Judges: LINDA M. RIGOT
Agency: Commissions
Latest Update: Jul. 09, 1987
Summary: Absolutely no merit to charge of discrimination; HRS did everything possible to accommodate and please ill-tempered, non-productive employee
86-1039.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY LASSOR, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1039
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 23 - 25, 1987 in Pinellas Park, Florida. The parties completed their post-hearing submissions on June 10, 1987.
Petitioner, Beverly Lassor, appeared on her own behalf, and Respondent, Department of Health and Rehabilitative Services, was represented by Barbara Ann Dell McPherson, Attorney at Law, Clearwater, Florida.
Petitioner filed a complaint with the Florida commission on Human Relations alleging that her employer, the Department of Health and Rehabilitative Services, had discriminated against her on the basis of her handicap and had retaliated against her. After an investigation, a determination was made that there was no reasonable cause to believe that Respondent had discriminated against Petitioner. Thereafter, Petitioner filed a request for redetermination and was again advised that there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner then filed a Petition for Relief from an Unlawful Employment Practice, and that Petition was transmitted to the Division of Administrative Hearings for a formal hearing thereon.
Accordingly, the issue for determination herein is whether Respondent has committed an unlawful employment practice against Petitioner by discriminating against her based on her handicap and/or by retaliating against her.
Petitioner testified on her own behalf and presented the testimony of Christalee Costello, Joan Christiansen, Frances Whittle, Rita Bott, Curtis Diggs, Edith Hoppe, Mary Brennen, Rosalyn McEachern, Dollie M. Henson, Dr. Thomas A. Latus, John Cunningham, Sandra Soares, Viola Cunningham, Martin Ademy, Georgia Gaston, Harry Harvey, Timothy Myers, and Margaret F. Edmonds.
Respondent presented the testimony of Lani Deauville, Theresa Ruppel, Susan Gilbert, Karen Raym Girard, Lawrence R. Raym, Susan McPhee, Thomas H. Wester, Julia J. Christian, Nancy Fleming, and Lynn Picolo.
Neither party offered any exhibits. Although Petitioner attached to her proposed recommended order a number of documents, those documents were never offered in evidence and are, accordingly, hereby stricken.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. All of Respondent's proposed findings of fact have been adopted in this Recommended Order either verbatim or in substance.
All of Petitioner's proposed findings of fact have been rejected as follows: 1, 7, and 8 as being unnecessary for determination in this cause; and 2 - 6 and 9 -
15 as being contrary to the evidence in this cause.
FINDINGS OF FACT
Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair.
During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers.
She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel.
Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker.
When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker.
Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work.
After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet.
Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again.
The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters.
Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984.
Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor.
The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem.
Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor.
Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater.
Both Gilbert and Petitioner agreed to try to resolve any problems on their own.
As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship.
There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983.
On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation
equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner.
Option 4 was the option chosen by Petitioner at the December 12 meeting.
2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984.
Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4.
Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do.
When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance.
Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required.
While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control.
The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard.
From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave.
The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner.
The internal grievance committee found:
that an irreconcilable personality conflict existed between Gilbert and Petitioner;
that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship;
that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance)
that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner;
that those efforts were not successful and the situation deteriorated rather than improved;
that four options or solutions were discussed with Petitioner;
that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option;
that subsequently she experienced a feeling of segregation and decided that the option was not
in her best interest;
that due to her physical location and supervision, she was segregated from her unit;
that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management;
that she had been afforded special accommodations due to her handicap not normally given employees;
that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship.
On February 9, 1984, the internal grievance committee recommended that:
Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs.
Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons:
Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of
which she was a member.
The personality conflict between Gilbert and Petitioner could not be solved.
The situation was detrimental to Petitioner's emotional and physical well being.
By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she
would not be singled out as being moved because of a problem.
Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center.
The Wildwood facility could easily be made accessible for her and a room could be
adapted to her needs.
Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame.
In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her.
On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg.
The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems.
When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym.
Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month.
Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger.
Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between
10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties.
Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred.
Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way.
HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation.
Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The parties have stipulated that cerebral palsy is a handicap and that, accordingly, Petitioner is entitled to the protection afforded to handicapped individuals by the Human Rights Act of 1977, as amended. Sections
760.01 - 760.10, Florida Statutes. Pursuant to section 760.10, it is an unlawful employment practice for an employer to discriminate or retaliate against an employee with respect to terms and conditions of employment because of that employee's handicap; however, it is not an unlawful employment practice for an employer to take action based upon handicap where the absence of handicap is a bona fide occupational qualification reasonably necessary for the performance of that employment. An employer is also required to make reasonable accommodation to handicapped employees in order that they can fulfill the duties of their employment. It is clear that Respondent has made reasonable accommodation to Petitioner regarding the terms and conditions of her
employment. Further, the evidence is clear that Respondent's actions toward Petitioner have taken into account her impaired communication skills and motor skills. Removing Petitioner from "on-call" duties does not constitute discrimination or retaliation under the circumstances present in this cause.
Respondent's attempts to transfer Petitioner and to reassign Petitioner to a supervisor to whom she would choose to respond positively cannot be considered an act of discrimination or retaliation on the part of Respondent. It is unlikely that Respondent affords to other employees the amount of effort it has expended attempting to find a supervisor whom Petitioner accepted.
In short, Petitioner has failed to present evidence of any act or conduct on the part of Respondent which has been discriminatory or retaliatory toward her. Accordingly, Petitioner has failed to prove that Respondent has committed an unlawful employment practice.
RECOMMENDATION
Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore
RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice.
DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987.
COPIES FURNISHED:
Beverly L. Lassor
6333 81st Avenue North Pinellas Park, Florida 34665
Barbara Ann Dell McPherson, Esquire Department of Health and
Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546
Donald A. Griffin, Executive Director Florida Commission on Human
Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird, General Counsel Florida Commission on Human
Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Docket for Case No: 86-001039
Orders for Case No: 86-001039
| Issue Date |
Document |
Summary |
|
Jul. 09, 1987 |
Recommended Order
|
Absolutely no merit to charge of discrimination; HRS did everything possible to accommodate and please ill-tempered, non-productive employee
|
