14-004695 Micheal D. Bristol vs. American Water Status: Closed Recommended Order on Monday, April 27, 2015.

Summary: Petitioner did not prove, by a preponderance of evidence, that his employer discriminated in violation of the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHEAL D. BRISTOL,

Petitioner,

vs. Case No. 14 - 4695

AMERICAN WATER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

February 17, 2015, in Pensacola, Florida, before R. Bruce

McKibben, a duly - designated Administrative Law Judge with the

Division of Administrative Hearings, pursuant to authority set

forth in section 120.57(1), Florida Statutes. Unless

specifically stated otherwise herein, all references to the

Florida Statutes will be to the 2014 codification.

APPEARANCES

For Petitioner: Therese A. Felth, Esquire

McKenzie Law Firm, P.A .

905 East Hatton Street

Pensacola, Florida 32503 - 3931

For Respondent: Rodrick D. Holmes, Esquire

Littler Mendelson PC

3725 Champion Hills Drive

Memphis, Tennessee 38125

STATEMENT OF THE ISSUE

Whether Respondent, American Water Service Company, Inc.,

(ÐAmerican WaterÑ), discriminated against Petitioner, Micheal D.

Bristol (ÐBristolÑ), in violation of the Florida Human Rights

Act and, if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On March 7, 2014, Bristol filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(ÐF CHRÑ). The complaint alleged discrimination by BristolÓs

employer, American Water, on the basis of BristolÓs handicap or

disability. FCHR issued a Determination: No Cause dated

September 8, 2014. Bristol timely filed a Petition for Relief

from an Unlaw ful Employment Practice on October 9, 2014. The

Petition was forwarded to the Division of Administrative

Hearings and assigned to the undersigned.

At the final hearing, Bristol testified on his own behalf

and called four additional witnesses: Sonya Jackson, RN, a

contract nurse with American Water; Preston Pallas, senior Human

Relations (ÐHRÑ) business partner with American Water; Laura

Delles, HR business partner with American Water; and Travis

Stabler, BristolÓs domestic partner. BristolÓs exhibits 1 - 3,

5 - 6, 10 - 11, 13, 16, 19 - 21, and 2 3 were admitted into evidence.

American Water did not call any witnesses, having presented its

case - in - chief through BristolÓs witnesses. American WaterÓs

exhibits 6, 12 - 13, 30 - 31, 34, and 36 - 37 were admitted into

evidence. American Water filed a Motion in Limine just prior to

commencement of the final hearing, seeking to exclude all

evidence and testimony concerning BristolÓs Family Medical Leave

Act (ÐFMLAÑ) leave taken during his employ at American Water.

The motion was denied with leave to raise objections to such

testimony during final hearing.

The parties agreed to order a transcript of the final

hearing. The parties requested 20 days after filing of the

transcript at DOAH to submit their p roposed r ecom mended orders;

the request was granted. The T ranscript was filed at DOAH on

March 5, 2015. Each party timely filed a P roposed R ecommended

O rder and each was considered in the preparation of this

Recommended Order. 1 /

FINDINGS OF FACT

1. Bristol is a 33 - year - old, Caucasian male. He has been

diagnosed with lumbar disk degeneration, depression, and

anxiety. He holds a General Education Degree. At all times

relevant hereto, Bristol was employed by American Water as a

customer service representative. A cu stomer service

representative fields calls from American WaterÓ s customers

concerning complaints, renewals, changes in services, or other

i ssue s. The customer service representative uses a telephone

and computer to respond to between 60 and 100 customer inquiries

per day. The customerÓs account information is brought up on

the customer service representativeÓs computer in order to

assist with whatever issue is raised concerning the customerÓs

complaint or issue.

2. A merican Water is a utilities company th at contracts

with municipalities to provide water and sewer services to the

citizens of the cities. It is a national company with water

utility customers in several states. It is governed in part by

the Public Utilities Commission and is charged with mee ting

certain standards regarding customer complaints. Having

customer service representatives who are available and qualified

is an important factor in meeting those standards.

3. There are between 200 and 2 50 customer service

representatives at American WaterÓs office in Pensacola,

Florida, where Bristol was employed. American Water has another

customer service center in Alton , Illinois , with about 200

customer service representative s . Calls coming in from

customers are routed to the first available representative,

regardless of at which service center they are working. Each

representative sits in a cubicle with a desk holding two

computer monitors, a telephone , and other necessary equipment.

The customer service representatives wear heads ets for the

telephone which have cords of five to six feet in length. The

back side of the cubicle is open to a common area.

4. It is imperative that American Water maintain an

adequate workforce of representatives each day. Using

historical data, American Water tries to estimate the number of

representatives who must be working each hour of each day. Some

days historically hav e more incoming calls than other days, and

American Water staffs accordingly. It is understood that some

employees may need to take sick leave from time to time. All

employees are given vacation days. Thus, making sure that there

are enough workers on any given day is a moving target, yet it

is integral to the work being done. American Water has

instituted policies to help assure adequate staff. For example,

there is a limit on the number of employees who may be on

vacation at any given time. Some employees are allowed to work

part time, but with a very definitive schedule. All employees

are re quired to notify American Water immediately if they are

unable to work on their assigned dates and times. Attendance is

a singularly important requirement for an American Water

cus tomer service representative.

5. A t some point in time after he was first hi red by

American Water, Bristol was diagnosed with a degenerative disk

disorder . The disorder causes him discomfort, making it

difficult to sit for long periods of time. (However, see

paragraph 19 , below.)

6. Bristol left his employment with American Water in

October 2010. In May 2011, he returned to American Water, again

as a representative in the customer service center. He had the

same duties as in his previous employment.

7. As Bristol began to experience more problems w ith his

back, he began to use up all of his annual leave and sick leave

when he felt he was unable to work. There was no evidence

presented at final hearing as to how many annual leave hours

employees receive, but each employee is allowed 80 sick leave

ho urs per year . In 2012 , Bristol applied for additional leave

under FMLA and was approved for 480 hours , equivalent to 60 full

work days . American Water approved i ntermittent leave under

FMLA for one day per month with up to two days per time. During

calendar year 2012 , Bristol used some but not all of his FMLA

leave.

8. Bristol reapplied for FMLA leave again in February

2013 , and was approved for another 480 hours. In that year, he

used all 480 hours of FMLA leave. Bristol took leave whenever

he felt like his back pain would prevent him from working . The

leave was described as ÐintermittentÑ because there was no

regular schedule or times associated with the leave. His

schedule was, therefore, contrasted from a part - time employee

who works fe wer hours on a predetermined but regular schedule.

9. On or about November 18, 2013, Bristol was notified

that his FMLA leave had been used up. He had also exhausted his

annual leave and sick leave allotment. Despite the fact that

BristolÓs intermittent leave had created scheduling problems for

the company , a n employee of American Water provided Bristol with

the necessary paperwork for requesting leave under the Americans

with Disability Act (ÐADAÑ) . Part of that paperwork was a

Health Care Provider Stat ement (ÐHCPSÑ) to be completed by his

physician. Bristol was advised that after completing the HCPS ,

American Water would try to ascertain whether there were any

accommodations they could provi de to him on the job. Bristol

submitted the HCPS to his treat ing physician to be completed and

returned to American Water.

10. Meanwhile, American Water tried to accommodate

BristolÓs condition. He was provided an ergonomic work station ,

having a desk that could be raised or lowered, allowing Bristol

to work while standing or sitting. He could change positions as

needed to alleviate his back pain as much as possible. He could

move, albeit not very far, within his small work area.

Contradictory testimony was presented as to the exact size or

configuration of the w ork space, so how much Bristol was able to

move around is not clear. It is clear, however, that American

Water attempted to accommodate his needs as much as the

situation allowed.

11. BristolÓs physician, Dr. Carie Fletcher , completed and

signed the HCPS on November 26, 2013. The form was provided to

American Water. Based upon the information supplied by

Dr. Fletcher, American Water notified Bristol by letter dated

December 2 , 2013 , that the current ergonomic work station and

job duties were sufficient accommodations for the malady

described by his doctor . Bristol said he did not believe the

accommodations w ere sufficient.

12. American Water thereafter asked Dr. Fletcher whether

she had anything to add concerning BristolÓs disability or

impairment. In response to that inquiry, Dr. Fletcher amended

her previous submission , specifically on sectio ns 4(b) and 7 of

the form. S ection 4(b) asks this question: ÐIs the Patient

Òsubstantially limitedÓ as to the condition, manner, or duration

under which the Patient can perform that major life activity as

compared to the condition, manner, or duration under which the

average person in the general population can pe rform that same

major life activity.Ñ Dr. Fletcher had originally stated,

ÐCannot stand/sit for prolonged periods (>1 hr), cannot lift

objects >25 lbs secondary to back pain.Ñ Upon American Water Ó s

inquiry, she added this statement: ÐMay expect exacerba tion of

back pain/D J D intermittently, up to 5 - 7 occurrences per month,

at two days per occurrence.Ñ 2 / The question at s ection 7 of the

form asked, ÐDoes the diagnosed condition or conditions affect

the PatientÓs ability to perform any one of the essential

funct ions of the PatientÓs position?Ñ. Dr. Fletcher originally

stated: ÐRecommend allowing frequent position changes, limit

lifting; will likely still experience intermittent exacerbations

of back pain.Ñ When American Water asked for additional detail,

Dr. Fletcher added: ÐPlease allow pt to stand and walk at

liberty for approx five minutes every hour.Ñ The amendments

were provided to Am erican Water on December 10, 2013.

13. American WaterÓs HR personnel discussed the doctorÓs

recommendations and decided that the ergonomic work area and the

extension cord on the telephone headset would allow Bristol the

movement and flexibility needed. Lif ting heavy objects was not

part of BristolÓs job duties, so that was not discussed.

14. Dr. Fletcher did not sp e cifically suggest intermittent

leave for Bristol, nor did she state that he would need to take

leave five to seven times per month at one to two days per time.

Rather, her response to American WaterÓs inquiry was that

Bristol Ðmay expect exacerbationÑ of his condition five to seven

times a month. In section 8 of the form Î which is the section

for the physician to recommend accommodations Î Dr. F letcher

wrote only, ÐAs noted above.Ñ (Again, see endnote 2, below).

15. On January 31, 2014, American Water again contacted

Dr. Fletcher for additional information. She was asked about

BristolÓs mental or psychological disorder, to which she

replied, Ð depression and anxietyÑ but that the condition did not

currently limit BristolÓs activities. As to the lumbar disk

degeneration, the limitations were listed as, Ðlimits his

ability to sit/stand/lift items and duration of work tolerated.Ñ

Dr. Fletcher was provided a matrix outlining BristolÓs essential

job functions and asked what accommodations might be warranted

for each.

16. Dr. Fletcher replied to those inquiries on February 6

as follows (paraphrased) :

As for typing, Bristol may need to take

breaks every hour;

As for sitting, Bristol should be allowed to

move/walk for five minutes every hour;

As for standing, Bristol should be allowed

to sit/ rest for five minutes every hour;

As to whether he could work full time, i.e.,

attenda nce, yes, as long as the previously

noted accommodations were provided.

17. It is significant that Dr. Fletcher again did not

recommend intermittent leave for Bristol. Bristol nonetheless

continued to ask American Water to approve intermittent leave as

an a ccommodation. The primary reason American Water would not

approve intermittent leave for Bristol was that it was necessary

to be able to staff the customer service center at all times.

Allowing employees to miss work randomly would adversely affect

Ameri can WaterÓs ability to insure adequate staff. In fact,

American Water considered Bristol a very good employee and would

have preferred to retain him if possible. This was despite an

allegation that Bristol had forwarded computer screen shots of

customers to his personal email address, a terminable offense.

18. American Water considered its actions to be in

compliance with the recommendations of Dr. Fletcher. Althou gh

attached to a headset wire, Bristol had some minimal ability to

move about his work space. He was able to stand when he needed

to stand and sit when he needed to sit. He was not required to

lift anything over 25 pounds. He was able to leave his work

station to walk around every hour or so, but would have to log

out temporarily to do so. Employees could log out using a

special Ð AU XÑ code for bathroom breaks.

19. It must be noted that during the entirety of the final

hearing, Bristol sat without taking (or asking for) any breaks.

He did not take advantage of breaks requested by others; rather,

he remained seated as he talked with his counsel. His

willingness and ability to remain s eated during the final

hearing flies in the face of his stated difficul ties while

working at American Water. While there may be some unstated

reason that Bristol did not need relief at the final hearing,

without some explanation th at fact significantly affects the

credibility of his testimony. 3 /

20. Bristol continued to miss many days (or parts of days)

at work after his FMLA leave was used up. Being away from oneÓs

work station for over an hour was considered an absence by

American Water . 4 / He presumed that those absences would

ultimately be covered or approved under his anticipated ADA

leave , but no one ever told him that would be the case (nor did

he inquire about it) . His presumption was based on the fact

that his prior absences while applying for FMLA leave had been

covered once FMLA was approved. While waiting for a response to

the ADA leave request, Bristol continued working at American

Water Î and continued missing all or parts of days from work.

He would ask his direct supervisor , Shelby Weese, about the

status of his ADA application from time to time, but she did not

have any information from HR to share with him.

21. On February 13, 2014, Bristol and his union

representative (Courtney Brown) met with HR business partner

Delles. B ristol at that time explained that he believed his ADA

leave would be retroactively applied to his unexcused

absences. At this meeting, Delles explained that the FMLA leave

Bristol had taken previously was mandated by law, i.e., American

Water could not o bject to the leave once Bristol was approved .

To obtain FMLA leave, an employee needs only to work the

requisite number of hours in their job. Thus, he was allowed to

miss numerous days of work without recourse. The ADA leave,

however, was different; th e requirements for approval of ADA

leave are more stringent than for FMLA leave. An employer does

not have to grant ADA leave, but is required to approve FMLA

leave if the employee qualifies.

22. At the meeting with Delles, Bristol advised her that

he would be filing a claim against American Water with the

Employee Equal Opportunity Commission. This was despite the

fact that American Water had attempted to provide

accommodations. Further, Bristol had never been chastised or

reprimanded by American Water fo r applying for ADA leave or FMLA

leave. In fact, American Water had prompted Bristol to apply

for ADA when his FMLA leave was exhausted.

23. All the while, Bristol continued to be absent from

work in excess of his available leave. Bristol had been

notified on June 12, 2013, that he was being issued a Level I

verbal warning for non - attendance pursuant to American WaterÓs

attendance policy. On that same day, he was notified that he

was being issued a Level II written warning for non - attendance

due to a second occurrence . On November 15, 2013, he was given

a Level III final written warning for non - attendance.

24. A Level I verbal warning is issued when an employee

uses up his sick leave and annual leave and then misses between

one hour and one full day of work, i.e., an unexcused absence.

The warning would remain ÐactiveÑ in an employeeÓs file for up

to six months. A Level II written warning is issued when the

employee has a second unexcused absence while the verbal warning

was still a ctive . The Level II warning would remain active for

up to 12 months. A Level III final warning is issued when there

is a third unexcused absence while the Level II warning was

still active . If there is a fourth unexcused absence, the

employeeÓs contract of employment will be terminated. American

Water followed its progressive discipline polic y regarding

BristolÓs absences.

25. On February 24, 2014, Bristol was notified by American

Water that his employment was being terminated. The stated

reason for the termination of employment was excessive absences.

The letter of notification indicated absences of over one hour

on 34 additional days following his final written warning.

26. Bristol refused to accept the accommodations suggested

by American Water. He maintained that the only way he could

continue working was to be allowed to take intermittent leave

whenever he felt the need. American Water could not agree to

that plan becaus e it had a defined need for customer service

representatives to be available on the days they were scheduled,

except for normal expectation of sickness or other unforeseen

reasons for being absent. Otherwise, American Water would find

it impossible to eff ectively schedule the necessary number of

representatives on any given day.

27. American Water did not offer Bristol an alternative

job because, as a union member, he was in the only job covered

by the union. Whether he could have withdrawn from the union

was not discussed with Bristol (or addressed at final hearing) .

28. After termination of his employment at American Water,

Bristol became employed as a Ðsalad chefÑ at a local restaurant

called J ac oÓs. He works approximately seven hours each day and

stand s for the duration of his work shift , but he gets to walk

around the kitchen area . Bristol did not say whether J ac oÓs was

asked to provide any accommodations for his disability. This

fact , too , negatively colors BristolÓs credibility concerning

his claim s against American Water.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Statutes.

30. The Florida Civil Rights Act of 1992 (the ÐActÑ or

Ð FCRA Ñ) is codified in sections 760.01 Î 760.11, Florida Statutes.

The ActÓs general purpose is Ðto secure for all individuals

within the state freedom from discrimination because of race,

color, religion, sex, national origin, age , handicap, or marital

status and thereby to protect their interest in personal

dignity, to make available to the state their full productive

capacities, to secure the state against domestic strife and

unrest, to preserve the public safety, health, and gen eral

welfare, and to promote the interests, rights, and privileges of

individuals within the state.Ñ £ 760.01, Fla. Stat. When Ða

Florida statute [such as the FCRA] is modeled after a federal

law on the same subject, the Florida statute will take on the

same constructions as placed on its federal prototype.Ñ Brand

v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

Therefore, the FCRA should be interpreted, where possible, to

conform to Title VII of the Civil Rights Act of 1964, which

contai ns the principal federal anti - discrimination laws.

31. Also, FCRA discrimination claims are analyzed under

the same framework as claims under the Americans with

Disabilities Act. See Rabb v. Sch. Bd. Orange C nty , 590 Fed.

Appx. 849, 850 (11 th Ci r. 2014); DÓAngelo v. ConAgra Foods,

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

32. Section 760.10 provides, in relevant part:

(1) It is unlawful employment practice for an

employer:

(a) To discharge or fail or refuse to hire

any individual, or otherwise to

discriminate against a ny individual

with respect to compensation, terms,

conditions, or privileges of

employment, because of such

individualÓs race, color, religion,

sex, national origin, age, handicap, or

marital status.

33. American Water is an employer pursuant to s ection

760 .02(7), Florida Statutes. Bristol is an employee as defined

in 42 U.S.C. § 12111(4).

34. The t erm ÐdiscriminateÑ as used in section 760.10

includes Ðnot making reasonable accommodations to the known

physical or mental limitations of an . . . employee, unles s such

covered entity can demonstrate that the accommodation would

impose an undue hardship on the operation of such covered

entity Ñ . 42 U.S.C. § 12112(b)(5)(A). A Ð failure to make

reasonable accommodation Ñ claim does not require animus or

intent; it occurs when the covered entity fails to fulfill its

duty to make a reasonable accommodation to the known physical or

mental limitations of an otherwise qualified employee with a

disability. However, the employe r must demonstrate that the

proposed accommodation would impose an undue hardship on the

operation of the business. See Nadler v. Harvey , No. 06 - 12692,

2007 WL 2404705 (11 th Cir. Aug. 24, 2007).

35. In the present case, American Water attempted to

provide B ristol with reasonable accommodations for his

disability. The work station was modified to allow Bristol

opportunity to sit or stand as needed, and the extended

telephone cord gave him some range of motion (albeit not much,

and not as much as Bristol want ed). From the totality of the

evidence presented, the accommodation was sufficient. BristolÓs

demand for unlimited and unscheduled absenc es was not an

accommodation that could be granted by American Water if it was

to maintain a regular and reliable work force each day.

36. BristolÓs request for intermittent leave was not an

accommodation for doing the job of customer service

representative; it was an accommodation for not violating

American WaterÓs absentee policy. The job of customer

representative was one that had to be performed on - site, thus

American WaterÓs proposed on - site accommodation was reasonable.

The request for intermittent leave was not reasonable as it did

not relate to BristolÓs ability to perform the functions of the

position.

37. Still, an analysis of BristolÓs claim is in order to

make it clear that, even without an accommodation, his claim for

relief fails.

38. To establish a prima facie case of disability

discrimination under the ADA and FCRA, the employee must show:

(1) he has a disability; (2) he is a qualified individual,

meaning he is able to perform the essential functions of the

position with or without accommodation; and (3) the employer

unlawfully discriminated against him because of the disability.

Raytheon Co. v. Hernand ez , 540 U.S. 44, 49 n.3 (2003); DÓAngelo

v. ConAgra , supra ; Holly v. C lai rson Indus. L.L.C. , 492 F.3d

1247, 1255 - 56 (11 th Cir. 2007); and Morisky v . Broward Cnty . , 80

F.3d 445, 447 (11 th Cir. 1996).

39. Bristol meets the first prong of the analysis, as his

degenerative disk disease substantially limits one or more of

his major life activities. Further, American Water tacitly

accepted the fact that Bristol was a disabled person.

40. To satisfy the second prong, Bristol must show that he

is a qualified individual with a disability. That is, he must

show that he is Ðan individual who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such indi vidua l holds or desires.Ñ

42 U.S.C. § 12111(8); Davis v. Fla. Power & Light Co. , 205 F.3d

1301, 1305 (11 th Cir. 2000). There is a two - step inquiry to be

made in order to determine whether the individual is a

Ðqualified individualÑ under the ADA: 1) Whether the individual

satisfies the requisite skills, experience, education and other

job - related requirements, and 2) Whether the individual can

perform the essential functions of the position, with or without

accommodations. Criado v. IBM Corp. , 145 F.3d 437, 4 43

(1 st Cir. 1998).

41. Clearly Bristol satisfied the first part of the

inquiry. He had already proven that he could handle the

requirements of the job and was considered a good employe e .

However, the position required the employee to be present a t the

customer call center in order to perform those functions. The

reasonable accommodations suggested by American Water to allow

Bristol to be present were rejected by Bristol as inadequate.

Rather, he demanded intermittent leave as an accommodation, i n

effect allowing him to work at a completely random schedule as

allowed by his back pain. American Water clearly articulated

the reasons such a schedule would not be acceptable and that

attendance at the call center was paramount. Inasmuch as

Bristol could not perform the functions of the job from his

home, he could not perform the job functions with or without an

accommodation.

42. The third prong of the discrimination inquiry is

whether the employee was subjected to unlawful discri mination.

There is no evidence in the record that American Water

discriminated against Bristol at all. The employer consented to

BristolÓs use of FMLA leave; it assisted Bristol in attempting

to obtain leave under the ADA; American Water provided an

ergo nomic work station. In total, the record is clear that

American Water wanted Bristol to be an employee, but BristolÓs

inability to work Î even with accommodations Î did not allow him

to do so. Bristol, just like every other employee in the

customer call center, was expected to be at work on a regular

and predictable schedule (excluding emergencies or occasional

sick days). He was treated just the same as all other, non -

disabled employees.

43. Section 760.10(7) states that it is unlawful for an

employer to Ðdiscriminate against any person because that person

has opposed any practice in which an unlawful employment

practice under this section, or because that person has made a

charge, testified, assisted, or participated in any manner in an

investigation, pro ceeding, or hearing under this section.Ñ

BristolÓs claim of retaliation by American Water fails because

of the absence of sufficient evidence as to BristolÓs alleged

EEOC claim, i.e., whether it was specifically related to the

actions which gave rise to t he instant proceeding. There is no

evidence that Bristol ever even filed such a claim.

44. As a result of the conclusions of law above, there is

no reason to discuss damages or other relief for Bristol.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered finding

that American Water Service Company, Inc. , did not discriminate

against Micheal D. Bristol.

DONE AND ENTERED this 24th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April , 2015 .

ENDNOTES

1 / The P roposed R ecommended O rder submitted by American Water

based some of its findings on its exhibits 19 - 21, 24 - 26, 29, and

38. However, those exhibits were not admitted into evidence and

the proposed findings supported by the exhibits were not

considered in this Recommended Order .

2 / Unfortunately, Dr. Fletcher did not testify at final hearing

nor was her deposition transcript offered into evidence.

Therefore , it is difficult to determine what she specifically

meant by her written comments. They were not particularly

responsi ve to the questions asked and were somewhat general in

nature.

3 / This finding is not meant in any way to diminish or dismiss

the discomfort Mr. Bristol may be experiencing due to his lower

back pain. It is obvious from his medical records that he has

been dealing with the situation for a number of years.

However, his demeanor and behavior during final hearing in this

matter was not consistent with his statements concerning a need

for hourly relief.

4 / Had Bristol taken a five minute break every h our of an eight -

hour work day, i.e., at 9:00, 10:00, 11:00, then lunch, 2:00,

3:00, and 4:00, that would constitute only 30 minutes away from

his desk. An absence was defined as over one hour in length.

No one at final hearing discussed or explained why those

intermittent breaks would not be sufficient for BristolÓs needs.

COPIES FURNISHED :

Therese A. Felth, Esquire

McKenzie Law Firm, P.A.

905 East Hatton Street

Pensacola, Florida 32503 - 3931

(eServed)

McCray Pettway, Esquire

1025 Laurel Oak Road

Voorhees, New Jersey 08043

Melanie Zaharias, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue, Suite 1250

Orlando, Florida 32801 - 2366

(eServed)

Rodrick D. Holmes

Littler Mendelson, P.C.

3725 Champion Hills Drive

Memphis, Tennessee 38125

(eSer ved)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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.