Solomon v. Department of Transp., 88-1109
| Citation | 541 So.2d 691,14 Fla. L. Weekly 741 |
| Decision Date | 23 March 1989 |
| Docket Number | No. 88-1109,88-1109 |
| Parties | 49 Fair Empl.Prac.Cas. (BNA) 1890, 14 Fla. L. Weekly 741 David SOLOMON, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. |
| Court | Court of Appeal of Florida (US) |
Peter S. Schwedock, of Pelzner, Schwedock, Finkelstein & Klausner, Miami, for appellant.
Gergory G. Costas, Thomas H. Bateman, III, Gen. Counsel, Dept. of Transp., for appellee.
Appellant seeks review of a March 18, 1988 Public Employees Relations Commission (PERC) order by which the Commission concluded that it had no statutory authority to mitigate appellant's dismissal from employment by directing the agency to employ him in another capacity for which he would not be disabled. We affirm.
Appellant was employed by the Department of Transportation as a toll collector for 12 years until August 19, 1987. During the last few years of his employment appellant complained to his supervisors of problems with allergies and unsuccessfully requested a transfer to a position other than toll collector. On January 24, 1986 appellant filed a worker's compensation claim. In an August 5, 1986 final order the deputy commissioner characterized appellant's claim as alleging:
That the exposure to exhaust fumes from motor vehicles passing by his toll booth either caused him to have an allergic reaction necessitating medical treatment for breathing problems and other associated difficulties, or that his preexisting condition, which was not symptomatic, was made symptomatic by this continued exposure to chemical irritants.
The deputy commissioner awarded temporary total disability benefits commencing July 26, 1985. Benefits continued until November 18, 1986 when appellant returned to work with his employer. The record does not indicate whether or not appellant had a pending claim for permanent disability benefits. In a February 9, 1987 letter appellant's doctor wrote to a carrier adjustor stating that appellant would not be able to return to his job as a toll collector under any circumstances due to his medical condition. On September 18, 1987 a DOT deputy assistant secretary terminated appellant from his position as toll collector for physical inability to perform his job.
Appellant appealed the termination from employment. A hearing was held December 3, 1987 to determine whether the agency's dismissal of appellant was justified by his alleged inability to perform his job, whether appellant's dismissal violates laws and administrative rules prohibiting handicapped discrimination, and whether appellant is entitled to a transfer to another position which he can physically perform. Following the hearing, the hearing officer entered a recommended order finding that medical reports indicated appellant was unable to continue working as a toll collector. Appellant argued that his years of service with the agency, and the availability of other jobs within the agency, should have resulted in his placement in another job rather than his dismissal. The agency responded that it attempted to find another position for appellant but could not, and that in any event it did not have a legal duty to reassign appellant to another position.
The hearing officer concluded that the agency had cause to dismiss appellant for inability to perform his job as toll collector, and that PERC lacks statutory authority to mitigate a dismissal for inability to work. As to appellant's contention that the agency violated state policy prohibiting employment discrimination against handicapped citizens, the hearing officer found that PERC does not have authority to directly enforce federal law, since section 760.10, Florida Statutes, prohibits dismissal of an employee because of handicap and enforcement of that law is with the Florida Commission on Human Relations (FCHR). While FCHR may refer such cases to PERC, FCHR had not done so in this case. The hearing officer concluded that mitigation of the dismissal was not possible. However, Chapter 86-163, Laws of Florida, created section 447.208(3)(c), Florida Statutes, and transferred jurisdiction for state career service appeals to PERC. The hearing officer noted a lack of precedent as to whether the statute now authorizes PERC to mitigate a dismissal for inability to perform a particular job. He applied the four mitigation criteria codified in section 447.208(3) and recommended that, if mitigation is ever appropriate for a case such as this, appellant's dismissal be mitigated to an indefinite suspension without...
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