STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANCE FIEDOROWICZ, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2681

) MID FLORIDA COMMUNITY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 2, 1992, in Brooksville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Constance Fiedorowicz, pro se

460 Hale Avenue Apartment #20

Brooksville, Florida 34601

For Respondent: Ivory J. Gray

As Qualified Representative For:

Mid Florida Community Services, Inc. Post Office Box 896

Brooksville, Florida 34605-0896 STATEMENT OF THE ISSUE

Whether or not Respondent committed an unlawful employment practice (discrimination due to handicap) against Petitioner within the meaning of Section 760.10, F.S.

PRELIMINARY STATEMENT

Respondent's proposed qualified representative, Ivory J. Gray, was examined on the record and accepted as a qualified representative, pursuant to Rules 60Q- 2.007 through 60Q-2.009, F.A.C., [formerly 22I-6.007-22I-6.009 F.A.C.] subject to an after-filed corporate authorization. That authorization was filed, and she is accepted.

Petitioner presented the oral testimony of Linda B. Blevins, Joe Fiedorowicz, and Vickie L. Griffis and testified on her own behalf. She had twelve exhibits admitted in evidence.

Respondent presented the oral testimony of Margaret Clark, Pinkie Bostic, Marie Gaskin, Viennessee Black, Tracey Ramsey, Martha Lawson, and Ivory J. Gray.

Respondent had three exhibits admitted in evidence. Exhibit R-4, an out of court statement by Ms. Bostic, who had already testified, was not admitted.

Elaborate provisions for the parties to pay for and file a transcript, for Respondent to file its corporate authorization of qualified representative, and for the filing of proposed recommended orders were made on the record at formal hearing. Subsequent orders modifying those oral provisions also appear of record herein. Eventually, the parties waived the opportunity to file a transcript. Each party has, however, filed proposed recommended orders, the findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Petitioner is a white female born April 23, 1933. She began work as a cook for Respondent in 1982, eventually working her way up to head cook.

   
   

2. Respondent is Mid-Florida Child Care Division, a child care facility located in Brooksville, Florida, which is part of Hernando-Sumter Head Start. Either or both entities employs in excess of fifteen full-time employees.

   
   

3. Petitioner went into the hospital in 1989 and had a craniotomy. A cerebral aneurysm was "clipped" with resultant subarachnoid hemorrhage. In other words, her initial situation was complicated by a cerebral vascular accident (CVA or stroke) which resulted in hemiparesis on the right side and some speech impairment. Thereafter, she was off work for a period of time.

   
   

4. At all times relevant to these proceedings, Petitioner continued to have mild problems with fine motor control of the right upper extremity, found it difficult to locate and use the correct word when she was under stress, and was unable to write or do arithmetic. She is "aphasic," which, among other definitions, refers to an individual who retains full intelligence but who has difficulty with deliverance of that intelligence at times.

   
   

5. On August 11, 1989, James R. Cummings, M.D., a general practitioner, released Petitioner to return to work with no mention of any residual impairment in her ability to work.

   
   

6. Dr. Joseph C. Williams, M.D., Petitioner's treating neurologist, wrote that Petitioner "can return back to work without restrictions as of 8/15/89."

   
   

7. Due to the length of time Petitioner has been off work, Respondent did not hire Petitioner back as head cook but as an undercook. In her absence, another woman had replaced her as head cook, and Petitioner started anew as a probationer in the lower position. There is no clear evidence as to how long her probation was to last or lasted.

   
   

8. On August 11, 1989, Dr. Cummings performed a complete examination of Petitioner on behalf of Respondent and by a September 12, 1989 form, informed Respondent that he and Dr. Williams concurred that Petitioner could return to work but "continues to have mild problems with fine motor control of R [right] upper extremity, some difficulty with word finding at times."

   
   

9. By communication of October 16, 1989, Dr. Williams stated, in pertinent part, that:

   She [Petitioner] was released back to full work duties. This does not mean that the patient, at this time, is able to tolerate a full working day. It is my opinion that the patient's activities are unrestricted at work but I do feel, based on her current examination, as well as history, that she, at this point at least, is ready only for working one half day.

   
   

10. Because Petitioner could not write and had trouble working a full day, Respondent permitted her to work only a four- hour day as an undercook.

    
    

11. At some point after her return to work, Petitioner missed 3-5 consecutive days of work one time due to her mother's death and another time due to a second stroke/seizure. It is not clear whether she missed work of several eight-hour days or several four-hour days on those two occasions.

    
    

12. Several employee witnesses expressed the belief that Petitioner missed several days of work on other occasions, but some of these witnesses seemed to think she was always working eight-hour days. Petitioner denied such absences or did not remember them. No contemporaneous absentee records maintained by the employer were introduced into evidence. She was not cited for absenteeism and the absences seem to have been of more concern to co-employees than to supervisors. For those reasons and because it is not clear whether Petitioner was working four or eight hours on those occasions, it is not possible to accurately determine how many hours of absences she had. Upon the foregoing evidence, it is found that Petitioner's absenteeism was not chronic and was not a source of constant concern to the Respondent's employer.

    
    

13. On February 9, 1990, Dr. Williams notified Respondent that Petitioner

    was:

    
    

    ". . . doing extremely well after suffering a neurologic problem. At this point, I believe that the patient can return to her full duties working full time without restrictions."

    
    

14. On March 8, 1990, Dr. Cummings wrote the Assistant Director of Mid-

    Florida Child Care Division, Head Start, in response to a letter inquiry of hers which is not in evidence, and stated, in pertinent part as follows:

    
    

    In regard to the two page job description given to me for dietary aide grade I, September 19, 1988: The patient should be able to perform all of the activities which are listed, one through twenty-one on the first page and one through thirteen on the second page. As you know Dr. Williams has given the patient a complete release to return to work, with some understanding of the basic duties of her job. From all indications from notes from Dr. Williams as well as from the speech therapist, Peggy Cockin, and from my own evaluation and questioning of the patient, she should be able to perform the above duties without major difficulty. She does

    occasionally have some mild difficulty with word finding and her speech is somewhat staggered, but totally appropriate and understandable. The patient gives indications to me that she has been able to perform her functions without major difficulties; that on occasion it has been difficult, but work is hard at times for anyone.

    
    

    Unless someone can give evidence that the patient is not functioning properly in her work setting, I see no reason that she shouldn't continue in her current occupation, based on my understanding of her current capabilities.

    
    

15. On March 14, 1990, Dr. Williams advised Respondent's Assistant Director, Viennessee Black, in pertinent part, as follows:

    
    

    Constance Fiedorowicz is a patient under my care. She, at this time, is showing a very good recovery from her neurologic event.

    
    

    At this time I feel that Constance can perform all of the duties that you have listed. The only stipulation I would have is that the patient seems to have some difficulty with expressing herself, particularly if she becomes nervous, as well as, in writing.

    
    

    Otherwise, her mental faculties seem to be intact and at this point, at least based on my examinations in the office, I feel that she probably would be able to perform the other tasks that are outlined.

    
    

    The only way of knowing for sure would be to have the patient attempt to do the tasks and evaluate her performance of these.

    
    

16. Petitioner testified that she was assigned the job of transporting food to the "Bypass School," a location different from her usual cooking location and that job was taken away from her upon the grounds that she allegedly had a weak leg and could not use the car brake quickly and accurately. She denied that she had any problem with a car brake. No other witness indicated any direct knowledge of why Petitioner was removed from this task, although many had "heard" she could not use the car brake pedal. In any case, she was reassigned to work in one location which apparently corresponded with her pre-handicap duties.

    
    

17. On one occasion, while performing her kitchen tasks, Petitioner broke a cup and cut her hand. Her hand bled, but she did not know it until she saw the blood. The same was true of some nicks she made with a knife on her thumb. These incidents caused great concern to her coworkers, but not to Petitioner. The employer made no contemporaneous record of these incidents.

18. A record was made of an incident on March 26, 1990 which occurred when Petitioner either put a dutch oven in a sink of hot water or bumped her left arm, the side unaffected by the stroke. This incident resulted in a "knot in a vein" swollen under the skin on Petitioner's left hand or forearm. The injury responded to elevation and subsided within five minutes. Petitioner continued to work. Only a bruise remained when Petitioner left early for speech therapy that same day. The employer required that some workers' compensation forms be filled out due to the March 26, 1990 incident, but none were offered in evidence. There is no evidence that Respondent had to pay workers' compensation or medical benefits to Petitioner as a result of this incident.

    
    

19. One time, Petitioner forgot and left a knife in the freezer and another time she left a knife in among the canned goods. There was some unfocused concern by the new head cook and co-employees about sanitation on these occasions, but the employer offered no evidence to show how a knife, among intact cans of food or solidly frozen goods, could cause an unsanitary condition.

    
    

20. Petitioner made some errors in counting lunches. The United States Department of Agriculture (U.S.D.A.) reimburses Respondent per child per meal. Petitioner's errors in counting sandwiches resulted in the Respondent not being reimbursed by the U.S.D.A. for two units at the end of one month. This was a rather serious financial loss in the opinion of the new head cook, but the actual monetary cost was never explained nor was it explained in relation to the number of children or meals the Respondent services; therefore, there is insufficient evidence upon which to find Respondent's counting error caused a substantial monetary loss to Respondent.

    
    

21. The biggest functional problem that Respondent was able to demonstrate was that Petitioner sometimes ran dish water too hot for co-employees to use, used it herself when co-employees thought it was too hot for her, grabbed trays without gloves after being warned the trays were too hot and got burned, and grabbed one coworker too hard with her right hand instead of grabbing a pot. However, one coworker, Pinkie Bostic, who testified to most of these incidents, was of the opinion that Petitioner "could probably do the job if not around hot things like pots and water."

    
    

22. One coworker testified that Petitioner had begun to have a personality change shortly before her stroke. However, it is not clear from this witness' testimony whether Petitioner's alleged personality problem manifested itself before the 1989 operation and CVA, which occurred while Petitioner was still head cook, or whether the alleged personality problem occurred later, just before a second stroke or seizure which occurred at some unspecified time after the Petitioner returned to employment as an undercook with Respondent (See Finding of Fact 11 supra). Petitioner and all the other employees who testified at formal hearing specified that when Petitioner returned to work after her operation and stroke she began to be difficult to get along with and it was then that she was frustrated and "touchy" in dealing with coworkers. Upon the foregoing, it is found that Petitioner's "touchiness" only began when she first evidenced aphasia after the operation/first stroke and came back to work as an undercook and that her "touchiness" continued thereafter through the second stroke/seizure.

    
    

23. Petitioner also had at least two serious emotional outbursts about being unable to sign in or out on her timesheet and what she could do and/or was allowed to do on the job. These incidents were complicated by Petitioner's

    anger and frustration at not being able to adequately express herself orally when under strain.

    
    

24. Petitioner perceived her co-employees as uncooperative with her due to their lack of understanding of her aphasia. She felt they treated her as "retarded." She testified that they intervened whenever she tried to do food preparation and cooking chores and would not allow her to complete those chores, thus making her frustrated and angry. Petitioner's co-employees testified that Petitioner had made this same complaint to them and each stated that they had offered advice as to how she should do things and had taken jobs away from her occasionally because they feared she would cut or burn herself.

    
    

25. Petitioner also had complained to co-employees about being left by them to do only the dirty work, including but not limited to mopping up.

    
    

26. Supervisors and Petitioner's adult daughter testified that mopping up was part of Petitioner's job description but not all of it.

    
    

27. Tracey Ramsey, the new head cook, testified without refutation, that on some occasions, Petitioner refused to do the work that was intentionally left over for her to do because her co-employees were not talking to her.

    
    

28. Petitioner's adult daughter and her husband observed Petitioner prepare food at home both before and after each stroke. Petitioner's husband and daughter observed that Petitioner could do her own cooking at home at all times. The daughter observed Petitioner prepare food on the job after the first stroke, and confirmed that after the first stroke, Petitioner was "protected" by Ms. Cummings, a supervisor, who would not let her do much and who would stop Petitioner from doing more complex tasks and send her to wash pots and pans instead. It is undisputed that washing pots and pans was also part of Petitioner's job description. The daughter observed that Petitioner could do her physical food preparation job but no longer could do its paperwork.

    
    

29. On April 26, 1990, Petitioner had a three-hour conversation with Ivory

    J. Gray, Respondent's local director, in which Petitioner expressed her frustration on the job, asked that Ms. Gray give her another leave of absence without pay, and said she was considering quitting. Ms. Gray told Petitioner she did not have the authority to grant a further leave of absence and would have to refer the request to her own supervisor.

    
    

30. That evening, a staff meeting was held in Lake Panakoffsky. Petitioner requested that Linda B. Blevins, Educational Consultant, read a prepared statement from Petitioner to the staff. Permission for this reading was secured from Ms. Gray, and the prepared statement was read. This document was not offered into evidence. However, upon the credible testimony of

    Petitioner and Ms. Blevins, it is found that regardless of others' perception of this document, Petitioner's prepared statement was meant to convey her frustration with the work situation and that she intended to "stick it out" and persevere with overcoming her disability, particularly her speech problem, and with holding her job.

    
    

31. In the parking lot after the staff meeting, Petitioner and Ms. Gray had a conversation. Ms. Gray testified that on that occasion, Petitioner told her: "Friday will be my last day," meaning Petitioner was quitting her job. Petitioner denied that she quit. Martha Lawson testified that she overheard Petitioner tell Ms. Gray she was quitting. Petitioner's husband observed the physical location of all three women in the parking lot and testified that

    Martha Lawson was not even in the vicinity of the conversation between Petitioner and Ms. Gray. Respondent has consistently relied upon this conversation to show that Petitioner voluntarily quit her employment and was not fired.

    
    

32. Regardless of what was said or understood or misunderstood in the parking lot conversation, that conversation is not determinative of this case because Petitioner orally and by all of her subsequent conduct, including reporting for work each day, evidenced her desire to retain her job, and because Respondent subsequently reacted as if Petitioner could remain employed if she were medically fit to do so.

    
    

33. Petitioner reported to work as usual on Friday, April 27, 1990. Neither she nor any supervisor said anything about her quitting.

    
    

34. On Monday, April 30, 1990, Petitioner again reported to work as usual. At that time, Viennessee Black was directly supervising Petitioner. Ms. Gray telephoned Ms. Black to say Petitioner had resigned. Ms. Black told Ms. Gray that the Petitioner was working there as usual.

35. Ms. Gray then composed a memo which read in pertinent part: As per our conversation on the evening of

    April 26, 1990, at the Staff Meeting; you

    informed me that you were resigning, effective Friday, April 27, 1990.

    
    

36. Ms. Gray presented Petitioner with the memo and asked her to sign it as a letter of resignation. Petitioner refused, asserting that she had not resigned. Respondent ceased to pay Petitioner and would not let her perform her job after April 30, 1990.

    
    

37. Petitioner sought to continue to work. The situation became acrimonious with the Respondent employer giving consideration to psychological counseling for Petitioner with and without the participation of her co- employees. On June 15, 1990, a two hour conference was held with a psychologist, Dr. Bernard Lax, Petitioner and her husband, Ivory J. Gray, Michael Georgini, Director of Head Start, and Viennessee Black. Petitioner was again asked to provide specific information regarding her medical status, prognosis, and job analysis from her physicians and the speech pathologist. She was told that a decision would be made regarding her employment upon receipt of this information by the Head Start Program. Mr. Georgini asked to meet with Dr. Williams. Petitioner authorized the meeting. An appointment for the meeting was made for July 3, 1990. The results of this meeting, if it actually took place, are not in evidence. Petitioner thereafter submitted no further written medical assessments to Respondent.

    
    

38. On July 3, 1990, Petitioner's speech/language pathologist wrote Mr. Georgini in pertinent part:

    
    

    Her speech rate is considered to be 80-90% fluent. She continues to experience some hesitations of speech when feeling "rushed" but she is fully capable of discussing almost all everyday problems or topics if given time to respond and not interrupted [sic].

    She now has the foresight to know her strengths and limitations and well [sic] ask for assistance either with speech or a task. Comprehension of conversation and verbal information is well within the normal adult level.

    
    

    Connie continues to have difficult [sic] with writing and arithmetic calculations. Connie si [sic] fully aware of these limitations and will be the first to admit her inability to do so. This is not to say that she is not capable of using measuring device but rather would not be able to calculate a budget, or write a check, etc. She is capable of copying words and numbers without difficulty.

    
    

    Emotionally, Connie has had to regain her courage, confidence and self worth. She is fully aware that others around her do not understand her "Aphasia" and may acquaint this to a retardation disorder. As you know, an aphasic individual retains full intelligence but has difficulty with deliverance at times. Connie has always had a strong sense of determination and motivation. She has also learned the art of being able to laugh at herself and her mistakes.

    
    

39. On July 23, 1990, Ms. Gray wrote Catholic Social Services saying the Respondent would not pay for counseling for Petitioner after her July 9, 1990 session.

    
    

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

    
    

41. The Respondent is an "employer," as defined in Section 760.02(6), F.S. It is noted that Respondent did not file a timely answer to the petition herein as required by Rule 22T-9.008(5) F.A.C. and consequently was not entitled to put on a case, but was permitted to do so anyway.

    
    

42. The Petitioner alleged that she had been discriminated against in her employment, or terminated therefrom, by reason of a handicap.

    
    

43. Section 760.10(1)(a), F.S., applicable to this case, provides as follows:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise 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. (Emphasis supplied)

          
          

44. Unfortunately, no direct definition of the term "handicap" is provided in this portion of the statute. Cf. -- Section 760.22(7) F.S. which technically applies only to "fair housing" issues but which is also instructive here. Therefore, decisions of the Florida Human Relations Commission must be consulted to ascertain the meaning that has been given this term. In Thomas v. Floridin Company, 8 FALR 5457, at 5458 (1986), the Commission defined "handicap" as follows:.

    
    

    In interpreting the term handicap, the Human Rights Act of 1977, the Commission has consistently chosen to give handicap a meaning in accordance with common usage.

    
    

    Generally, "handicap" connotes a condition that prevents normal functioning in some way; a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental, or physical faculties. See also Kelly v. Bechtel Power, 633 F. Supp. 927, 931 (SD Fla. 1986).

    
    

45. Accordingly, the first rung of the evidentiary ladder which Petitioner must attain is to establish that her aphasia is a "handicap". Upon the foregoing findings of fact, Petitioner's aphasia is concluded to constitute such handicap.

    
    

46. The shifting burdens of proof in discrimination cases have most recently been examined in Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991) which stated:

    
    

    Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct.

    1089, 67 L. Ed. 2d 207 (1981)] formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfied its burden, the employee must then persuade the fact finder that the proffered

    reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies

    his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.

    
    

47. For purposes of proving a prima facie case of discrimination on the basis of handicap, Petitioner must minimally affirmatively show that she has a physical impairment which substantially limits one or more of her major life activities, that the employer knew of the handicap, and that the employer failed to find a job function consistent with those physical limitations.

    
    

48. Petitioner herein has proven that she is a handicapped person as contemplated by the appropriate statute, that the employer knew of the handicap, and that the employer forced her out of a job description she was capable of performing. She has thus established her prima facie case.

    
    

49. Also herein, the employer has failed to state legitimate, nondiscriminatory reasons for the employment decision, reasons which are clear, reasonably specific, and worthy of credence. The employer's reasons for termination all ultimately relate to the employee's handicap but not to her inability to perform her job description.

    
    

50. Respondent defended this case upon several theories, not all of which are logically compatible, and some of which are not worthy of credence. First, Respondent insisted that Petitioner voluntarily quit her job. Since every act of Petitioner and Respondent have negated such an interpretation of the facts, that contention is rejected. Petitioner was forced out of employment by a de facto discharge. Second, Respondent suggested that Petitioner exhibited excessive absenteeism. This theory was not documented, not proven, and made no real difference to Respondent, since Respondent claimed not to have terminated Petitioner for absenteeism, but merely to have accepted her oral resignation. Third, Respondent obliquely put forth that Petitioner was overly emotional and could not get along with others. However, again, if Respondent did not terminate Petitioner for this reason, it is immaterial here, as is the peripheral suggestion that Petitioner occasionally refused to perform certain job duties, claiming harassment. Fourth, Respondent asserted that Petitioner was not employable because she was dangerous to herself and others and no appropriate job description could be devised to prevent her having occasional accidents. Respondent did demonstrate that Petitioner had some minor accidents and made some minor errors in the course of her employment, but these were never shown to be substantial by any reasonable test: danger/harm to self, danger/harm to others, lack of sanitation, substantial monetary loss, or drain on a workers' compensation policy or funds. More particularly, it was not shown that any non-handicapped employee would have been terminated for such minor errors and accidents.

51. The only reasonable defense to a handicap discrimination charge under these circumstances is that Respondent reasonably accommodated Petitioner's handicap and she still was unable to do her job. That has not been demonstrated here.

    
    

52. All the medical and speech therapy records and the lay testimony herein shows that, except for writing and arithmetic, Petitioner could do her job of food preparation and cleanup for at least four hours per day but that when she was overprotected or denied the opportunity to do anything other than mop floors, she became frustrated and emotional and her aphasic speech problems were aggravated. A vicious cycle commenced and was perpetuated by Respondent's employees' prejudice or ignorance against Petitioner's particular type of handicap. When Petitioner was criticized or "helped," she admittedly became very "touchy." Her "touchiness" made her hard to work with, and she increasingly made mistakes and had emotional outbursts. Respondent's employees did not like the resultant emotional climate, and Respondent reacted by using the Petitioner's handicap as an excuse to create a de facto termination.

    
    

53. It is part and parcel of any job description for employees not to aggravate one another unduly, but Petitioner was not fired for having a "bad personality" or "bad attitude."

    
    

54. If Petitioner just had a bad personality or an attitude which aggravated her coworkers, or if she had simply and unjustifiably refused to do the menial parts of her job description, those reasons would have been a legitimate reason to terminate her. See, Nix v. WLCY Radio Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984), holding:

    
    

    "The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."

    
    

    See also, Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

    
    

55. However, here, even the emotional component of Petitioner's aphasia does not seem to have prevented her from accomplishing standard job tasks. The interference of coworkers prevented her completing job tasks. However well- intentioned this interference was, it went beyond the stage of being helpful and became harassment.

    
    

56. Even if it could be determined that the employer's proffered reasons for terminating Petitioner were somehow "legitimate" but just not "persuasive," under the court's language in the Chandler case supra, the evidence as a whole is persuasive that the employer's proffered reasons were a pretext for intentional, albeit non-malevolent, discrimination.

    
    

57. Accordingly, it is concluded that Petitioner should prevail herein.

    
    

58. Jurisdiction is reserved in the Division of Administrative Hearings to determine back wages and costs, if any, in the event the parties are unable to agree on the amount.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order which:

1. Cites the Respondent for an unlawful employment practice and orders Respondent to cease and desist such practice.

   
   

2. Orders Respondent to pay Petitioner the equivalent of salary and all emoluments for four-hour workdays for all workdays from April 30, 1990 until Respondent re-employs her.

   
   

3. Requires Respondent to re-employ Petitioner in a job description commensurate with her handicapped capabilities.

RECOMMENDED this 22nd day of February, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1993.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2681

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1. Accepted that Petitioner did not voluntarily resign. The characterizations of burdens of proof and legal arguments are rejected.

2. Immaterial in part unproven in part. In response to specific questions of the undersigned, Petitioner replied that pay stopped 4/30/90 and she was kept off premises as of July.

3. Accepted that Petitioner demonstrated behavioral problems prior to one stroke or seizure but not dispositive. Covered in Findings of Fact 11 and 22.

4. Subordinate and non-dispositive, but covered in substance.

5. Immaterial, but covered in substance.

Respondent's PFOF:

The "Statement of the Issues" is treated as "Proposed Findings of Fact."

1. Rejected as not proven, as legal argument, and as a different point in time than that under consideration.

2,3,4,5 Rejected as not supported by the greater weight of the record evidence and as conclusory, not a proposed finding of fact. Covered in Findings of Fact.

"Findings" is also treated as "Proposed Findings of Fact".

Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence.

COPIES FURNISHED:

Constance Fiedorowicz

460 Hale Avenue Apt. 20 Brooksville, FL 34601

Ivory J. Gray, Director

Mid Florida Community Services, Inc. Post Office Box 896

Brooksville, FL 34605-0896

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, FL 32303-4113

Dana Baird, Esquire General Counsel

Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, FL 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-002681

Orders for Case No: 92-002681