Brand v. Florida Power Corp.

• Citation: 633 So.2d 504
• Decision Date: 07 March 1994
• Docket Number: No. 92-779,92-779
• Parties: 19 Fla. L. Weekly D525, 3 A.D. Cases 102, 4 NDLR P 445 James A. BRAND, Appellant, v. FLORIDA POWER CORPORATION, Appellee.
• Court: Court of Appeal of Florida (US)

Page 504

633 So.2d 504

19 Fla. L. Weekly D525, 3 A.D. Cases 102,

4 NDLR P 445

James A. BRAND, Appellant, v. FLORIDA POWER CORPORATION, Appellee.

No. 92-779.

District Court of Appeal of Florida,

First District.

March 7, 1994.

John Barry Kelly II of Ray, Kievit & Kelly, Pensacola, for appellant.

J. Lewis Sapp of Elarbee, Thompson & Trapnell, Atlanta, GA, Charles Reischmann, Florida Power Corp., St. Petersburg, for appellee.

ERVIN, Judge.

James A. Brand appeals from a final order of the Florida Commission on Human Relations dismissing his complaint against appellee, Florida Power Corporation, in which he alleged employment discrimination based on handicap. Although Brand raises eight issues, we deem the critical question before us is whether the Commission erred in determining that Brand failed to satisfy his ultimate burden of persuasion proving handicap discrimination. Because we conclude that there is competent, substantial evidence supporting the Commission's order, we affirm.

This case was initiated on October 3, 1989, when Brand filed a charge of discrimination under Florida's Human Rights Act of 1977 ¹ against Florida Power, alleging that Florida Power would not reemploy him as a certified welder mechanic because of his physical handicap (asbestosis), even though he was then fully qualified and able to perform the job. ² Following an investigation, the Commission issued a "no cause" determination. Brand petitioned for relief, and the matter proceeded to hearing, resulting in an order by a hearing officer recommending that the Commission enter a final order dismissing Brand's complaint. The hearing officer concluded that although Brand had established a prima facie case of unlawful employment discrimination based on handicap, Florida Power substantiated a legitimate, nondiscriminatory reason for its actions, which rebutted the inference of discrimination, and that Brand failed to show that Florida Power's reason was a pretext for discrimination. The Commission adopted the recommended order and issued a final order dismissing Brand's complaint with prejudice.

In reaching their determinations that Florida Power did not unlawfully discriminate against Brand, both the hearing officer and the Commission relied upon the United States Supreme Court's analysis applied in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (McDonnell Douglas-Burdine ). This analysis, used generally to test discrimination claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Secs. 2000e-2000e-17), operates in the following fashion: First, the plaintiff has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If the plaintiff succeeds, a presumption of discrimination arises and the burden shifts to the defendant-employer to produce evidence articulating a legitimate, nondiscriminatory reason for its action. The burden of producing evidence is next placed on the plaintiff to demonstrate that the defendant's proffered reason was not the true reason for the employment decision, but was in fact a pretext for discrimination. Whether or not the defendant satisfies its burden of production showing legitimate, nondiscriminatory reasons for the action taken is immaterial insofar as the ultimate burden of persuasion is concerned, which remains with the plaintiff. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410-11 (1983).

The Commission's application of the McDonnell Douglas-Burdine test was in accord with Florida case law interpreting Florida's Human Rights Act, which, as this court has observed, is patterned after Title VII. See Florida Dep't of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991); School Bd. of Leon County v. Hargis, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981). In the federal sector, however, a Title VII analysis is not altogether applicable to a discrimination claim based on handicap. Moreover, no state court has as yet decided whether the test applies to a claim asserting handicap discrimination under Florida's Human Rights Act.

The remainder of this opinion is divided into three parts: in the first we discuss why the McDonnell Douglas-Burdine criteria are inapplicable to an employment handicap discrimination case in which the employer admits, as here, that it rejected the employee or applicant solely because of his or her handicap; in the second portion we adopt the federal rule recognizing that if the rejection is so based, the preferred criteria to be applied are those of section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Secs. 701-796i); the third portion is divided into two subparts, the first involving the application of section 504's criteria to the case at bar; and the second, the application of the competent, substantial evidence standard of review to the facts.

I.

No reference is made in 42 U.S.C. Sec. 2000e-2 to any proscribed employment discrimination on account of a person's handicap. ³ Instead, federal handicap discrimination claims have generally been prosecuted pursuant to either section 501 or 504 of Title V of the Rehabilitation Act of 1973 (29 U.S.C. Secs. 791, 794). The latter statute provides:

No otherwise qualified individual with handicaps ⁴ in the United States, as defined in section 7(8) [29 U.S.C.S. Sec. 706(8) ], shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C.S. Sec. 794(a) (Law.Co-op.1990). Section 501 places a similar duty upon each department, agency, and instrumentality in the federal executive branch to refrain from handicap discrimination and mandates such employers to prepare affirmative action plans for the hiring, placement, and advancement of individuals with handicaps. 29 U.S.C. Sec. 791(b).

Because there are different substantive factors that must be taken into account under the Rehabilitation Act, federal courts have stated that sections 501 and 504 establish their own criteria; hence, the analysis applicable to Title VII claims may not necessarily be relevant to actions based on handicap. See, e.g., Barth v. Gelb, 2 F.3d 1180, 1183-87 (D.C.Cir.1993), petition for cert. filed, 62 U.S.L.W. 3454 (U.S. Dec. 27, 1993) (No. 93-1023); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1384-85 (10th Cir.1981). Consequently, the federal courts frequently modify the McDonnell Douglas-Burdine test in handicap discrimination cases, particularly in situations wherein the employer admits that the plaintiff's handicap was the sole reason for rejection. See Barth, 2 F.3d at 1187 (trial court erred in invoking Burdine three-step test once employer admitted it had denied job application on account of plaintiff's handicap). ⁵

As observed in Pushkin, handicap discrimination cases are unique in that handicapped persons are invariably denied employment solely as a result of their handicaps; whereas in Title VII cases a characteristic such as race or sex is rarely admitted as motivating the employer's decision. Consequently, it is ordinarily unnecessary for a plaintiff to show the existence of a hostile, discriminatory purpose, or that the employer's given reasons were a pretext for an impermissible motive. "Discrimination on the basis of handicap usually results from more invidious causative elements and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of handicapped persons." Pushkin, 658 F.2d at 1385. As observed in Anderson v. University of Wisconsin, 841 F.2d 737, 741 (7th Cir.1988) (citation omitted): "Just as Title VII of the Civil Rights Act of 1964 ensures only equal treatment and not 'correct' decisions, so the Rehabilitation Act requires only a stereotype-free assessment of the person's abilities and prospects rather than a correct decision." In other words, the Rehabilitation Act was structured for the purpose of replacing "reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments[.]" School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284-85, 107 S.Ct. 1123, 1129, 94 L.Ed.2d 307, 319 (1987). Accordingly, good faith or a lack of discriminatory intent is not necessarily an appropriate consideration in actions brought under section 504. See Alexander v. Choate, 469 U.S. 287, 294-301, 105 S.Ct. 712, 716-20, 83 L.Ed.2d 661, 667-72 (1985); Norcross v. Sneed, 755 F.2d 113, 117 n. 4 (8th Cir.1985).

Thus, the ultimate test to be satisfied in a handicap discrimination claim brought under either section 501 or 504 is not whether the employer's rejection of an employee stemmed from a discriminatory purpose, but whether the handicapped person who meets all the employment criteria except for the challenged discriminatory criterion "can perform the essential functions of the position in question without endangering the health and safety of the individual or others." 29 C.F.R. Sec. 1613.702(f) (1993). ⁶ As observed in Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir.1991): "[U]nder section 504, an individual is not qualified for a job if there is a genuine substantial risk that he or she could be injured or could injure others, and the employer cannot modify the job to eliminate that risk."

II.

In the case at bar, because Florida Power rejected Mr. Brand's employment application for no reason other than his handicap and defended its action on the primary...