11-004167 James Patrick Overly, Ii vs. Eaton Corp. Status: Closed Recommended Order on Tuesday, January 24, 2012.

Summary: Petitioner failed to prove that Respondent discriminated against him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES PATRICK OVERLY, II , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4167

)

EATON CORP. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice t o all parties, a final hearing was

conducted in this case on November 2 and 3, 2011, via video

teleconference in Orlando and Tallahassee, Florida, before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division) .

APPEARANCES

For Petitioner: Mike Hunsinger, Esquire 1/

The Hunsinger Law Firm

100 South King Street, Suite 400

Seattle, Washington 98104

For Respondent: John J. Doyle, Jr., E squire 2/

Constangy, Brooks and Smith, LLP

100 North Cherry Street, Suite 300

Winston Salem, North Carolina 27101

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent commit ted an

unlawful employment practice against Petitioner on the basis of

his medical disability in violation of the Florida Civil Rights

Act of 1992, as Amended (FCRA of 1992).

PRELIMINARY STATEMENT

On January 2, 2011, James Patrick Overly, II (Petitioner) ,

filed an Employment Complaint of Discrimination (Complaint) with

the Florida Commission on Human Relations (FCHR) alleging that

he was being discriminated against by his employer , Eaton

Corporation (Respondent) , based on the FCRA of 1992, the Age

Discrimin ation in Employment Act, and/or the Americans with

Disabilities Act. Following its investigation of the Complaint,

FCHR entered a Determination: " No Cause " dated July 11, 2011.

On August 11, 2011, Petitioner timely filed a Petition for

Relief (Petition) with FCHR, alleging Respondent had violated

the FCRA of 1992 in the following manner:

Respondent denied Petitioner a reasonabl e

accommodation for employment;

Respondent denied Petitioner his right to

obtain training for ne w light duty job

opportunities;

Respondent denied Petitioner his annual

merit increase in 2010, based on his

2009 evaluation; and

Respondent denied Petitioner the use and

possessi on of a company - leased vehicle.

On August 17, 2011, FCHR forwarded the Petition to the

Division. The under signed A dministrative L aw J udge was assigned

to the case. Following one mutually agreed - upon continuance,

the final hearing was set and heard on the dates and at the

locations indicated above.

At the final hearing, Joint Exhibits 1 through 4 were

received into evidence. Petitioner testified on his own behalf.

Petitioner ' s numbered Exhibits 1 through 6, 8 through 13, and 15

were admitted into evidence. 3/ Additionally, Petitioner offered

Respondent ' s pre - numbered Exhibits 1 through 3, 20, and 21 into

evid ence. Without objection from Respondent, these five

exhibits were admitted. 4/ Respondent called four witnesses to

testify: Robert Costantino , Dianne Higgins , Brian Irish , and

Brook Yost. In addition to the five exhibits admitted during

Petitioner ' s cas e - in - chief, Respondent ' s Exhibits 4 through 14 ,

22, and 24 through 26 were admitted into evidence. The record

was kept open to allow the deposition of James ("Yee") Leung

(Mr. Leung) . Mr. Leung ' s deposition T ranscript, with three

exhibits attached (Petit ioner ' s Exhibits 8, 18 , and 25), was

received by the Division on December 2, 2011, and incorporated

into the hearing record. The record in this case was closed on

December 6, 2011.

The Transcript of the final hearing was filed on

December 6, 2011. By rul e, the parties are allowed ten days

from the filing of the T ranscript in which to submit proposed

recommended orders (PROs). However, Respondent ' s counsel

requested 30 days from the filing of the Transcript in which to

file PRO s . That request was granted . Each party timely

submitted a PRO, and each has been duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 41 - year - old man who began his

employment with Respondent in April 2006. Petitioner has been

continuo usly employed in Respondent ' s Power Quality Services

Division (PQSD) since April 2006. However, he has been on

either short term disability (STD) since January 25, 2010, or

long term disability (LTD) beginning on July 25, 2010.

2. Respondent is an intern ational power service - related

company. Respondent ' s PQSD has customer service engineers (CSE)

throughout the nation who perform similar jobs in ten different

geographic regions. Petitioner is located in Orlando, Florida ,

and worked in Respondent ' s southe ast region, C entral Florida

division.

3. Sedgwick is the claims administrator for Respondent ' s

STD, LTD , and workers ' compensation programs. Employees who are

in the STD or LTD programs need to communicate with and keep

Sedgwick apprised of their disabil ity and related physician

directives. Respondent ' s employees are to contact Sedgwick to

file the requisite claim(s) for STD or LTD benefits. 5/

4. Prior to his disability leave, Petitioner worked for

Respondent as a CSE. Petitioner ' s position required hi m to

perform scheduled maintenance (SM), emergency maintenance (EM),

preventative maintenance (PM) on uninterruptible power supplies

(UPS), start - up projects that included the installation of

electrical equipment, and other related service activities.

Par t of Petitioner ' s job was to perform PM to catch issues

before they became major problems for the customers. Petitioner

also performed other field work that included emergency service

calls, customer visits , and battery assessments of various UPS

units.

5 . Respondent ' s standard CSE ' s job description 6/ included

the following areas: primary function, specific functions,

dimensions, specialized knowledge, and additional information.

In the additional information section, all CSEs had the

following " Working Conditions " enumerated:

Be able to lift up to 75 lbs

Occasional over - night travel may be required

Scheduled and unscheduled overtime required

24/7 on call position

Petitioner and Brian Irish (Mr. Irish) 7/ both agreed that this

job description was an accu rate description of a CSE ' s job.

Further, Petitioner agreed that , in order " [t] o do 100 percent

of the [ CSE ] job , " a person has to be able to lift up to the

75 pounds as required.

6. Petitioner provided a spread sheet to demonstrate his

PM activities for 2009. The spread sheet highlighted the seven

battery PM jobs that required a battery lift and tray puller 8/ in

order to perform the service, the 29 battery PM jobs that did

not require a battery lift, and the 74 UPS PM jobs that did not

require a battery lift. The spread sheet failed to include

Petitioner ' s scheduled maintenance work, the start - up jobs, or

any of his EM or emergency work done in 2009. Thus, the spread

sheet does not provide a complete picture of Petitioner ' s

2009 work performance.

7. P etitioner ' s duties made multiple physical demands of

his body: from carrying his tool bag (with various

screwdrivers, wrenches, sockets, drills and other assorted

items) , his laptop computer bag , and safety gear bag to the work

site; to sitting on a stool or the floor to hookup his laptop in

order to run the requisite diagnostic tests; to moving cabinet

doors in order to actually work on the equipment. There were

times when Petitioner used a two - wheeled dolly to transport the

equipment that he needed to p erform his duties. 9/

8. Petitioner routinely carried his computer laptop bag

with his laptop computer, some small hand tools , and assorted

communication cables to download the UPS information into work

sites. He also carried a cordless drill, a charger a nd/or a

back - up battery, a Fluke multi - meter, 10/ leads for the meter,

various sockets and adapters, a vacuum cleaner (if found to be

necessary), a flashlight, a torque wrench (for battery jobs) , an

infrared gun , 11/ and safety gear. Petitioner estimated th e weight

of the tools he typically used on a job at 14 to 15 pounds.

Petitioner also estimated that his laptop bag with the laptop

(which was an essential piece of equipment) weighed between

12 to 16 and one - half pounds. Petitioner did not offer a weight

on the safety gear bag he was required to use ; however , based on

the demonstration provided, that gear weighed at least five

pounds, if not more. 12/ On a routine service call, Petitioner

would need to carry at least 26 to 31 pounds of equipment in

order to perform the service call. Then he would have to

actually perform the required service, which could entail

additional physical demands.

9. Petitioner (as well as other CSEs) could remove the

outer doors to the UPS cabinets which housed the various batt ery

trays used in the computer system. Petitioner would use the

steel toe of his boot to lift the outer door of the cabinet off

its hinges. He would then put that edge of the door on the

ground, pull his steel - toed boot out, and slide or shift this

outer door to a safe location. Petitioner would repeat the

process with the second outer door. He would then remove the

inner doors ( " dead front " ) in order to perform the required

service. The two dead fronts were not as heavy as the outer

doors. To replace the outer doors (after replacing the dead

fronts), Petitioner would lift the outer door up on one end,

place his steel - toed boot under the door edge, then slide or

shift this outer door back to the cabinet front, raise the door

up , and guide the door back on to its hinge s . He would repeat

the process with the second outer door. Petitioner had to use

his body to physically push, pull, slide , and/or lift and direct

the outer doors to their appropriate resting location, as well

as back on the hinges. There was credible testimony that these

outer cabinet doors to the units that Petitioner serviced can

weigh betw een 26 and 50 pounds per door.

10. Respondent provides leased vehicles to its active

CSEs. Such vehicles could include a service van, a mini - van, a

truck, or some other large vehicle that is easily adapted to

carrying the equipment a CSE uses. CSEs pay approximately

$120 .00 a month for the unfettered use of the leased vehicle. 13/

Petitioner estimated that he used his leased vehicle 90 percent

of th e time for Respondent ' s business purposes and only ten

percent for personal use.

11. Respondent initially provided Petitioner with a van.

At the time he went on STD, Petitioner was driving a leased

heavy - duty Dodge Ram truck, with a camper top enclosure.

12. During the calendar work year for 2009, Petitioner met

his performance measures and was rated a perfect five on

Respondent ' s performance scale. That high performance

evaluation rating is undisputed.

13. Respondent provides merit pay increases to ac tive

employees who receive high performance marks for the preceding

year.

14. Respondent provides training courses to active

employees for them to maintain and/or obtain requisite training

on the UPS models being offered at the time.

15. On or about Nove mber 19, 2009, while on his honeymoon,

Petitioner suffered a back injury. Although Petitioner returned

to work in late November, his work schedule for the remainder of

2009 was very light based on the multiple holidays and the

difficulty in actually sched uling the various maintenance

appointments.

16. Between his return to work in late November 2009 and

January 13, 2010, Petitioner only completed two service calls in

2009 and a standby service call. 14/ Petitioner was contacted ,

around Thanksgiving 2009, about a customer wanting " standby

service , " and no one was available to take the call but

Petitioner. Petitioner contacted Robert Costantino

(Mr. Costantino) , his immediate supervisor, telling him that

Petitioner had hurt his back while on his honeymoon, but that

Petitioner was willing to take the call. Mr. Costantino, who

did not know the specifics of Petitioner ' s back injury, nor did

he have any written medical restrictions regarding Petitioner,

cautioned Petitioner " to be very careful. " Petitioner com pleted

the standby service call without incident.

17. Sometime in early January 2010, Petitioner again spoke

with Mr. Costantino and expressed that he (Petitioner) was not

getting any better, that he was in a significant amount of pain,

and that it was be coming difficult for him to do the job.

Mr. Costantino suggested Petitioner see a doctor.

18. On January 13, 2010, Petitioner was examined by an

orthopedic physician. Petitioner provided this orthopedic

physician ' s work status note to Mr. Costantino, who provided it

to Respondent ' s human relations (HR) department. This work

status note placed " LIGHT DUTY RESTRICTIONS " on Petitioner ' s

movement for six weeks and limited his " lifting/pushing/pulling "

to no more than 25 pounds . This work status note also co ntained

the following directive that , " [i] f light duty is not available

with the listed restrictions, the patient is to be temporarily

kept off work until the next office visit , " which was also six

weeks later.

19. After forwarding Petitioner ' s work statu s note to

Respondent ' s HR department , Mr. Costantino consulted with the

HR personnel. It was determined that it was not safe for

Petitioner to continue to work as a CSE. Mr. Costantino

contacted Petitioner, expressed concern for his injury , and

directed Petitioner to contact Respondent ' s HR department to

file a claim for STD. Mr. Costantino directed Petitioner to

cancel his pending service calls for the remainder of

January 2010. Although Petitioner contended he could perform

PM, or performance checks, Mr. Costantino indicated that

Respondent could not allow Petitioner to continue to work based

on the belief that the standard job requirements could be

detrimental to Petitioner ' s health.

20. As Petitioner started his STD, he was advised that he

could app ly for any available positions for which he was

qualified on Eatonjobs.com, the internal job website available

only to Respondent ' s employees. Petitioner did not avail

himself of this, as he thought it was Respondent ' s duty to find

him a position.

21. Di anne Higgens (Ms. Higgens) was the manager of

compensation, employee rehabilitations , and community

involvement for Respondent ' s PQSD until May 2011, when she

retired. In April 2010, Ms. Higgens took a special assignment

in Respondent ' s HR department, whe n that manager went on

maternity leave. During her service in the HR department,

Ms. Higgens spoke with Petitioner on numerous occasions

regarding his disability and the issues he was having with

Sedgwick rega rding his disability payments.

22. Ms. Higgen s had multiple , lengthy telephone

conversations with Petitioner. Ms. Higgens ' s perception during

these calls was that Petitioner was in a great deal of pain , as

he mentioned that in the majority of their telephone

conversations. Ms. Higgens ' s testimony i s found credible.

23. Ms. Higgens authored several letters to Petitioner

seeking information regarding his medical condition and/or

attempting to secure necessary medical documentation regarding

Petitioner ' s disability and when he could return to work

ful ltime. Specifically, in November 2010, Ms. Higgens sent

Petitioner a letter asking for his physician to complete a

return - to - work status form. Petitioner did not initially get

that form to Respondent, but did provide it in January 2011.

The form indicat ed Petitioner was to have surgery in

February 2011 and would be able to return to work six to eight

weeks thereafter. 15/ It is appropriate to note that Respondent

has in place a return - to - work process for employees who return

from either STD or LTD to ens ure that their health restrictions

or conditions are properly and adequately addressed.

24. Ms. Higgens encouraged Petitioner to search

Eatonjobs.com to locate a position that he desired. She offered

that , if Petitioner found a job opening that he was in terested

in, he should apply for it and let her know of his application.

She would then contact the appropriate HR person. Petitioner

never notified Ms. Higgens of any applications. Further,

Ms. Higgens attempted to assist Petitioner in finding work for

him within Respondent ' s organization. For the one possible

position that she found in a 50 Î mile radius from Orlando,

Florida, Petitioner could not fulfill the job requirements

because he was medically restricted in how much weight he could

lift. Respond ent did not and does not have permanent or regular

light - duty positions.

25. On April 13, 2010, Petitioner was examined by another

physician. Petitioner provided this physician ' s work status

note to Respondent. This work status note reflected that

Petit ioner " MAY NOT return to work , " but could return to

" regular duty on MAY 13 th 2010. " Although this work status note

indicated Petitioner could return to work on May 13, 2010,

Respondent did not receive any physician ' s directive or release

that Petitioner could , in fact, return to work. In fact,

Petitioner ' s condition declined to such an extent that he, on

his own volition , started using a cane in June 2010. Further,

in a January 4, 2011, letter, yet another physician documented

Petitioner ' s need to use a cane. 16/

26. Towards the end of Petitioner ' s STD period,

Mr. Costantino and Petitioner talked via telephone about

possible options for Petitioner to pursue. Petitioner continued

to express interest in three types of jobs that he felt he could

perform: the administrative job of scheduling PM and other

service calls , a triage job , and a technical support job. The

first two positions were at a lower salary than Petitioner ' s CSE

position. The technical support job was at a higher salary.

All three positi ons were located in Raleigh, North Carolina. At

that time, all three positions were filled with active employees

of Respondent and , thus, were unavailable for Petitioner.

Mr. Costantino suggested to Petitioner that he search

Eatonjobs.com for any open pos itions. Mr. Costantino also

provided Petitioner with the names and contact information for

the managers in both Respondent ' s triage and technical support

sections. Petitioner could contact those managers to discuss

any openings. Mr. Costantino was unawa re of any contact by

Petitioner with those managers.

27. Mr. Costantino told Petitioner he could not attend

Respondent ' s training classes because he was on disability

leave, and there was a possibility that Petitioner could

jeopardize his disability benef its if he participated in some

compensable activity for Respondent.

28. Mr. Costantino also discussed the 2009 merit increase

award with Petitioner. Respondent ' s stated policy is that , in

order to receive a merit increase award, the employee must be an

a ctive employee at the time the meri t increase award is

effective.

29. Respondent ' s company - wide 2009 merit increase award

was not effectuated until July 2010. As set forth in

Respondent ' s Merit Planning User Guide , employees who are " on a

leave of absenc e (LOA) cannot be planned for during the merit

[ award ] planning process, unless they return to work before the

plan cycle is over. " Thus, Petitioner did not qualify for the

merit raise in 2010, as he was either on STD or LTD at that

time. There was credi ble testimony that , once Petitioner

returned to work for Respondent, he would receive that merit

increase award, not retroactively, but moving forward.

30. In late summer of 2010, Mr. Costantino discussed

Respondent ' s leased truck usage with Petitioner. As Petitioner

was out on LTD, he was not actively working for Respondent, and

he did not need the leased vehicle. Following his previously -

scheduled vacation trip in 2010, Petitioner returned the leased

truck to Mr. Costantino. When he returned Responden t ' s leased

truck, Petitioner obtained a motorcycle for transportation.

31. Mr. Leung is a CSE from Respondent ' s Northeast 9

region, specifically working in three New York boroughs:

Brooklyn, Queens , and Manhattan. Mr. Leung sustained two hand

injuries, a fractured wrist in 2007 and a seve rely burnt right

hand in 2008.

32. Following his fractured wrist in 2007, Mr. Leung was

put on LTD because he had to undergo surgery. Mr. Leung was out

of work a couple of months ; however, he sufficiently recovered

and returned to his regular CSE duties.

33. In March 2008, Mr. Leung suffered second - degree burns

to his right hand while he was working for Respondent at

St. Peter ' s Hospital. He was initially treated at St. Peter ' s

Emergency Room, but was later transferre d to a different

hospital that had a burn unit. Mr. Leung received instruction

on his hand bandaging/care and was told to return to the

hospital for care. He thinks he had his hand in a

bandage/dressing for a month. Mr. Leung thinks he was placed on

wor kers ' compens ation following this accident.

34. Exactly what treatments or job - related activities

Mr. Leung performed following his 2007 and 2008 hand injuries

are suspect as his memory of these activities was unclear. 17/

35. Petitioner would have one b elieve that a burnt hand

injury is equivalent to an injured back. The undersigned cannot

agree.

36. Petitioner attempted to demonstrate that , following

Mr. Leung ' s 2008 hand injury, he participated in Respondent -

sanctioned training and work duties. Whil e it appears that

Mr. Leung did participate in some training and work for

Respondent, the extent to which he trained or worked was not

clearly addressed to establish that Respondent provided

Mr. Leung with a position different than his CSE duties.

37. Add itionally, Mr. Leung ' s 2008 circumstance is

unhelpful in Petitioner ' s cause as no testimony was offered

regarding the similarities or differences between the workers '

compensation program Mr. Leung thinks he was engaged in and the

STD or LTD programs in wh ich Petitioner participated.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

760.11(7), Florida Statutes (2011). 18/

39. Section 760.10(1)(a) states:

(1) It is an unlawful emplo yment 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, condition s,

or privileges of employment, because of such

individual ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

40. Section 760.22(7) defines " handicap " as follows:

(a) A person has a physical or mental

impairment which subst antially limits one or

more major life activities, or he or she has

a record of having, or is regarded as

having, such physical or mental

impairment; . . .

Handica p is a synonym for disability.

41. Florida ' s definition of " handicap " is essentially the

s ame as the definition in the Americans with Disabilities Act of

1990 (ADA), wherein 42 U.S.C. section 12102(2) defines a

disability as:

( A ) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individu al;

( B ) a record of such an impairment;

( C ) b eing regarded as having such an

impairment.

42. Petitioner is an " aggrieved person, " and Respondent is

an " employer " within the meaning of section 760.02(10) and (7),

respectively.

43. The FCRA of 1992 is codified in sections 760.01

through 760.11 and was patterned after Title VII of the Civil

Rights Act of 1964, 42 U.S.C. section 2000 et seq. Federal

employment discrimination law, including disability

discrimination law, can be used for guidance in const ruing the

provisions of chapter 760. Florida courts have recognized that

actions for discrimination on the basis of disability are

analyzed under the same framework as ADA claims. Chanda v.

Englehard/ICC , 234 F.3d 1219, 1221 (11th Cir. 2000).

44. Federa l case law interpreting Title VII is applicable

to cases arising under the FCRA. See Green v. Burger King

Corp. , 728 So. 2d 369, 370 - 71 (Fla. 3d DCA 1999); Fla. State

Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996).

45. The United States Supreme Cour t has established an

analytical framework within which courts should examine claims

of discrimination, including claims of Title VII discrimination

(age, race, disability, etc). In cases alleging discriminatory

treatment, Petitioner has the initial burden of establishing, by

a preponderance of the evidence, a prima facie case of

discrimination. St. Mary ' s Honor Ctr. V. Hicks , 509 U.S. 502

(1993); Combs v. Plantation Patterns , 106 F.3d 1519 (11th Cir.

1997). Fla. Dep ' t of Transp. V. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981) .

46. A petitioner in a disability discrimination case has

the burden of proving a prima facie case of discrimination by

demonstrating that: (1) he has a disability; (2) he is a

qualified individual, which means that he is a ble to perform the

essential functions of the employment position with or without

accommodation; and (3) the respondent unlawfully discriminated

against him because of his disability. See McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973). If Petition er cannot

establish all of the elements necessary to prove a prima facie

case, Respondent is entitled to entry of judgment in its favor.

Early v. Champion Int ' l Corp. , 907 F . 2d 1077 (11th Cir. 1990).

47. P etitioner established he is disabled and is a mem ber

of a protected class. He has a physical impairment that does

substantially limit one or more of the major life activities as

demonstrated by his continued use of a walk ing cane.

48. Petitioner was unable to satisfy the second prong of

the test for di sability discrimination because he did not

demonstrate that he was a qualified individual able to perform

the essential functions of the position (CSE) with or without an

accommodation. Petitioner simply cannot meet the weight lifting

requirement of the p osition based on his physician - imposed

weight restrictions.

49. With regard to the third prong, Petitioner received

STD benefits and then LTD benefits that were less than his

regular salary; however , he has been retained by Respondent on

LTD for over 14 c ontinuous months. Respondent has waited for

Petitioner ' s medical clearance so that he could return to work.

Such clearance has not been forthcoming, and a definitive date

for that has not been provided. Petitioner has been advised

multiple times that he could apply (via Eatonjobs.com) for any

position which he could physically perform, yet he has chosen

not to do so.

50. Petitioner has been unable to demonstrate that the

treatment he received is disparate from other similarly - situated

individuals.

51. If or when a petitioner proves a prima facie case of

discrimination, the burden shifts to the respondent to proffer a

legitimate, non - discriminatory reason for the action it took.

Texas Dep ' t. of Com. Aff. v. Burdine , 450 U.S. 248, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (1981). The respondent ' s burden is one

of production, not persuasion.

52. In the present case, however, Petitioner only met the

initial burden of proof as to his status as a member of a

protected class, he sustained a non - work related injury;

therefore , he was/is disabled. (No determination as to the

permanency of the disability is being made here.)

53. Although Petitioner only met one prong of the test,

Respondent was not obligated to prove a non - discriminatory

reason for his circumstance. However , Respondent provided

evidence that Petitioner was treated in accordance with its

stated published policies.

54. Respondent, in addressing Petitioner ' s medical

disability, encouraged Petitioner and provided him the

opportunity to apply for other p ositions for which he was

qualified and for which the physician - imposed weight restriction

would not be an issue. The fact that Petitioner did not afford

himself of that opportunity is not Respondent ' s responsibility.

55. Petitioner was not an active emp loyee when Respondent

offered various CSE training programs. Respondent was not

required to train Petitioner for a new light - duty position, when

Respondent did not have any light - duty positions.

56. Petitioner was not an active employee when

Respondent ' s 2009 merit raises were effectuated in 2010.

Respondent ' s policies clearly state that , in order to receive a

merit award, those employees on leave cannot be planned for ;

thus , Petitioner, who was on LTD leave , was not eligible for the

merit raise in July 2010.

57. Petitioner was not an active employee in 2010 when

Respondent requested the return of the leased vehicle.

Petitioner ' s own testimony was that he used the vehicle

90 percent of the time for company business and only 10 percent

for his own person al use. While Petitioner was not actively

working for Respondent (during either the STD or the LTD

periods), there was no company business for Petitioner to use

the vehicle.

58. Based on the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case that

Respondent discriminated against him based on his disability or

for any other type of discrimination. Accordingly, Respondent

cannot be found to have committed any of the unlawful

discriminatory employment practices alle ged in the Petition,

which is the subject of this proceeding. Therefore, the

employment discrimination charge should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issu ed by the Florida

Commission on Human Relations finding Eaton Corporation not

guilty of the alleged unlawful discriminatory employment

practices alleged by James Patrick Overly, II, and dismissing

his Petition for Relief in full.

DONE AND ENTERED this 2 4th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 4th day of January , 2012 .

ENDNOTES

1/ Mr. Hunsinger is licensed as an attorney in Washington state.

He was accepted as a q ualified r epresentative in this

proceeding.

2/ Mr. Doyle is licensed as an attorney North Carolina. He was

accepted as a q ualified r epresentative in this proceeding.

3/ Petitioner ' s exhibits were originally sequentially numbered

starting with n umber 101 through 122. For ease of reference,

when admitted into the record, Petitioner ' s exhibits were

numbered sequentially starting with the number 1.

4/ Although unusual, it is not unheard of to accept exhibits of

the opposing side during the case - i n - chief, provided there is no

objection from the party who would have offered the exhibit.

There was no objection from Respondent ; thus , those selected

exhibits were admitted during Petitioner ' s case - in - chief.

5/ There was no testimony offered regardin g Sedgwick ' s workers '

compensation claims process or program.

6/ Both parties agreed that Respondent ' s Exhibit 1 contained the

appropriate CSE job description.

7/ Mr. Irish was initially hired as a CSE II, but through his

years of experience working fo r Respondent, he rose through the

ranks from CSE II, to CSE III, to s enior CSE to his current

position as a s enior t echnologist. He has the same duties as a

CSE, but he also has additional administrative responsibilities

and other duties.

8/ Respondent provides each CSE a battery lift. This device is

on rollers and consists of a hydraulic platform that can be

raised four or five feet to enable a CSE to remove battery trays

from various large - sized battery systems. (The batteries may

weigh over 80 pound s.) A battery lift weighs approximately

200 pounds. When needed, a CSE has to roll the battery lift

from a storage location to the service vehicle, push the battery

lift up a ramp into the vehicle, drive to the work site , and

remove the battery lift for use. Once the work site is

completed, the CSE must reverse the process to return the

battery lift to a storage location.

9/ Petitioner ' s two - wheeled dolly could be converted to a four -

wheeled dolly if additional equipment was needed.

10/ A brand name, sturdy multi - meter device that reads voltage

in alternating current ( AC ) and direct current ( DC ) with a

probe. It can read amperage and resistance and is used for

troubleshooting.

11/ An infrared gun is used to look for hot spots on connections

or capa citors in the UPS.

12/ Safety gear is standard equipment provided by Respondent to

all CSEs. Any time a CSE enters a UPS room, that CSE must have

an arc flash - rated shirt, arc flash - rated pants, leather steel -

toed shoes or Kevlar steel - toed boots, and s afety glasses. When

exposed to higher voltage situations, a CSE must wear a hard

hat, tinted face shield, arc flash earplugs , high - voltage rated

gloves , and gauntlets.

13/ Petitioner initially paid $110.00 a month for use of the

company vehicle. At som e point , Respondent increased the fee.

14/ Stand - by service is usually provided with advanced notice

when a customer wants a CSE present as it performs a shutdown or

some other type of work. The CSE will download system

information from the unit before the shutdown and " stand - by " in

case an unexpected emergency occurs.

15/ Petitioner is not seeking redress after November 22, 2010;

therefore , further find in gs about his disability and recovery is

unwarranted.

16/ This other physician had examined Petit ioner on December 15,

2010, but did not submit the letter until January 2011.

17/ Mr. Leung ' s testimony is replete with phrases of " I don ' t

remember " (14 times) ; " I think " (20 times) ; " I ' m not sure "

( ten times) ; " it ' s been a long time " ; or " that ' s my bes t guess "

(or words to that effect) regarding his recollection of what he

did or did not do following both the 2007 and 2008 accidents.

Thus, his testimony , while minimally enlightening, is not

without doubt as to what actually occurred.

18/ References t o Florida Statutes are to Florida Statutes

(2011), unless otherwise indicated.

COPIES FURNISHED :

Frank D. Kitchen, Esquire

Constangy, Brooks and Smith, LLP

Post Office Box 41099

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32203

Mike Huns inger, Esquire

The Hunsinger Law Firm

100 South King Street, Suite 400

Seattle, Washington 98104

John J. Doyle, Jr., Esquire

Constangy, Brooks and Smith, LLP

100 North Cherry Street, Suite 300

Winston Salem, North Carolina 27101

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.