15-000609 Roderick E. Billups vs. Emerald Coast Utilities Authority Status: Closed Recommended Order on Friday, June 19, 2015.

Summary: Petitioner failed to meet his burden of proving that he was a qualified individual, and that Respondent failed to provide reasonable accomodation for his disability.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RODERICK E. BILLUPS ,

Petitioner ,

vs. Case No . 1 5 - 0609

EMERALD COAST UTILITIES

AUTHORITY ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, thi s case was heard on May 15, 2015 , by

video teleconference at sites in Tallahassee, Florida , and

Pensacola , Florida , before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola , Florida 32 501

For Respondent: Bradley S. Odom, Es quire

Odom and Barlow, P.A.

1800 North E Street

Pensacola , F lorida 32 501

STATEMENT OF THE ISSUE

Whether the Petitioner was subject to an unlawful

employment practice by Respondent, Emerald Coast Utilities

Authority , as a result of its failure to accommodate

PetitionerÓs disability , in violation of s ection 760.1 0, Florida

Statutes (2014) .

PRELIMINARY STATEMENT

On September 15, 2014 , Petitioner, Roderick E. Billups

(Petitioner) , filed a complaint of discrimination w ith the

Florida Commission on Human Relations (FCHR) which alleged that

Respondent, Emerald Coast U tilities Authority (ECUA or

Respondent ) , violated s ection 760.10 by discriminating against

h im as a result of its failure to provide reasonable

acco m modation for his work - related d isability .

On January 9, 2015 , the FCHR issued a Determinatio n:

No Cause an d a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On January 29,

2015 , Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was initially set for March 26 , 201 5 , and

was subsequently rescheduled for May 15, 2015.

On April 28, 2015, ECUA filed a motion to dismiss the

petiti on for relief based upon the alleged res judicata effect

of an employment termination case , DOAH Case No. 14 - 3100 , heard

by the DOAH pursuant to a services contract for employee

discipline proceedings and bid disputes. The motion was denied .

A prehearing stipulation was filed by the parties on May 6,

2015. Those facts admitted by both parties are incorporated

herein.

At the final hearing, Petitioner testified on h is own

behal f. Petitioner Ó s Exhibit s 1 - 9 and 11 - 12 were received in

evidence. Petitione rÓs Exhibit 4 was originally identified as a

transcript of the predetermination/liberty interest hearing held

prior to PetitionerÓs termination. After an objection as to the

accuracy of the transcript, it was agreed that the transcript

would be replaced b y the audio recording of the hearing. Th e

audio recording was filed on May 20, 2015 , and received in

evidence as PetitionerÓs Exhibit 4.

PetitionerÓs Exhibit 10, which consisted of an excerpt of

the T ranscript in DOAH Case No. 14 - 3100, was offered in e vidence

for the purpose of the stipulation of ECUAÓs counsel in that

case at page 7, line 24 through page 8, line 4 . The stipulation

described the circumstances of the postponement of PetitionerÓs

February 19, 2014 , surgery . Petitioner argued that the

st ipulation was admissible as an admission of a party

representative, while ECUA argued that a line of Supreme Court

cases holds that a stipulation in a separate proceeding is

inadmissible to establish the truth of the stipulated matter.

The undersigned res erved ruling on the admission of PetitionerÓs

Exhibit 10, pending the briefing of the issue in the partiesÓ

post - hearing submittals. In its P roposed R ecommended O rder,

ECUA correctly noted that Ðthe stipulation in question, i.e.,

why surgery was delayed, was otherwise orally presented at the

hearing, making the admissibility of that exhibit moot. It is

worth noting, however, admissions made in a case are not

generally admissible in another proceeding . See , e.g. , r ule

1.370(b), Fla. R. Civ. P. Ñ The stipu lation at issue was not

made in the context of a response to discovery under r ule 1.370 ,

but as an on - the - record stipulation of fact by PetitionerÓs

counsel . Thus, the statement is admissible pursuant to section

90.803(18)(c) , Florida Statutes (2014) . Fu rthermore, the

statement is entirely consistent with the explanation of the

circumstances of the postponement of surgery provided by

Petitioner and ECUA employee , Kimberly Scruggs. Having reviewed

the arguments made, PetitionerÓs Exhibit 10 is received in

evidence .

At the final hearing, R espondent presented the testimony of

Kimberly Scruggs, the ECUA Human Resource Generalist; Cynthia

Sutherland, the ECUA Director of Human Resources and

Administrative Services; and Ernest Dawson, the ECUA Director of

R egional Services. R espondentÓs Exhibit s 1 - 22 and 25 were

received in evidence.

RespondentÓs Exhibits 23 and 24, consisting of the

Recommended Order entered by the DOAH, and the Final Order

entered by the ECUA, in Case No. 14 - 3100, were offered in

evide nce. The undersigned reserved ruling on the admission of

the exhibits , pending the briefing of the use to which the

orders could be put , either as a matter of official recognition

or under an exception to the hearsay rule, in the partiesÓ post -

hearing sub mittals. Having reviewed the arguments made,

RespondentÓs Exhibit s 23 and 24 are found to be entirely

hearsay . The Recommended Order, having been entered under the

authority of a contract for services between the ECUA and the

DOAH, and the Final Order en tered by the ECUA, do not fall

within any exception to the hearsay rule in section 90.803, and

are not subject to official recognition under rule 28 - 106.213(6)

or sections 90.201 - .203 . However, hearsay is admissible in

administrative proceedings under cha pter 120, and Ð may be used

for the purpose of supplementing or explaining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil actions . Ñ

§ 120.57(1)(c), Fla. Stat. Therefore, RespondentÓs Exhibits 23

and 24 are received in evidence subject to the limitations

applicable to hearsay evidence.

A two - volume Transcript of the hearing was filed on May 26,

201 5 . At the request of the parties, proposed recommended

orders were to be filed on June 16, 2015 , 21 days from the date

of the filing of the T ranscript . The parties timely filed their

post - hearing P roposed R ecommended O rder s, which have been

considered in the preparation of this Recommended Order.

References to statutes a re to Florida Statutes (201 4 )

unless otherwise noted.

FINDINGS OF FACT

1 . ECUA is a local governmental body which was formed by

the Florida Legislature . It provides water, wastewater (sewer),

and sanitation collection services in and around defined area s

of Escambia County, Florida. ECUA employs more than 15 full -

time employees at any given time.

2 . Petitioner began his employment with ECUA in September

1995 as a Refuse Collector/Driver in ECUA's Sanitation

Department . In 1999, Petitioner transferred to ECUA's Regional

Services Department . At all times relevant hereto, he held the

position of Utility Service Technician II.

3 . On or about June 28, 2012, Petitioner was given a copy

of the ECUAÓs revised Human Resources Manual and Employee

Handbook (M anual) . The M anual contain s ECUA's human resource

policies, including those for discipline and termination of

employees.

4 . Section B - 13 of the M anual establishes disciplinary

guidelines, including Ðgeneral examples of unacceptable employee

conduct for which the employee may be disciplined up to and

including termination of employment.Ñ Section B - 13 A.10 .

provides that Ðdisciplinary offensesÑ include :

10. Failure to maintain job qualifications:

Failure to maintain required licenses,

certifications, or other similar

requirements such that an employee is no

longer qualified for a position or can no

longer perform assigned duties.

5 . Section D - 16 of the Manual establishes procedures for

work related injuries suffered by ECUA employees . In addition

t o procedures for reporting and treating injuries, the Manual

establishes that Ð[w]hen temporary, light, or unusual duties are

suggested; these will be reviewed and, if available, arranged by

the Human Resources Department staff, the supervisor and/or

depar tment head.Ñ Section D - 16 A.2. further provides that:

Employees will return to work anytime they

are medically able, up to six (6) months

from the date of injury. At that point, if

unable to return to work the employee must

retire, resign, or be termina ted. The

department head, after consultation with the

Human Resources Director, may extend this

time based on evaluation of the employee's

ability to return to work.

6 . ECUAÓs Regional Services Department has 111 employees,

who are responsible for the maintenance of all water and

wastewater services and infrastructure for the ECUA, including ,

approximately , 1,200 miles of water lines; 1,000 miles of

wastewater lines; 22,000 manholes; 20,000 valves; 10,000 water

hydrants; and 473 air - release valves. Man y of the valves are

underground, often under asphalt or concrete.

7 . The ECUA position description for Utility Service

Technician II (UST II) describes the requirements of the

position as:

having sufficient physical ability and

mobility to work in a f ield environment; to

walk, stand, and sit for prolonged periods

of time; to frequently stoop, bend, kneel,

crouch, crawl, climb, reach, twist, grasp,

and make repetitive hand movement in the

performance of daily duties; to lift, carry,

push, and/or pull mo derate to heavy amounts

of weight; to operate assigned equipment and

vehicles; and to verbally communicate to

exchange information.

8 . Lifting heavy objects is a daily component of the UST

II position. Items that are routinely lifted off of the job -

sit e truck include pumps that can range from 50 to 80 pounds , 50

to 70 pound jackhammers, ductile and friction saws that weigh 50

to 60 pounds , and sections of pipe that can weigh from 25 to 100

pounds. While the pumps, saws, and other equipment can be

retri eved from the bed of the truck, lengths of pipe are

frequently carried on overhead racks. In addition to lifting

tools and equipment from the truc k, the job requires lifting

100 - pound manhole covers using a hook, cutting asphalt and

concrete with saws, di gging to find leaks and access valves, and

loosening valves that may not have been turned for decades.

M anual dexterity is necessary when a utility worker is in a

hole, where they may be called on to grab tools and items passed

down to the UST, or get pas t items in the hole.

9 . Mr. Dawson testified credibly that UST work is very

strenuous, involving work conditions and positions that are Ðnot

ergonomically sound, Ñ and becomes more - so when fatigue sets in.

He further testified that given the demands of t he job, one

cannot expect to perform while keeping his or her arms close in

to their body, stating that ÐitÓs hard to short - arm a heavy

pump.Ñ

10 . On December 18, 2013, the Petitioner incurred an on -

the - job injury to his shoulder. The injury occurred while

Petitioner was bearing down to loosen a valve that had become

ÐfrozenÑ as a result of having not been turned for a long period

of time. While pulling up, he fel t something ÐpopÑ in his arm.

He finished up the job as well as he could. The shoulder injury

was initially described as a strain or sprain.

11 . After his work injury , Petitioner was directed to

Sacred Heart Medical Group to be treat ed . Dr. Albrecht placed

initial restrictions on Petitioner to avoid stooping, kneeling,

crawling, climbing, and commercial driving. He was also limited

to lifting only up to 15 pounds and pushing and pulling 15

pounds.

12 . As a result of the injury, Petitioner took authorized

leave under the Family Medical Leave Act (FMLA) beginning

December 19, 2013 . As su ch, Petitioner was entitled to job -

protected leave for a period of twelve weeks. At that time,

Petitioner became eligible for, and received, workers Ó

compensation benefits.

13 . In January 2014, when it became apparent that

Petitioner was going to be out for an extended period , a

temporary employee was hired. However, the temporary employee

was insufficient to meet the workloads of the Regional Services

department , requiring closer supervision, and being limited in

the work that the employee could perfor m independently .

14 . On January 2, 2014 , Petitioner was treated by his

physician and was restricted from pushing, pulling, or lifting

more than 15 pounds. He was to avoid climbing and commercial

driving. He was also to avoid lifting more than five po unds

with his right arm. His physician further opined th at he was to

be kept on a light - duty status and prescribed physical therapy.

The diagnosis was Ðrevised to strain of right shoulder.Ñ

15 . On January 23, 2014, Petitioner was treated by his

physici an, Dr. Albrecht, who opined that conservative treatment

had been maximized and a referral to orthopedic physician was

made. Petitioner's restrictions remained the same, namely he

was restricted from pushing, pulling, or lifting more than 15

pounds. He w as to avoid climbing and commercial driving. He

was a lso to avoid lifting more than five pounds with his right

arm.

16 . Petitioner was seen on February 11, 2014 , by

Dr. Turnage, an orthopedic specialist . Dr . Turnage Ós impression

was that Petitioner h ad Ðprobable labral pathology and/or

partial rupture of the biceps.Ñ Surgery was recommended.

17 . Surgery was originally scheduled for February 19,

2014, but was delayed due to a problem in the process of

approving the procedure by ECUAÓs third - party ad ministrator for

workersÓ compensation claims . Approval was ultimately obtained,

and Petitioner was scheduled for surgery on March 14, 2014.

18 . Although PetitionerÓs auth orized FMLA leave was

exhausted on March 12, 2014, Petitioner was not terminated f rom

employment.

19 . Petitioner presented for the scheduled surgery on

M arch 14, 2014 . As the procedure commenced, PetitionerÓs blood

pressure fell to a degree that the surgeon terminated and

postponed the surgery so that Petitioner could be evaluated by a

cardiologist to determine if he could safely undergo surgery.

Petitioner passed the Ð cardio test,Ñ and the surgery was

rescheduled .

20 . By letter dated March 26, 2014, Petitioner was advised

that, before he could be restored to employment, he would have

to be able to perform the essential functions of his position,

as evidenced by a Ðfitness - for - duty certificate.Ñ

2 1 . The surgery on PetitionerÓs right shoulder and bicep

was finally performed on April 16, 2014.

2 2 . Petitioner next saw Dr. Turnage on April 29, 2014,

approximately two weeks after surgery. Petitioner was, at that

time, in a sling and an immobilizer . At that point , Dr. Turnage

was of the opinion th at Petitioner could not perform duties even

at the sedentary level , and recommended th at Petitioner

undertake physical therapy.

23 . On April 30, 2014, the Pensacola area experienced a

200 - year rain event which caused significant damage to ECUAÓs

water and wastewater systems. Mr. Dawson described the damage

to ECUAÓs infrastructure as be ing worse than that caused by

Hurricane Ivan. Repair of the water and wastewater systems was

not work that could be delayed. In addition, ECUA was

implementing Department of Environmental Protection requirements

for its air release valves, as well as per forming routine

maintenance and upgrades. Due to the Regional Service

departmentÓs extraordinary needs, Mr. Dawson determined that

PetitionerÓs position needed to be filled by a person who could

physically perform all of the required duties.

24 . ECUA p roved it was under extraordinary pressure due to

the 200 - year storm event of April 30, 2014, and needed Ðall

hands on deckÑ who could perform the essential functions of the

job. Maintaining the UST II position open for an indefinite

period while waiting f or Petitioner to recover from his injury ,

thus necessitating the continued use of a less - capable temporary

employee, would have been contrary to the interests of ECUAÓs

customers, and an undue hardship to ECUA.

25 . At some unspecified time after his s urgery, Petitioner

inquired as to whether he could repair water meters as a light -

duty job with ECUA. He had performed that job during a period

in 2005 in which he was restricted from duty due to a work -

related injury. Repairing meters is not an essentia l function

of a UST. A meter repair technician is a separate position

within ECUA, with a separate job title.

26 . Petitioner also requested that he be allowed to

perform Ðcut - non - payÑ work, which involves the termination of

water service connections f or non - paying customers. ÐCut - non -

payÑ is performed by a service technician, which is a separate

position within ECUAÓs Customer Service department, with a

separate job title.

2 7 . PetitionerÓs inquiries regarding light - duty work were

forwarded to Ms. Sc ruggs. Ms. Scruggs testified that she made

inquiry to the Regional Services department and to the

Sanitation department as to the availability of light - duty work

for Petitioner, but there was none. Ms. ScruggsÓ inquiries

continued after the expiration of PetitionerÓs FMLA leave, and

up to the date of his termination, but there were no light duty

opportunities within his restri ctions and qualifications.

Mr. Dawson also testified that the meter technician positions

were fully staffed. There was no evidenc e to the contrary.

28 . On May 27, 2014, Dr. Turnage executed a WorkersÓ

Compensation Uniform Medical Treatment/Status Reporting Form in

which he identified PetitionerÓs work restrictions as sedentary

duty, with a ÐlikelyÑ r eturn to duty with no restric tions six

weeks hence.

29 . By letter dated June 3, 2014, Petitioner was advised

by ECUA that, if he could not return to work by June 18, 2014,

six months from the date of his injury, he would be terminated

pursuant to sections B - 13(10) and D - 16 of ECUAÓs employee

handbook , and that ECUA had reviewed the circumstances and

determined there to be Ð no cause for any further extension of

your inactive work status.Ñ The letter also advised Petitioner

of his right to a predetermination/liberty interest hearing t o

contest the basis for his recommended termination, including the

opportunity to Ðprovide any documents, explanations, or

comments . Ñ

30 . On June 19, 2014, the predetermination/liberty

interest hearing was held . Up to that date, ECUA had not

received a medical clearance for Petitioner to return to full

duty. Petitioner indicated that his physical therapy was

proceeding well and he believed that he would be cleared for

duty on July 15, 2014. Petitioner stated that he could get a

letter to that effect fr om Dr. Turnage on that day , since the

doctor would be in his office, and asked that ECUA hold off on

its decision. Petitioner also indicated that he would go to the

office of his physical therapist immediately upon the conclusion

of the hearing to get a c urrent assessment of his status. In

light of PetitionerÓs represen tation, he was given until

June 20, 2014, to provide ECUA with medical clearance for work.

31 . During the predetermination hearing, Petitioner made

no additional request for a light - duty assignment, nor did he

ask for any form of accommodation other than the additional day

to provide letters from his doctor and physical therapist.

32 . On June 20, 2014, Petitioner provided ECUA with a

letter from his physical therapy provider. The lette r stated

that PetitionerÓs shoulder was improving and that the physical

therapist anticipated Petitioner could return to work as a UST

Ðf ollowing completion of his course of physical therapy.Ñ

However, the physical therapist further stated that a medical

release would ultimately be up to Dr. Turnage , and if there

remained doubts regarding PetitionerÓs readiness to return to

work, a Functional Capacity Evaluation could be administered to

identify his functional abilities. No specific dates were

provided fo r the completion of therapy or the release for duty.

33 . Upon receipt of the additional information, which

suggested that PetitionerÓs ability to return to work as a UST

II remained an unknown , ECUA d etermined that Petitioner still

could not perform the essential duties of his job, either with

or without accommodation. There were, at the time, no other

jobs in the Regional Services department that could be performed

by Petitioner, the only jobs not requiring strenuous activity

being those of Mr. Dawson and his two assistants, all of which

were filled. Thus, for a job in the Regional Services

department, there were no reasonable accommodations for one who

was unable to lift, carry, maneuver, and use heavy tools and

equipment. Based on the information av ailable at the time, the

decision was made to terminate PetitionerÓs employment with

ECUA.

34 . On June 23, 2014, ECUA notified Petitioner that his

employment with ECUA was terminated , and advised him of his

right to request a formal hearing to appeal the employment

action. The letter closed by stating that Ð[s]hould your

medical condition improve, you are welcome to apply for any open

position for which you are qualified and can perform the

essential functions.Ñ

3 5 . PetitionerÓs next appointment with D r. Turnage was

scheduled for July 8, 2014. The appointment was canceled, and

rescheduled for July 22, 2014 . On July 22, 2014, Petitioner was

released for work involving no overhead lifting of greater than

20 pounds, and with the restriction that he keeps his arms close

in to his body, i.e., no extending his arms.

36 . On August 13, 2014, Petitioner was discharged from

physical therapy, with the conclusion that Petitioner

Ð[a ] chieved the established therapy and RTW [return - to -

work]/Functional goals.Ñ T hat information was not provided to

ECUA.

37 . In September 2014, Petitioner applied to ECUA for the

position of lift - station mechanic assistant, a position that he

became aware of through an ECUA on - line job posting. Petitioner

did not meet the minimum qualifications for that position, and

was therefore not hired. Based thereon, it is apparent that

Petitioner was capable of accessing ECUA job opening

announcements.

38 . On October 23, 2014, Petitioner was released for duty

with no restrictions. That information was not provided to

ECUA.

39 . From October 2014 to Feb ruary 2015 , at least five UST

positions became available . Petitioner did not apply for any of

those openings.

40 . Between October 23, 2014 , and January 1, 2015 , ECUA

hired thirty to for ty sanitation truck drivers, positions for

which Petitioner was qualified. Petitioner did not apply for

any of those openings.

41 . Petitioner did not perceive himself as disabled, and

never complained to anyone at ECUA that he was disabled. He did

not assert a disability at his predetermination hearing.

42 . Petitioner did not report that he believed he was

being discriminated against, on the basis of his disability or

otherwise, to his supervisor, to Mr. Dawson, or to anyone in the

Human Resources de partment.

CONCLUSIONS OF LAW

43 . T he Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding . §§ 120.569 and 120.57(1), Fla. Stat . (2014).

44 . The Florida Civil Rights Act of 1992 ( ÐFCRAÑ) , c hapter

760, Florida Statutes, prohibits discrimination in the

workplace.

45. Section 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or othe rwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

46 . Petitioner is a Ð personÑ as defined in section

760.02(6 ). Having greater than 15 full - time employees, ECUA is

an ÐemployerÑ as defined in section 760.02(7).

47 . Section 760.11(1) provides that Ð[a]ny person

aggrieved by a violation of ss. 760.01 - 760.10 may file a

compla int with the [FCHR] within 365 days of the alleged

violation . Ñ Petitioner timely filed h is complaint.

48 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable

cause.Ñ Following the FCHR determinat ion of no cause,

Petitioner timely filed h is Petition for Relief requesting this

hearing.

49 . Petitioner has the burden of proving by a

preponderance of the evidence that the ECUA committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Un iv. , 60 So. 3d 455 (Fla. 3rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

50 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute 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. Fl a . Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

N . Am. , LLC , 18 So. 3d 1 7 (Fla. 3rd DCA 2009); Byrd v. BT Foods,

Inc. , 948 So. 2d 921, 925 (Fla. 4th DCA 2007); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

51 . In addition, Ð because FC RA is patterned after Title

VII and related federal statutes and regulations, courts

construe FCRA in conformity with Title VII and the Americans

with Disabilities Act (ADA). Ñ Byrd v. BT Foods, Inc. , 26 So. 3d

600, 605 (Fla. 4th DCA 2009); see also Wimber ly v. Sec. Tech.

Group, Inc. , 866 So. 2d 146 (Fla. 4th DCA 2004)(Ð Because Florida

courts construe the FCRA in conformity with the ADA, a

disability discrimination cause of action is analyzed under the

ADA. Ñ).

52 . Chapter 760, Part I, does not contain a definition of

Ðhandicap.Ñ However, its ADA counterpart provides the following

definitions applicable to whether Petitioner has a disab i lity :

(1) Disability

The term ÐdisabilityÑ means, with respect to

an individual Ï

(A) a physical or mental im pairment that

substantially limits one or more major life

activities of such individual;

* * *

(2) Major life activities

(A) In general

For purposes of paragraph (1), major life

activities include, but are not limited to,

caring for oneself, pe rforming manual tasks,

seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking,

breathing, learning, reading, concentrating,

thinking, communicating, and working.

42 U.S.C § 12102 .

53 . The ADA was amended in 2008 to broaden the range of

those covered by the ADA. Thus, 42 U.S.C § 12102 (4) provides

that Ð[t] he definition of disability in this chapter shall be

construed in favor of broad coverage of individuals under this

chapter, to the maximum extent permitted by the terms of th is

chapter .Ñ

54 . Given the limitations imposed on Petitioner as a

result of his injury, and the period of time that those

limitations were imposed , Petitioner ha d a handicap as that term

is used in c hapter 760, Part I, Florida Statutes.

55 . Chapter 76 0, Part I, does not contain an explicit

provision establishing an employer's duty to provide reasonable

accommodations for an employee's handicap, but by application of

the principles of the ADA, such a duty is reasonably implied.

Brand v. Fla. Power Corp . , 633 So. 2d at 511, n.12.

56. In applying the ADA, Florida courts recognize that:

The ADA provides that a "qualified

individual" is an individual with a

disability who, with or without reasonable

accommodation, can perform the essential

funct ions of the job. 42 U.S.C.A.

§ 12111(8). If a qualified individual with

a disability can perform the essential

functions of the job with reasonable

accommodation, then the employer is required

to provide the accommodation unless doing so

would constitute an undue h ardship for the

employer. 42 U.S.C.A. § 12112(b)(5)(A).

Reasonable accommodations to the employee

may include, but are not limited to,

additional unpaid leave, job restructuring,

a modified work schedule, or reassignment.

42 U.S.C.A. § 12111(9)(B) .

McC aw Cellular CommcÓns v. Kwiatek , 763 So. 2d 1063, 1065 - 1066

(Fla. 4th DCA 1999).

57 . Petitioner has not claimed that he was subject to

disparate treatment by ECUA on the basis of his handicap.

Rather, Petitioner claims that ECUAÓs alleged act of

discrim ination arose from its failure to provide reasonable

accommodation for his handicap.

58 . While discrimination based on disparate treatment

requires a showing of some discriminatory intent, disability

discrimination based upon a n employer's failure to p rovide an

employee with a reasonable accommodation does not. In that

regard:

Unlike other types of discrimination claims,

however, a Ðfailure to accommodateÑ claim

under the ADA does not require a showing of

discriminatory intent . . . . ÐRather, the

fai lure to provide reasonable accommodations

is a per se violation of the ADA, regardless

of intentions.Ñ . . . ÐIn other words, a

claim that an employer failed to . . .

provide reasonable accommodations to

qualified employees, does not involve a

determinati on of whether that employer

acted, or failed to act, with discriminatory

intent.Ñ . . . Such claims require only a

showing that the employer failed Ðto fulfill

its affirmative duty to Òmake reasonable

accommodation to the known physical or

mental limitati ons of an otherwise qualified

applicant or employee with a disability Ó

without demonstrating that Ò the

accommodation would impose an undue hardship

on the operation of the business. ÓÑ

Accordingly, . . . the McDonnell Douglas

burden - shifting framework, Ð whi le

appropriate for determining the existence of

disability discrimination in disparate

treatment cases, is not necessary or useful

in determining whether a defendant has

discriminated by failing to provide a

reasonable accommodation. Ñ (citations

omitted) .

Wright v. Hosp. Auth. o f Houston C nty . , 2009 U.S. Dist. LEXIS

7504 *18 - 19 (M.D. Ga. Feb. 2, 2009) ; accord Nadler v. Harvey ,

No. 06 - 12692, 2007 U.S. App. LEXIS 20272 *10 - 11 (11th Cir.

Aug . 24, 2007); Frazier - White v. Gee , No. 8:13 - cv - 1854 - T - 36TBM,

2015 U. S. Dist. LEXIS 48923 *18 (M.D. Fla. 2015) ; Jones v. G a .

DepÓt of Corr . , No. 1:07 - CV - 1228 - RLV, 2008 U.S. Dist. LEXIS

22142 *14 - 15 (N.D. Ga. Mar . 18, 2008).

59 . In order to demonstrate that he has been the subject

of workplace discrimination as a result of his handicap,

Petitioner must prove that he was Ð qualified Ñ to hold the

position that led to the alleged discrimination. The rules

adopted to implement the ADA provide that:

The term Ðqualified,Ñ with respect to an

individual with a disability, means tha t the

individual satisfies the requisite skill,

experience, education and other job - related

requirements of the employment position such

individual holds or desires and, with or

without reasonable accommodation, can

perform the essential functions of such

position.

29 C.F.R. § 1630 .2 (m).

60 . The ADA rules further provide that Ð[t] he term

essential functions means the fundamental job duties of the

employment position the individual with a disability holds or

desires. The term Ò essential functions Ó does n ot include the

marginal functions of the position. Ñ 29 C.F.R. § 1630( n ) .

61 . In order to prevail in his claim as a qualified

individual , Petitioner Ð must show either that he can perform the

essential functions of his job without accommodation, or,

faili ng that, show that he can perform the essential functions

of his job with a reasonable accommodation. Ñ Davis v. Fl a .

Power & Light Co. , 205 F.3d 1301, 1305 (11th Cir. 2000).

62 . It is well - recognized that:

The employee bears the burden of identifying

an accommodation that would allow [the

employee] to perform the essential functions

of [the employeeÓs] job . . . . Where the

employee fails to identify a reasonable

accommodation, the employer has no

affirmative duty to engage in an

"interactive process" o r to show undue

hardship . . . . We have likewise held that

"the duty to provide a reasonable

accommodation is not triggered unless a

specific demand for an accommodation has

been made. Ñ (citations omitted).

Spears v. Creel , No. 14 - 12261, 2015 U.S. App. LEXIS 6095 *12

(11th Cir. 2015) .

63 . In this case, the only accommodations specifically

requested by Petitioner were that he be placed in a position as

a meter repair technician or as a Ðcut - non - payÑ service

technician. However, there were no openings for either

position. An employer is not required to creat e a new position ,

or transfer another employee from a position , as a reasonable

accommodation for a disabled employee . See Davis v. Fla. Power

& Light Co. , 205 F.3d at 1305. Furthermore, the ADA

does not require an employer to accommodate

an employee in the manner she desires, so

long as the accommodation it provides is

reasonable. . . . An employer also is Ð not

required to transform the position into

another one by eliminating functions that

are essential to the nature of the job as it

exists. Ñ (citations omitted).

Rabb v. Sch. Bd. of Orange C nty. , 590 Fed. Appx. 849 , 851 (11th

Cir. 2014).

6 4 . D espite considerable argument that ECUA should have

offered to hold PetitionerÓs job open for an extended period,

that request was not specifically made at the predetermination

hearing or at any other time prior to PetitionerÓs termination.

The only request for additional time was that made by Petitioner

for one day from the date of the predeterminat ion hearing to

obtain a letter of clearance from his physician and/or his

physical therapist. That request was granted, but the letter

provided fell far short of demonstrating that Petitioner was

ready to resume work. However, even if a request for exten ded

leave had been made, under the facts of this case, PetitionerÓs

termination would not have constituted a violation of the ADA,

and thus the FCRA.

65 . As of the date of PetitionerÓs termination, neither

PetitionerÓs physical therapist nor his physicia n could provide

a date on which Petitioner would be released for duty without

restriction. Rather, the best that could be said was that

Petitioner would be able to work Ðfollowing completion of his

course of physical therapyÑ -- for which no date was prov ided --

but that a medical releas e would ultimately be up to

Dr. Turnage . With regard to a request for an indefinite leave

of absence to provide a period of recovery from a debilitating

condition, it is established that:

While a leave of absence may be a reasonable

accommodation, the ADA does not require an

employer to provide leave for an indefinite

period of time because an employee is

uncertain about the duration of his

condition . (citations omitted) .

Santandreu v. Miami - Dade Cnty . , 513 Fed. Appx. 902 , 905 (11th

Cir. 2013).

66 . It was a necessary element of PetitionerÓs job that he

be capable of performing the strenuous physical activities

required of a UST II, including lifting and carrying heavy

equipment, digging, reaching to grasp heavy obj ects, pulling

manhole covers, and turning tight and ÐfrozenÑ valves. At the

time the decision was made to terminate PetitionerÓs employment,

Petitioner could not perform the essential functions of his job

without accommodation, and could not perform the e ssential

functions of his job with a reasonable accommodation other than

assigning him marginal duties of a UST II, assigning him duties

for other positions for which there were no openings, or holding

his position open for an indeterminate period of time.

67 . ECUA h eld PetitionerÓs position open well after his

FMLA leave expired. However, by June 20, 2014, Petitioner was

unable to provide ECUA with any definitive date on which he

would be cleared for work. As it turned out, Petitioner was not

cleared to return to work until October 23, 2014.

68 . The facts in this case are similar to those considered

by the Fourth District Court of Appeal in Tourville v. Securex,

Inc. , 769 So. 2d 491 (Fla. 4th DCA 2000). In that case, the

Court affirmed the lowe r courtÓs final summary judgment

upholding the employerÓs termination of an injured employee,

holding that:

Assuming that Donald Tourville was

discharged from his job on February 20,

1993, the evidence was that he was totally

disabled at that time and una ble to work for

an indefinite period. Although Tourville

was cleared to return to work in April,

1993, he never sought reemployment with

appellee.

If appellee terminated Tourville's

employment, such a discharge of Tourville

was not unlawful under section 760.10(8)(a),

Florida Statutes (1993), since his

hospitalization and illness prevented him

from performing the physical requirements of

his job as an on - site security guard, even

with reasonable accommodation.

Tourville v. Securex, Inc. , 769 So. 2d at 49 2.

69 . Since Petitioner could not perform the essential

functions of the position of a UST II, and could provide no

definitive date on which he would be able to do so, Petitioner

was not a Ðqualified individualÑ on June 23, 2014, the date on

which ECUA t erminated his employment.

70 . Petitioner did not prove by a preponderance of the

evidence that ECUA discriminated against h im by failing to

provide reasonable accommodation for h is disability in violation

of the Florida Civil Rights Act, section 760.10 , Florida

Statutes .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Emerald

Coast Utilities Authority , did not co mmit an unlawful employment

practice in its actions t owards Petitioner, Roderick Billups ,

and dismissing the Petition for Relief filed in FCHR No. 2014 -

01582 .

DONE AND ENT ERED this 19th day of June , 201 5 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 Cle rk of the

Division of Administrative Hearings

this 19th day of June , 201 5 .

COPIES FURNISHED :

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Bradley S. Odom, Esquire

Odom and Barlow , P.A.

1800 North E Street

Pensacola, Florida 32501

(eServed)

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 O rder should be filed with the agency that

will issue the Final Order in this case.