Davidson v. Iona-McGregor Fire Protection and Rescue Dist.

• Decision Date: 24 May 1996
• Docket Number: No. 95-01473,IONA-M,95-01473
• Parties: 21 Fla. L. Weekly D1243, 8 NDLR P 114 Donald Scott DAVIDSON, Appellant, v.cGREGOR FIRE PROTECTION AND RESCUE DISTRICT, Appellee.
• Court: Florida District Court of Appeals

Page 858

674 So.2d 858

21 Fla. L. Weekly D1243, 8 NDLR P 114

Donald Scott DAVIDSON, Appellant, v. IONA-McGREGOR FIRE PROTECTION AND RESCUE DISTRICT, Appellee.

No. 95-01473.

District Court of Appeal of Florida,

Second District.

May 24, 1996.

Robert E. Tardif, Jr. of Duncan & Tardif, P.A., Fort Myers, for Appellant.

Garry W. Miracle and Joseph F. Bohren, II of Law Offices of J.A. Setchel, Tampa, for Appellee.

RYDER, Acting Chief Judge.

Donald Davidson filed a complaint against his former employer, Iona-McGregor Fire Protection and Rescue District, alleging that it had violated section 760.10(1)(a), Florida Statutes (1991), by discriminating against him based on a perceived handicap. On Iona-McGregor's motion, the lower court dismissed the complaint with prejudice. Davidson now seeks review of that dismissal. We reverse, and remand to the trial court to reinstate his suit.

On a motion to dismiss for failure to state a cause of action, a trial court is confined to the four corners of the complaint. The material allegations of the complaint must be taken as true. Cook v. Sheriff of Collier County, 573 So.2d 406, 408 (Fla. 2d DCA 1991). We will, therefore, set out the pertinent parts of Davidson's amended complaint.

The complaint alleged that when Iona-McGregor hired Davidson as a firefighter, he was required to meet a standard list of conditions. Iona-McGregor added an addendum to these conditions, which stated:

Applicant agrees as a condition of employment, that during his six month probationary period, he will have lost sufficient weight to go from a size 40 waist to a size 36 maximum. Sizes are as measured by Asst. Chief Juntikka.

Davidson asserted that the addendum was added because Iona-McGregor perceived that he was obese. He claimed he lost sufficient weight during his probationary period to satisfy the condition in the addendum. Approximately fifteen months after he was hired, Iona-McGregor's assistant chief requested that he sign a new agreement to lose weight and to maintain a thirty-six-inch waist size throughout his employment. On at least two occasions, Davidson refused to sign the agreement. Iona-McGregor, however, demanded he reach that waist size, or face termination. Davidson's amended complaint stated that he met all the state's requirements to be employed as a firefighter, and all of Iona-McGregor's requirements, other than his waist size. Iona-McGregor terminated him for failing to maintain a thirty-six-inch waist.

Davidson alleged that Iona-McGregor's demand that he reach a certain waist size was based on its perception that he was obese. He asserted that obesity is a handicap under the Florida Human Rights Act of 1977 (the "Act"), and that his termination violated section 760.10(1)(a), Florida Statutes (1991).

The contentions in Iona-McGregor's motion to dismiss relevant to this appeal were that Davidson failed to state a cause of action because obesity is not a handicap covered by the Act, that the employment-at-will doctrine precluded his cause of action and that Davidson had failed to exhaust his administrative remedies. After a hearing, the lower court dismissed the complaint, finding that Davidson had signed a written employment agreement, which he incorporated into his complaint, and had failed to abide by its terms. The order stated he had pleaded no other legally sufficient basis for relief.

In his first issue on appeal, Davidson challenges the court's findings concerning his employment contract. He notes that his complaint asserted that he satisfied the addendum to the contract. On appeal, Iona-McGregor argues that the addendum covered not only the six-month probation period, but was intended to apply to the entire term of Davidson's employment. We do not know whether this argument was presented to the trial court because we do not have a transcript of the hearing. The court's conclusion that Davidson failed to abide by the terms and conditions of his employment agreement is, however, a finding of fact not based on the four corners of the complaint. See Cook, 573 So.2d at 408. A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine fact issues. Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994). The dismissal cannot be sustained on the basis stated in the order.

Iona-McGregor, however, contends that we must affirm the lower court's decision if we can find any valid reason to support it. DSA Group, Inc. v. Gonzalez, 555 So.2d 1234, 1235 (Fla. 2d DCA 1989). It then argues that the complaint failed to state a justiciable claim because obese persons are not handicapped under Florida law. This brings us to Davidson's second issue on appeal, that the court erred in dismissing his claim because he had properly stated a cause of action for unlawful discrimination.

The Act prohibits an employer from discharging an employee or discriminating against him with respect to the terms of employment based on a handicap, unless the absence of the handicapping condition is necessary based on a bona fide occupational qualification. § 760.10(1), (8), Fla.Stat. (1991). To plead a prima facie case of discrimination, Davidson was required to allege that he was a handicapped person under the law, he was qualified for the position apart from the handicap, and he was denied employment solely because of the handicap. Brand v. Florida Power Corp., 633 So.2d 504, 510 (Fla. 1st DCA 1994). Davidson's amended complaint claimed that he met all the requirements for a certified firefighter and was capable of performing the duties. He went on to assert that Iona-McGregor discharged him because it perceived he was obese, and that the perceived obesity is a protected handicap under the statute. The Brand court adopted the definition of a handicap...