STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA K. SEIP, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6337

) GULFCOAST BROADCASTING, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Shalimar, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 26, 1993. The Division of Administrative Hearings received the hearing transcript on March 23, 1993.

Counsel for petitioner asked for and was allowed 30 days thereafter in which to file a proposed recommended order, see Rule 60Q-2.031(2), Florida Administrative Code, but neither party in fact filed a proposed recommended order. Respondent has not, indeed, entered an appearance in the proceeding.

APPEARANCE

Mark Evan Frederick, Esq.

For Petitioner: Post Office Box 385

Destin, Florida 32540 STATEMENT OF THE ISSUES

Whether respondent discriminated against petitioner by failing to make reasonable accommodation for her alleged handicap, epilepsy, in violation of Section 760.10 et. seq., Florida Statutes?

PRELIMINARY STATEMENT

In response to petitioner's complaint that respondent discriminated against her on account of her handicap and her gender, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued December 23, 1991.

On petitioner's request for redetermination, however, FCHR's executive director, while leaving undisturbed the original determination of no cause to believe discrimination had occurred on account of gender, "reverse[d] the initial determination with respect to the issue of reasonable accommodation [and found] reasonable cause to believe that an unlawful employment practice occurred when Respondent failed to transfer Complainant from the night shift."

Petitioner subsequently filed a formal petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.008(1), Florida Administrative Code,

see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991). The petition does not allege discrimination on account of gender, and petitioner explicitly abandoned this claim at hearing.

FINDINGS OF FACT

1. Rebecca K. Seip's epilepsy was diagnosed, in August of 1989. Dilantin was prescribed. The following January she began working for respondent as a disc jockey at the "country radio station in Destin" (T.12) respondent once operated, but has since supposedly sold.

   
   

2. In the course of a job interview, Ms. Seip had told Daniel "Skip" Davis, then the station's program director, "I don't know that this will make any difference to you in hiring me . . . but I have a seizure disorder." T.11. She "explained . . . that was one of the reasons [she] needed a day job." Id.

   
   

3. Because Dr. Mack D. Jones, who diagnosed her condition, had told her "how detrimental it was to work a night shift and have your body off," (T.10) she gladly accepted respondent's offer to work from ten o'clock mornings to five o'clock afternoons (ten to three on the air), and gave up the job she had on a night shift at another station.

   
   

4. Three months after she began working for respondent, she became eligible for health insurance, under company policy. When the company's insurance agent reportedly declined to include her on a group policy, she was informed "that Pat Cobb, who was the [respondent's] business manager, asked him to please try to find some kind of coverage we could get." T.28.

   
   

5. After working days for respondent for approximately six months, Ms. Seip was directed to report at five o'clock afternoons, and work till midnight (six to midnight on the air) Monday through Friday; her "shift on Sunday was noon to six." T.33.

   
   

6. Before the schedule change took effect, she protested to Perry L. "Gabby" Bruce, who had become the radio station's general manager, replacing Edna Smith, who continued in respondent's employ as its "finance officer." Dr. Jones had directed her not to work night shifts, since the "seizure risk is increased." T.11.

   
   

7. In response to an oral report of her medical condition, Mr. Bruce asked if she had anything from a doctor that would corroborate her account. Declining to rescind the schedule change, he said, "Well, you know, there is really nothing I can do. . . . Don't worry if you have a seizure. . . . It is not going to affect your job." T.15.

   
   

8. On July 23, 1990, Ms. Seip procured a handwritten note Dr. Jones apparently wrote on one of his prescription forms:

   
   

   Please don't have Ms. Seip work nite shift. This will increase her seizure risk. She needs normal nights sleep.

   
   

   Petitioner's Exhibit No. 1. Ms. Seip left the note in Mr. Davis' basket or "in box." By this time, she had begun night shifts.

9. At least twice respondent required her to work day shifts that began six hours after she had finished night shifts. Interspersed among her routine night shifts were other day shift assignments, when illness or other cause made the disc jockeys regularly assigned unavailable. Not only her sleep patterns but also her eating habits suffered.

   
   

10. She lost 20 pounds while working night shifts for respondent. After the scheduling change in mid-July, she had occasional seizures even when she worked days. Some of these seizures amounted to no more than the "shakes" and nausea. All of her "more severe" (T.39) seizures occurred after the scheduling change, however.

    
    

11. Other people at the radio station, including Penny Austin, the receptionist, Pat Cobb, the business manager, Mr. Davis, Ms. Smith and Steve Williams, a disc jockey, saw the daytime episodes. When she had a seizure during a day shift (after the change to night shifts), fellow employees laid her on the couch in Mr. Bruce's office, and told him what had happened when he returned from lunch.

    
    

12. One night, alone at the radio station, she telephoned her sister for help (reaching her after twice misdialing). With difficulty Debra Ann Seip elicited the program director's telephone number; and called him. By the time the person Mr. Davis dispatched reached the station, she found Rebecca incapacitated. The music had stopped. Scott Brown, the disc jockey who ordinarily relieved her at midnight eventually took over.

    
    

13. Repeated requests to return to a day shift having been refused or ignored, Ms. Seip filed a complaint with the Florida Commission on Human Relations in October of 1990. When he learned of this, Mr. Davis told her she "had opened up a whole can of worms, and if [she] wanted a gun fight that [she] had one." T.40.

    
    

14. In the spring of 1991, while Ms. Seip was home recovering from an automobile accident, she received a "letter from Gabby Bruce, telling [her] she needed to come in and talk to Skip about the new schedule change "

    T.41 At the time, she had been away from work approximately two weeks.

    
    

15. When she spoke to Mr. Davis, he told her that respondent was "going to be using a satellite system that would" (T.44) eliminate the need for disc jockeys between six o'clock in the evening and six o'clock in the morning, and that she no longer had a job.

    
    

16. Mr. Davis told her they planned to use satellite programming at night beginning in two weeks. Ms. Seip understood that respondent planned eventually to eliminate "all the weekend positions as well." T.51. As it turned out, respondent's "satellite programming didn't go on until the following January full time" (T.44) and disc jockeys were needed at night, at least through the end of 1991.

    
    

17. Respondent first "split the shift up between [three] part timers [two of whom had less seniority than Ms. Seip] . . . [then a]fter a month or two . .

    . put somebody back in [what had been her] position." T.46. Ms. Seip's replacement was a woman, one of three new hires in the five months following her departure.

18. Ms. Seip was unable to find work in her field at the radio stations to which she applied in the vicinity. News of her having sought relief from the FCHR spread. Eventually Ms. Seip moved to Nashville, Tennessee, and found work there. Lost wages on account of her termination, offset by earnings from odd jobs before she found work that paid as much as or more than she earned working for respondent amounted to $14,000.

    
    

    CONCLUSIONS OF LAW

    
    

19. Since FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), "the division has jurisdiction over the formal proceeding," Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), including jurisdiction over any jurisdictional questions presented.

    
    

20. Petitioner maintains that she was discriminated against, and ultimately discharged, because of epilepsy, in violation of the Florida Human Rights Act of 1977, now superseded by the Florida Civil Rights Act of 1992. Petitioner contends that respondent acted unlawfully in unilaterally ending her employment; she does not rely on any theory of constructive discharge. Section 760.10(1)(a), Florida Statutes (1992 Supp.) makes it unlawful for an "employer" to "discharge . . . any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . . . handicap."

    
    

    Respondent's Status As "Employer" Assumed for Purposes of Analysis

    
    

21. On the assumption that FCHR has jurisdiction over respondent, petitioner has easily met her burden to show that her condition amounts to a "handicap" as that term is defined by the FCHR and Florida courts under the Florida Civil Rights Act of 1992. The FCHR has defined "handicap" as follows:

    
    

    Generally, a 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.

    
    

    Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4705 (FCHR 1986) (quoting Fenesy v. GTE Data Services, Inc., 3 Fla. Admin. L. Rep. 1764-A, 1765-A (FCHR 1982). This definition is intended to give a "meaning in accordance with common usage," and is not the definition of the same term in the federal Rehabilitative Act. Kelley v. Bechtel Power Corp., 633 F. Supp. 927, 931 (S.O. Fla. 1986). Harvey v. Alachua County Board of County Commissioners,

    12 Fla. Admin. L. Rep. 2661, 2668 (FCHR 1990). Epilepsy or seizure disorders of the kind Ms. Seip experienced on the job are clearly included.

    
    

22. Employers must make reasonable accommodation for known handicapping conditions of their employees. The FCHR has dismissed handicap discrimination complaints on grounds that employees failed to identify their conditions for their employers as handicaps, or failed specifically to request an accommodation by their employers. See, e.g., Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4709 (FCHR 1986); Harvey v. Alachua County Board of County Commissioners, 12 Fla. Admin. L. Rep. 2661, 2668 (FCHR 1990); Shepherd v. Redman

    Homes, 10 Fla. Admin. L. Rep. 1611, 1615 (FCHR 1988). Here Ms. Seip apprised her employer of her handicap and asked for a specific, reasonable accommodation.

    
    

23. Because Florida courts and the Florida Commission on Human Relations have adopted the McDonnell Douglas standard for allocating the burden of proof in handicap discrimination discharge cases, see Kelley v. Bechtel Power Corp., 633 F. Supp. 927, 935 (S.D. Fla. 1986), a petitioner must ordinarily prove, by a preponderance of the evidence, that

    
    

    1. . . . she is a member of a protected class, (2) . . . she was qualified for the job, (3) . . . she was discharged, and (4) after discharge, the position was filled by someone outside the protected category,

       
       

       Mayo v. The Advocacy Center for Persons with Disabilities, Inc., 12 Fla. Admin.

       L. Rep. 2624, 2634 (FCHR 1990), in order to make out a prima facie case and require a respondent to articulate a legitimate, non-discriminatory reason for her discharge. Here petitioner did not establish that her replacements were not epileptic, and adduced no direct evidence that she was discharged because of her epilepsy. She failed to prove that her employment was terminated because of her handicap.

       
       

24. The evidence did show, however, that respondent, in transferring Ms. Seip to an evening shift and, subsequently, in failing to restore her to a shift during normal waking hours, failed to make a reasonable accommodation. But petitioner did not prove that she would not have been discharged if the change had not occurred. Nor did petitioner establish any other basis for an award of damages for respondent's failure to make a reasonable accommodation. Petitioner did not prove the value of the insurance coverage she went without or the reason for its absence (or delayed beginning).

    
    

    Respondent's Status As "Employer" Not Proven

    
    

25. Even on the assumption that respondent qualifies as an employer, petitioner has not proven entitlement to damages. The form petition for relief also seeks, however, an "order prohibiting the unlawful employment practice and granting such affirmative relief as may be just and equitable," whether or not damages are proven. It is, therefore, necessary to examine the assumption that respondent falls within the statutory definition of "employer."

    
    

26. The burden to prove that respondent is an employer within the meaning of the statute rests on petitioner. Florida law defines an employer as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1992 Supp.), see Regency Towers Owners Ass'n, Inc. v. Pettigrew, 436 So.2d 266 (1st DCA 1986) rev. den. 444 So.2d 417 (Fla. 1984).

    
    

27. The evidence adduced at hearing did not establish with precision how many people respondent employed. Petitioner's original complaint put the number at "15+," and FCHR investigators apparently agreed with this assertion. But proceedings at the Division of Administrative Hearings are de novo, and "free form" fact findings enjoy no presumption of validity, as counsel was explicitly advised. T.5.

28. At the final hearing, the evidence showed that, until the spring of 1991, respondent employed disc jockeys around the clock. There was testimony concerning the general manager (Smith then Bruce), the finance officer (Smith), the business manager (Cobb), the sales manager (Cloud), the program director (Davis), the receptionist (Austin), a disc jockey on the midnight shift (Brown) a day shift disc jockey (Williams), three part-time disc jockeys, three unnamed new hires, at least one of whom was full-time, and Ms. Seip herself.

    
    

29. But the evidence fell short of proof that respondent, now "either insolvent or dissolved" (T.3) according to petitioner's counsel, employed "15 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year." Section 760.02(6), Florida Statutes (1992 Supp.).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the FCHR deny the petition for relief from an unlawful employment practice.

DONE AND ENTERED this 13th day of July, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 13th day of July, 1993.

COPIES FURNISHED:

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Mark Evan Frederick, Esquire

P.O. Box 385 Destin, FL 32540

Perry L. Bruce General Manager

Gulfcoast Broadcasting, Inc.

P.O. Box 817 Destin, FL 32541

Rebecca K. Seip

1205 B. Holly Street Nashville, FL 37206

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

REBECCA K. SEIP, )

)

Petitioner, )

) EEOC Case No. 15D910043

1. ) FCHR Case No. 90-9437

   ) DOAH Case No. 92-6337 GULFCOAST BROADCASTING, INC., ) FCHR Order No. 94-033

   )

   Respondent. )

   )

   FINAL ORDER AWARDING AFFIRMATIVE RELIEF FROM AN UNLAWFUL

   EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner Whitfield Jenkins, Panel Chairperson;

      Commissioner Sandra Garcia; and Commissioner James Mallue.

      
      

   2. Appearances

      
      

      Neither Petitioner, Rebecca K. Seip, nor Respondent, Gulfcoast Broadcasting, Inc., appeared before the Panel for the deliberation in this matter.

      
      

   3. Preliminary Matters

      
      

      Rebecca K. Seip, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Gulfcoast Broadcasting, Inc., Respondent herein, unlawfully discriminated against her on the bases of sex and handicap (epilepsy).

      
      

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Upon a redetermination, the Executive Director affirmed the determination of no cause in respect to the allegation of sex discrimination, but for the allegation of handicap-based discrimination (epilepsy), the determination was reversed and a redetermination of partial cause was issued.

      
      

      Efforts to conciliate the matter were unsuccessful. Petitioner then filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding. In the Petition for Relief, Petitioner alleged only discrimination based upon handicap. She did not allege sex discrimination and she did not present any evidence directed toward showing sex discrimination.

      
      

      An administrative hearing was held in Shalimar, Florida, before DOAH hearing officer Robert T. Benton, II, who has issued a Recommended Order.

      
      

      Pursuant to notice, public deliberations were held in Tallahassee, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

      
      

   4. Rulings on the Exceptions

      
      

      Petitioner timely filed two exceptions to the Recommended Order. First, Petitioner argues that she submitted admissible evidence to prove the amount of monetary damages she incurred as a result of Respondent's unlawful employment practice. She asserts that the hearing officer's ruling to the contrary is

      erroneous. Secondly, Petitioner argues that the evidence which she submitted regarding the employees employed by Respondent in 1990 and 1991 demonstrates that Respondent was, at all relevant times, an employer within the meaning of Section 760.02(6), Florida Statutes (1991). According to Petitioner, the hearing officer errs in concluding that she failed to prove Respondent's status as an employer.

      
      

      1. EXCEPTION ONE - Petitioner's exception has merit. Over a period of more than three (3) months, Respondent continued its refusal to meet its statutory obligation to accommodate Petitioner's disability. Respondent's persistent refusal eventuated in job separation. Accordingly, Respondent is held liable for the resulting monetary damages in the amount of $14,000.00.

         
         

      2. EXCEPTION TWO - Petitioner's exception here has merit also. It is hereby concluded that Respondent meets the numerosity requirement contained in Section 760.02(6), Florida Statutes (1991), and hence Respondent's status as an employer is proven. The hearing officer's contrary finding is overruled.

      
      

      During her sworn testimony, Petitioner enumerated at least 15 job positions which were occupied by employees during the calendar years 1990 and/or 1991.

      Her testimony is based upon her firsthand observations and judgement. She states there were at least 15 persons in the Respondent's workplace for at least

      20 weeks in 1990 and/or 1991. Petitioner's testimony is without rebuttal from any source. Therefore, the preponderance of the evidence is that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes (1991).

      
      

   5. Findings of Facts

      
      

      The rulings on Petitioner's two exceptions are incorporated into the hearing officer's findings of fact. With the rulings so incorporated, we adopt the hearing officer's finding of fact.

      
      

   6. Conclusions of Law

      
      

      The rulings on Petitioner's two exceptions are incorporated into the hearing officer's conclusions of law. With the rulings so incorporated, we adopt the hearing officer's conclusions of law. Any legal conclusion inconsistent with the rulings on the exceptions are expressly rejected.

      
      

   7. Award of Affirmative Relief

Respondent, Gulfcoast Broadcasting, Inc., is hereby found liable to Petitioner, Rebecca K. Seip, in the amount of $14,000.00, plus interest at the rate of 12 per cent per annum, begining with the date on which this order is entered.

Each party is advised of the right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P. 9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Whitfield Jenkins, Panel Chairperson; and

Commissioner James Mallue.

Commissioner Sandra Garcia (concurring in part and dissenting in part):

I agree with the majority decision in all respects but one. According to the hearing officer, Petitioner failed to prove that the $14,000.00 loss of wages was caused by the failure of Respondent to provide reasonable accommodations for Petitioner's disability. I would adopt the hearing officer's finding in this regard.

Commissioner Sandra Garcia

FILED this 24th day of March, 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies furnished to:

Rebecca K. Seip, pro se 1205 B. Holly Street Nashville, Tennessee 37206

(Courtesy Copy to

Mark Evan Frederick, Esquire Post Office Box 385

Destin, Florida 32540)

Perry L. Bruce, General Manager Gulfcoast Broadcasting, Inc.

Post Office Box 817 Destin, Florida 32541

Robert T. Benton, II, DOAH Hearing Officer Harden King, Legal Advisor

Docket for Case No: 92-006337

Orders for Case No: 92-006337