics called. He also

told them that he was having a hard time k eeping up with his

work because of the pain from his back .

16. As a result of the meeting, Petitioner was taken off

ÐcallÑ duty and was no longer responsible for responding to

other clinic s Ó calls for assistance. Petitioner was also

infor med that he would be provided help when it was available so

that he could catch up on his assignments. Additionally,

Petitioner was asked to provide a doctorÓs note concerning his

back condition and any limitations he might be under due to his

back. This meeting was the first time Petitioner informed his

employer that he had a serious back problem.

17 . On April 24, 2007, Petitioner provided Respondent with

a doctorÓs note concerning his back. The doctorÓs note stated

that for two months Petitioner was n ot to lift over 30 pounds,

and was not to en gage in repetitive bending, stoo ping , or

kneeling. Petitioner was released to full duty on June 24,

2007. This is the only doctorÓs no te Petitioner ever provided

to R espondent. Importantly, these restrictions did not impa ir

PetitionerÓ s ability to document a ll of the jobs he had

performed or to accurately self - report when specific maintenance

and tests were not done or were behind.

18 . On October 3, 2007, Mr. Parker performed a techni cal

internal audit of the Navarre clinic which was assigned to

Petitioner . At the time, Petitioner was responsible for the

Navarre clinic . The audit revealed that Petitioner had

performed no dialysis and end toxin tes ting for the clinic

during the year. These tests were required to be performed

every six months. Moreover, Petitioner failed to disclose to

anyone that he had not performed these tests even though he had

the opportunity to self - report during CQI meetings or at any

other time .

19 . Again, Petitioner met with Mr. Pa rker and Ms. Dye.

When asked to explain why the tests had not been performed at

the Navarre clinic , Petitioner told Mr. Parker and Ms. Dye that

he Ðdid not knowÑ he had to do them, and that he had simply

ÐmisunderstoodÑ the requirements. PetitionerÓ s cla im was not

credible. His supervisors found PetitionerÓs explanation to be

suspect, since he had previously completed dialysis and end

toxin testing at both Navarre and the other clinics he was

responsible for. In a memo he later prepared as to why he had

not conducted the tests, Petitioner wrote: Ðso much to do, so

far behind.Ñ Petitioner never mentioned his back as an excuse

for why he had not performed the tests in his meeting with

Ms. Dye and Mr. Parker. At the hearing, Petitioner admitted

that he si mply ÐforgotÑ to conduct the dialysis tests. Clearly,

PetitionerÓ s failure to perform his duties was not related to

his back. Similarly, his failure to self - report with any

specificity was not related to his back.

20 . Ms. Dye instructed Petitioner to co mplete the test

samplings for the clinic that day. Ms. Dye also instructed

Petitioner to maintain samplings per the policies at all of his

clinics going f orward. Petitioner also was instructed by

Ms. Dye that he had to immediat ely test all of the machine s at

the Fort Walton Beach and Destin clinics for which he was

responsible . Petitioner asked Mr. Parker for assistance in

catching up on the dialysis testing at the Navarre clinic.

Mr. Parker came to the clinic and performed half of the tests,

while Peti tioner performed the remainder.

21 . In November 2007, Petitioner saw a surge on for his

back and, for the first time, was specifically informed by a

physician that he would need back surgery. It was anticipated

that the surgery would be performed sometim e after the first of

the year. Petitioner told his employer about his need for

surgery. They encouraged Petitioner to do whatever he needed to

do to take care of his health, and take any necessary time off.

Petitioner chose to continue to work.

22 . A C QI c ommittee meeting for the Fort Walton Beach

clinic was scheduled for Thursday, January 24, 2008. Prior to

the meeting, Joan Hodson, t he Clinical Manager for the clinic,

asked Petitioner to meet with her early in the morning to review

the clinicÓs dialy sis culture logbook. Petitioner missed the

meeting and arrived after noon, with no explanation. He told

Ms. Hodson that all cultures were good.

23 . Later, at the CQI c ommittee meeting, Petitioner

reported to the Medical Director, Dr. Reid, that all th e

cultures looked good. In reviewing, the printout report for the

cultures, Dr. Reid noticed that one of the samples was high and

asked that it be redrawn. Petitioner told Dr. Reid and the

c ommittee that he had already performed a redraw. He left the

me eting to go get proof of the redrawn results. PetitionerÓs

claim that he did not tell the committee that he had already

redrawn the culture and had the results is not credible.

Petitioner left the CQI meeting and never returned. Later,

Petitioner admitt ed he had not red rawn the sample. He was

instruct ed to redraw the sample immediately.

24 . T he day after the CQI meeting, Ms. Hodson cal led

Petitioner asking for the re draw results. Petitioner still had

not performed the redraw claiming that he was Ðto o busy.Ñ He

was again instructed to immediately perform the redraw.

Ms. Hodson calle d Petitioner the following day , inquiring about

the redraw, but did not receive a return call. That weekend,

Mr. Parker also called Petitioner to ensure that the redraw wa s

done or would be performed immediately. During the call

Mr. Parker informed Petitioner of the seriousness of his failure

to redraw the culture immediately as he had been instructed to

do and the inappropriateness of his actions regarding the

culture bef ore, during , and after the CQI meeting. Mr. Parker

also instructed Petitioner to call Ms. Dye about the re draw

results. Petitioner again did not perform the redraw as

instructed . Ms. Dye also left Petitioner a voicemail to call

her about the redraw. Pe titioner never called Ms. Dye back.

PetitionerÓ s repeated and wil l ful failure to comply with his

supervisorsÓ instructions was not related to his back.

25 . On January 30, 2008, as a consequence of PetitionerÓ s

failure, Petitioner was relieved of his du ties for the Destin

clinic. He was also given a written warning in a Corrective

Action Form (CAF ), based on the incidents from January 24, 25,

26 , and 28, 2008. The CAF specified ÐExpectations for Change , Ñ

which identified problems with PetitionerÓs perf ormance.

Ms. Dye reviewed the CAF with Petitioner and instructed him that

these problems had to be addressed immediately. These

expectations included:

1) Perform all culture draws according to

FMC Technical Manual and review this with

the Clinical Manag er. Immediately report

any cultures that are outside the FMS limits

and any redraws to the CM. . . . When Dave

is at the clinic, he will be expected to

redraw any culture that day, if necessary;

2) At CQI monthly meetings, will ensure

that all cultures are reported correctly and

proper protocol is followed. A Technical

CQI summary monthly report and a Spectra

monthly summary culture report must be

presented to the CM and MD for review and

signature;

3) Implement a basic monthly schedule and

submitted to his CMÓs by the 1st day of each

month, will ensure that if he is not at a

specific location according to his schedule,

he will contact the CM or the Charge Nurse

of that clinic to inform them of his

location. If called or paged by any clinic,

or a mem ber of management, he must respond

within 15 minutes from the time he received

the call or page;

4) Will follow a more systemic time

schedule and will incorporate his time with

his monthly schedule. Will make himself

readily available to be present, if one of

his clinics develops a problem in the early

morning hours, if necessary; and

5) When on - call, the 15 - minute rule also

applies. If not on - call, no matter which

clinic calls, will return the call or page

and assist the clinic, inform them who is

o n - call and/or attempt to resolve the

problem over the phone.

26 . That same day, January 30, 2008, Petitioner received a

Developmental Action Plan from Mr. Peterson. Five goals and an

Action Plan were identified that Petitioner had to meet within

time fr ames set during the next 90 days. Goals in the Plan

included incorporating all of his monthly cultures into the FMC

( Fresenius Medical Ca re ) logbook and developing a basic monthly

p reventive m aintenance culture and disinfect schedule for all

facilities. By March 31, 2008, the T echnical Manager would

evaluate and review the goals accomplished by Petitioner to

determine if further action was necessary.

27 . Petitioner admitted that although he had been

obligated to self - report all of the deficiencies in th e

Corrective Action Form at the CQI meeting in January 2008, he

fai l ed to do so. Petitioner testified that he told Ms. Hodson

that he was Ðvery much behindÑ on performing his job duties . He

also admitted that he never provided her with any specifics as

t o the tasks he had not performed. Additionally, he admitted

that, ÐI donÓt even know all of the things that I was behind onÑ

and ÐI donÓt kn ow which [logbooks] IÓm missing . Ñ

28 . The internal audit at the Fort Walton Beach clinic and

PetitionerÓ s actions regarding the redraw of the culture caused

Ms. Dye to be concerned about the integrity of the job

Petitioner was performing at all three of his clinics. Based on

PetitionerÓ s lack of honesty with the CQI c ommittee, Ms. Dye was

legitimately concerned that Petitioner was covering up his

failure to do his work and that the safety of patients was at

risk.

29 . As a result, Mr. Parker p erformed an audit of the Fort

Walton Beach clinic on February 6, 2008. The audit revealed

that no dialysate cultures had been performed since October

2007; two out of 31 machines lacked proper documentation of any

preventive maintenance having been performed; no preventive

maintenance logs were available for the building maintenance and

ancillary equipment; two new machines had n o documentation; and

no electrical and safety checks had been performed since April

2007. All of these tasks were required to have been complet ed

by Petitioner , and PetitionerÓ s failure to complete them was a

serious violation of his job duties. Indeed, these deficiencies

placed the Fort Walton Beach clinic in immediate jeopardy of

being fined and shut down by CMS. A shutdown would have left 80

of RespondentÓs patients without dialysis treatment and placed

them at risk for illness and possibly death. Th e audit also

uncovered that the written summaries Petit ioner had submitted to

the CQI c ommittee in October, November , and December 2007, and

the verbal reports he had given to the c ommittee at those

monthly meetings, indicating that the preventive maintena nce

logs were up to date, were in fact incorrect . Again,

PetitionerÓ s failure to document was a serious violation of

Petitioner Ó s job duties and was not related to his back

condition.

30. By this time, Ms. Dye had legitimately lost all f aith

in Petitione r Ó s honesty. She suspected that Petitioner had

falsified certain records because he could not produce various

records when he was asked to produce them and only later did the

requested records appear. In short, PetitionerÓs supervisors

had lost faith in Petitioner and could no longer trust him to

self - report or to i nform others when his duties were not being

performed.

31 . On February 6, 2003, Ms. Dye presented Petitioner with

a second Correctiv e Action Form, noting the issues generated by

the internal a udit and suspending Petitioner from work. The CAF

was reviewed and signed by Petitioner .

32 . Based on what was discovered from the Fort Walton

Beach clinic audit, Ms. Dye ordered an audit of PetitionerÓs

other clinics, Navarre and Destin. The same iss ues and

deficiencies were discovered at those clinics: 1) the dialysate

cultures at the Navarre and Destin clinics had not been

performed since October 2007; 2) no safet y checks had been

performed on four out of 18 machines at the Navarre clinic, and

none had been performed at the Destin clinic since July 2007;

and 3) prev entive maintenance was late on five mach ines at the

Navarre clinic and six at the Destin clinic. The audit

confirmed once more that Petitioner had misled the CQI c ommittee

members during the January CQI meetings for those clinics by not

reporting in his written summary or verbal report any

deficiencies. In addition, although Ms. Dye had instructed

Petitioner just the week before to immediately perform dialysate

cultures at all of his cli nics , Petitioner had failed to perform

any of those cultures and ignored the instructions of his

supervisors.

33 . Petitioner was given a final Corrective Action Form by

Ms. Dye on February 8, 2008. Ms. Dye reviewed the audit results

with Petitioner, as w ell as the Corrective Action Form, which he

signed. Petitioner was terminated the same day.

34 . Petitioner was fired after being on the Developmental

Action Plan for one week because he had misled the CQI c ommittee

in his reports, failed to self - report t he extent of the job

duti es he had not performed to the c ommittee, and had not

performed any testing of his dialysate cultures and electrical

safety checks or reported that he could not perform those tasks .

Such reporting was not related to Petiti onerÓ s b ack condition.

Moreover, m isleading the CQI c ommittee was not related to any

back con dition Petitioner had. Both were egregious and

terminable offenses by Petitioner.

35. After Petitioner was terminated in February 2008, he

applied for unemployment co mpensation and for multiple jobs. He

never informed any prospective employer that he was disabled or

needed an accommodation. Once he ultimately had surgery in

March 2008, Petitioner told Respondent th at he was better and

could work , and he asked for his job back. Eventually,

Petitioner went to massage therapy school, obtained his license ,

and worked sporadically as a massage therapist. Prior to the

hearing, Petitioner completed work as a team leader with the

Census Bureau. These fa cts demonstrate that PetitionerÓ s back

condition was not a handicap. There was no evidence that

Petitioner was terminated for a han dicap or a perceived

handicap , and the Petition for R elief should be dismissed.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearin gs has

jurisdiction over the parties to and subjec t matter of this

case. §§ 120.569 and 120.57, Fla. Stat.

37 . Respondent is an ÐemployerÑ as defined within the

Florida Civil Rights Act of 1992 (ÐFCRAÑ). See § 760.02(6) and

(7), Fla. Stat.

38 . In hi s Amen ded Petition for Relief , Petitioner alleged

that Respondent discriminated aga inst him based on his

disa bility or perceived disability in violation of Chapter 760,

Florida Statutes. Section 760.10(1), Florida Statutes, states

in part:

that it is an unl awful employment practice

for an employer to discharge or otherwise

discharge or otherwise discriminate against

any individual with respect to compen sation,

terms, condition, or privileges of

employment, because of such individualÓs

handicap.

§ 760.10(1)( a), Fla. Stat. ( 2009 ) .

39 . In cases alleging disparate treatment, Petitioner

bears the burden to establish by a preponderance of the evidence

that he was the victim of intentional disability discrimination.

McDonnell Douglas v. Green , 411 U.S. 792 (1973 ) ; Texas DepÓt of

Cmty. Affairs v. Burdine , 450 U.S. 248, 101 S.Ct. 1089 (1981);

s ee DepÓt of Banking and Fin. , Div. of Sec. and Investor Prof.

v. Osborn Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996) (ÐT he

general rule is that a party asserting the affirmat ive of an

issue has the burden of presenting evidence as to the issueÑ).

40 . Discriminatory intent may be established either

through direct or circumstantial evidence. See Wascura v. City

of South Miami , 257 F.3d 1238, 1242 (11th Cir. 2001).

41 . Because direct evidence of intent is often

unavailable, those who claim to be victims of intentional

discrimination are Ðpermitted to establish their cases through

infer ential and circumstantial proofÑ. Wascura , 257 F.3d at

1242; Shealy v. City of Albany, Georgi a , 89 F.3d 804, 806 (11th

Cir. 1996).

42 . In McDonnell , t he Supreme Court established a shifting

burden of proof analysis . Under this analysis , Petitioner bears

the initial burden of establishing a prima facie case of

disability discrimination. If Petit ioner establishes a prima

facie case, the burden to go forward with the evidence shifts to

R espondent to articulate legi ti mate, non - discriminatory reasons

for its employment actions. See DepÓt of Corrections v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991 ). Importantly,

RespondentÓs burden is one of persuasion. Id . ; see also

Alexander v. Fulton County, Georgia , 207 F.3d 1303 (11th Cir.

2000).

43 . Once a legitimate reason has been established by the

employer , Petitioner must then come forward with specif ic

evidence demonstra ting that the reasons given by R espondent are

false or are a pretext for discrimination. ÐThe employee must

satisfy this burden by showing that a discriminatory reason more

likely than not motivated the decision or by showing that the

preferred reason for the employment decision is not worthy of

belief.Ñ DepÓt of Corrections , supra , at 1186. See Texas DepÓt

of Cmty Affairs v. Burdine , 450 U.S. at 256, 1010 S.Ct. at 1095.

In so doing, Petitioner cannot merely quarrel with the wisdom of

the RespondentÓs reason, but Ðmust meet that reason head on and

rebut it.Ñ See Chapman v. AI Transport , 229 F.3d 1012, 1030

(11th Cir. 2000)(en banc). Further, a reason is not pretext for

discrimination unless it is shown that the reason was false and

that discrimination was the real reason. See St. MaryÓs Honor

Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993).

T he ultimate burden of persuading the trier of fact that the

Respondent intentionally discriminated against the Petitioner

alway s remains with the Petitioner. EEOC v. JoeÓs Stone Crabs,

Inc. , 296 F.3d 1265 , 1273 (11th Cir. 2002); s ee also , Bird v.

B.T. Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA 2007)

4 4 . To establish a prima facie case of disability

discrimination under Chapt er 760, Petitioner must prove the

following three elements by a prepo nderance of the evidence:

(1) Petitioner has a disability within the meaning of the ADA;

(2) that Petitioner is a qualified individual under the ADA, in

that, with or without reasonable a ccommodation, he can perform

the essential functions of the job; and (3) Petitioner was

subjected to unlawful discrimination because of his disability.

Calvo v. Walgreens Corp. , 2009 U.S . App. LEXIS 178 09 (11th Cir.

Aug 11, 2009); Wilson v. B/E Aerospace , 376 F.3d 1079 (11th Cir.

2004).

45 . The ADA defines ÐdisabilityÑ as: Ð(A) a physical or

mental impairment that substantially limits one or more of the

major life activities of [an] individual; (B) a record of such

an impairment; or (C) being regarded as having such an

impairment.Ñ 42 U.S.C. § 12102(2). Here, Petitioner claims

that he was disabled and/or that Respondent perceived him to be

disabled.

46 . Where an individual claims that he is actually

disabled, the Court must determine whether he is sub stantially

limited in a major life activity. The term Ðsubstantially

limitsÑ means Ðunable to perform a major life activity that the

average person in the general population can performÑ or Ðto

significantly restrict as to the condition, manner or duratio n

under which an individual can perform a particular major life

activity as compared to . . . an average person in the general

population. . . .Ñ 29 C.F.R. § 1630.2(j)(ii). Both the

duration and severity of an impairment are factors to consider

to determ ine if an impairment substantially limits a major life

activity. See Aucutt v. Six Flags Over Mid - Am, Inc. , 85 F.3d

1311, 1319 (8th Cir. 1996).

47 . ÐIt is insufficient for individuals attempting to

prove disability status under this test to merely submit

evidence of a medical diagnosis of an impairment. Rather, the

Plaintiff must offer evidence that the extent of the limitation

in terms of their own experience is substantial.Ñ See Toyota

Motor Mfg. v. Willi ams , 534 U.S. , 184 (2002). A d octorÓs

report, for instance, stating that the plaintiff has diabetes is

insufficient to satisfy a prima facie case under the ADA. See

Todd v. McCaham , 158 F. Supp. 2d 1369, 1379 (N.D. Ga. 2000); see

also Simpson v. Alabama Dept. of Human Res. , 311 Fed. Appx. 264,

268 (1 1th Cir. Feb. 11, 2009)(T he fact that Plaintiff had a

documented learning disability did not mean he was legally

disabled under the ADA . ).

48 . In this case , Petitioner failed to show that he has an

impairment which substantially limits him in one or more major

activities. Despite his back condition, Petiti oner is, and

while employed by R espondent was, an active, engaged person.

Aside from his testimony that he was in pain, walked with a

limp , and received medical treatment for a bad back, the only

eviden ce of his back condition consisted of (a) the April 24,

2007 , doctorÓs note stating that Petitioner had certain lifting

and repetitive motion limitations and (b) the fact of

PetitionerÓs eventual surgery . These restrictions, however,

were in place only fo r two months, through June 24, 2007.

Indeed, after June 24, 2007, there were no medical restrictions

imposed on PetitionerÓs ability to do his job. In Nove mber

2007, Petitioner was informed by a surgeon that he would nee d

back surgery sometime in 2008. However, he voluntarily chose

not to have that surgery and to continue working. After

Petitioner was terminated in February 2008, he applied for

unemployment compensation and for multiple jobs and never

informed any prospective employer that he was disabl ed or needed

an accommodation. Once he ultimately had the surgery in March

2008, Petitioner tol d Respondent that he was better and could

work , and he asked for his job back. Eventually, Petitioner

went to massage therapy school, obtained his license and worked

as a massage therapist. Just prior to the hearing, Petitioner

had completed work as a team leader with the Census Bureau . As

found above, the greater weight of the persuasive evidence

established that Petitioner was not disabled or handicapped

und er the applicable statutes because he failed to show that he

had an impairment which substantially limited him in one or more

major life activities.

49 . Finally, the evidence did not demonstrate that an

employment decision (e.g., hiring, promotion, termin ation,

discipline) was mad e because of a perceived handicap. No

evidence was produced at the hearing that Petitioner was treated

differently because of his back condition. PetitionerÓ s

complaints about his back are not enough. Petitioner failed to

intro duce any evidence at the hearing that he was wrongfully

disciplined because of RespondentÓs perception that his back

condition limited or prevented hi m from performing his job.

Inde ed the evidence showed that Respondent expected Petitioner

to perform his duties.

50 . Nonetheless, even assuming Petitioner was disabled

because of his back, the testimony at the hearing established

that Petitioner was not a qualified individual with a

disability, since he was unable to perform the essential

functions of his job, with or without a reasonable

accommodation.

51 . ÐDetermining whether a particular job duty is an

essential function involves a factual inquiry to be conducted on

a case - by - case basis.Ñ Lucas v. W. W. Grainger, Inc. , 257 F.3d

1249, 1258 (11th Cir. 200 1). In conducting this inquiry,

Ðconsideration shall be given to the employerÓs judgment as to

what functions of the job are essential.Ñ Earl v. Mervyns,

Inc. , 207 F.3d 1361, 1365 (11th Cir. 2000)(quoting 42 U.S.C.

§ 12111(9)(B). Moreover, while the ter m Ðreasonable

accommodationÑ may include Ðjob restructuring, [or] part - time or

modified work schedules,Ñ 42 U.S.C. £ 12111(9)(B), an employer

is not required to provide such an accommodation if it would

impose an undue hardship on the employerÓs business o perations.

42 U.S.C. § 12112(b)(5)(A).

52 . PetitionerÓs essential job duties included ensuring

that all of the clinicÓs dialysis equipment were cleaned and

disinfected, and that culture samples were taken as scheduled.

Also included among his essential job duties were preventive

maintenance, troubleshooting , record keeping , and self -

reporting . These job functions could no t be eliminated from

PetitionerÓ s position. Additionally, i f Petitioner failed to

perform these job duties at the clinics for which h e was

responsible, the j ob duties were not performed. The

consequences of PetitionerÓs failure to perform these job duties

were severe, since patient health and lives were put at risk,

and RespondentÓs clinics could be shut down.

53 . Repeatedly, Petition er admitted he was unable to

perform his job duties, had trouble keeping up, was well behind

with his routine work, and in fact, was so far behind in his job

duties and record - keeping responsibilities that by January 2008,

he di d not know how far behind he really was.

54 . Petitioner occasionally asked Respondent for help from

the other Biomedical Technicians in performing his job functions

because he could not keep up. Petitioner received such help

three or four times . Petitioner also admitted that the o ther

Biomedical Technicians could not help him more often because

they too were ÐslammedÑ keeping up with their own clinics.

However, Petitioner identif ied no other accommodation that he

requested of Respondent , and the evidence did not demonstrate

that a ny accommodation was reasonably available to Respondent .

55 . On the other hand, Respondent did not have to

el iminate the essential functions, i.e., the fundamental duties,

of the Biomedical Technician position under the ADA . A person

with a disability wh o is unable to perfo r m the essential

functions of his job, with or without reasonable accommodation,

is not a ÐqualifiedÑ individual with a disability within the

meaning of the ADA. Wofsy v. Palmalores Ret. County , 285 Fed.

App x. 631, 634 (11th Cir. 2008) ; Williams v. Motorola , 303 F.3d

1284(11th Cir. 2002). Additionally, Respondent was not required

to lower standards of the Biome dical Technician position that

we re applied uniformly to employees with and without

disabilities. Indeed, the standards all Bi omedical Technicians

were required to meet are set by governmental agencies, and

PetitionerÓs failure to meet tho se standards could have had dire

consequences for the dialysis patients and for Respondent.

Because Petitioner was unable to perform the essen tial functions

of his job as a Biomedical Technician, he cannot be considered a

qualified individual with a disability ; therefore, he has failed

to establish a prima facie case of handicap discrimination.

56 . Petitioner further failed to offer any eviden ce at the

hearing that a similarly situated Biomedical Technician was

treated more favorably. The evidence presented established that

Petitioner had the same number of clinic s for which he was

responsible, and had to adhere to the same standards and

pract ices as the other Biomedical Technicians. No evidence was

presented that any other Biomedical Technicians failed to

perform his/her job duties to the degree of Petitioner. For

these reasons, Petitioner failed to meet his burden of

establishing a prima fa cie case of disability discrimination.

57 . Finally, e ven if Petitioner established a prima facie

case of discrimination, Respondent identified legitimate, no n -

discri minatory reasons for PetitionerÓ s termination. Petitioner

was obligated to inform Respond ent that he was either unable to

perf orm the essential functions of his job or was not completing

the tasks which were his job duties . PetitionerÓs failures in

this regard were first identified in March 2007, and again when

they counseled him in October o f 2007. Pe titionerÓs failure and

refusal for several days to redraw a dialysate culture as

instructed led to a Corrective Action Form and a Developmental

Action Plan. Concerns about the integrity of the job Petitioner

was performing led to a complete aud it by Respondent of the Fort

Walton Beach clinic a week later, which uncovered numerous

routine tasks and re cord - keeping obligations that Petitioner

simply had not performed for months and had not self - reported.

S imilar audit s of the other two clinics for which Pet itioner was

responsible reflected similar deficiencies. In short,

Responde nt had valid, non - discriminatory reasons for

Petiti onerÓ s termination. None of these legitimate, no n -

discri minatory reasons for PetitionerÓ s termination were a

pretext fo r disability discrimination. Therefore, the Petition

for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

Final Order dismissing the Petition for Relief.

DONE AND ENT ERED this 18 th day of November , 2010 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18 th day of November , 2010 .

COPIES FURNISHED :

Richard N. Margulies, Esquire

Jackson Lewis

245 Riverside Ave nue, Suite 450

Jacksonville, Florida 32202

R. John Westberry, Esquire

7201 North 9th Avenue, Suite A - 4

Pensacola, Florida 32504

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 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.