STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON L. PENNINGTON, )

)

Petitioner, )

)

vs. ) Case No. 98-2542

) SCHOOL BOARD OF LAKE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 22, 1998, in Leesburg, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sharon L. Pennington, pro se

2512 Tecumseh Avenue

Leesburg, Florida 34748

For Respondent: Steven W. Johnson, Esquire

M. Catherine Wellman, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.

PRELIMINARY STATEMENT

This matter began on April 24, 1995, when Petitioner, Sharon L. Pennington, filed a Charge of Discrimination with the Commission on Human Relations alleging that Respondent, School

Board of Lake County, had violated Chapter 760, Florida Statutes, by discharging her from employment as a food service assistant on account of her handicap. On April 27, 1998, or approximately three years later, the agency issued its Notice of Determination: No Cause. Thereafter, Petitioner filed her Petition for Relief on an undisclosed date. The case was then referred by the agency to the Division of Administrative Hearings on June 3, 1998, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated June 30, 1998, a final hearing was scheduled on October 22, 1998, in Leesburg, Florida. On October 16, 1998, the case was transferred from Administrative Law Judge Suzanne F. Hood to the undersigned.

At final hearing, Petitioner testified on her own behalf and presented the testimony of Carla Lennon, Alice Mahan, and Betty Jane Smith, all School Board employees. Also, she offered Petitioner’s Exhibits 1-39. All exhibits have been received in evidence. Respondent presented the testimony of Ted Wolf, former principal at Fruitland Park Elementary School, and James R. Polk, Jr., former director of human resources for the School Board.

Also, it offered Respondent's Exhibits 1-10. All exhibits were received in evidence.

A transcript of hearing was filed on November 4, 1998.

Proposed findings of fact and conclusions of law were filed by Respondent on November 19, 1998. In addition, on November 13, 1998, Petitioner filed a letter dated October 8, 1998, which has been treated as her proposed order. Both filings have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Sharon L. Pennington, contends that in September 1994, Respondent, School Board of Lake County (School Board), failed to accommodate her handicap, and it then unlawfully terminated her from employment as a food service assistant on account of her hearing disability. The School Board denies the charges and contends instead that it offered Petitioner an alternative position in the school cafeteria, but when Petitioner never responded to that offer, and she failed to report to work, it terminated her from employment. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which regretably took more than three years to complete, the Commission issued a Notice of Determination: No Cause on April 27, 1998.

2. Petitioner, who is now forty-six years of age, suffered from hearing loss due to an episode of the measles at age three. She has worn a hearing aid in her left ear since the fifth grade and hearing aids in both ears since 1976. In 1993, she was diagnosed as having profound hearing loss. As such, she is a handicapped person within the meaning of the law. However, she did not disclose this handicap to her employer until 1994.

3. Petitioner began working part-time for the School Board in September 1984 as a food service assistant in the cafeteria at Fruitland Park Elementary School in Fruitland Park, Florida. She became a full-time employee in 1986 and continued working in that capacity until her termination on September 13, 1994. Although not specifically established at hearing, it can be reasonably inferred from the evidence that the School Board employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law.

4. On January 5, 1994, Petitioner was given a leave of absence from work due to a back injury suffered while lifting a box of vegetables. She filed a worker's compensation claim and remained out of work due to that injury until March 21, 1994. While investigating that injury, the School Board learned for the first time that Petitioner had a hearing disability. Although her treating physician authorized her to return to work on March 21, 1994, Petitioner requested a second medical leave of absence

   for the remainder of "this school year" due to "loss of hearing in both ears." She supplied a note from a doctor to this effect. On May 10, 1994, the principal of the school, Ted Wolf, authorized Petitioner to take unpaid leave from March 7 through May 31, 1994, or the remainder of the 1993-94 school year.

5. Petitioner contends that the School Board misunderstood the note from her doctor, and that he intended that she be allowed to take a leave of absence for not only the remainder of school year 1993-94, but also for the entire school year 1994-95. There is nothing of evidence to support this contention, and the doctor's note stipulated into evidence suggests otherwise.

6. On April 25, 1994, Petitioner sent the following letter to Craig Longacre, risk manager for the School Board:

   I am writing to you to let you know I do plan to return to work this fall. However, I am still interested in the Jack Rabbit Job.

   Should a position ever does [sic] come open, I do hope that you will keep me in mind as I do know I can do that job. I'm an honest person, perhaps too honest. I'm trustworthy, I do my job. I've been interviewed with Vocational Rehab. last Thurs, 4-20-94. Mrs. Bateman explained to me that whomever hires me regardless of my hearing disability and they give me a job, they would get a tax credit for employing me. I will remain at Fruitland Pk. Elem. Cafeteria until I hear from you. I do hope you will not pass this over me. I know I can do Jack Rabbit.

   Please keep me on your list for this.

7. During this same period of time, Petitioner orally advised the School Board that the noise levels in the dish room of the cafeteria were too high and aggravated her tinnitus.

   Accordingly, she asked that the School Board place her in another position.

8. In response to Petitioner's letter, and to satisfy her concern regarding noise levels in the cafeteria, Longacre directed that a Sound Measurements Study for the cafeteria be prepared by an ESE Program Specialist, MeShelda Mosley. Using a Quest Sound Meter to measure sound in decibels in various locations throughout the cafeteria area, Mosley determined that the noise levels in the serving line were lower than in the dishroom, where Petitioner had been working. This advice was memorialized in a report dated May 11, 1994.

9. After receiving this report, James R. Polk, Jr., Director of Human Resources, conferred with Mosley and Dr. Ziegler, an audiologist, and all agreed that the noise levels in areas other than the dishroom of the cafeteria were low enough so that Petitioner could continue working in another area of the cafeteria.

10. On May 14, 1994, Polk responded to Petitioner's letter with advice that "at no time [has the Board] considered terminating [Petitioner]," and that it was "very much aware of [her] problem and want[ed] to find a solution that will be satisfactory to both [her] and to the [School Board]." The letter added that because Petitioner had been satisfactorily employed in a food service position for a long time, the School Board's first option "[was] to find a position in food services

    that will work at that school." It reaffirmed the Board's prior offer to place her in a position which required her to prepare salads rather than working in the dish room. Polk went on to say that if that position did not work out, the School Board would look at "other options." Finally, in response to a request by Petitioner that she be reassigned to the position of Jack Rabbit mail courier, Polk stated that there was no current vacancy in that position, and he could not displace a current employee to accommodate her. If, however, a vacancy occurred in the future, he promised he would consider Petitioner for the position.

11. On May 17, 1994, Petitioner sent a letter to the school superintendent, Dr. Thomas Sanders, concerning the status of her health insurance and the use of the Sick Leave Bank while on a leave of absence. In addition, she pointed out that she had

    asked for another position, "should anything come open" when she returned, because the "cafeteria noise is bad for me."

12. In response to that letter, on May 24, 1994, Polk and Longacre jointly sent a letter to Petitioner by certified mail in which they again "assured [her] that at no time has the [School Board] considered terminating [Petitioner]" and that "other options [were being] considered."

13. Petitioner contends that she returned to work in a volunteer capacity for several hours in May 1994 to determine if she could satisfactorily handle the noise levels of another cafeteria position. Based on that experience, she says she could not "handle it." However, there is no documentary evidence, such as sign-in sheets, to support this contention; the cafeteria supervisor and two co-workers denied that she returned to work as a volunteer during that time period; and it was established that it is contrary to school policy for a person on medical leave to return to work in any capacity.

14. At hearing, Petitioner produced a copy of a letter dated "July 94" which she says was sent to Wolf's attention. In it, Petitioner advised him that she would "not be able to return to the lunchroom." She asked that he "look into" the possibility of her "doing the bookwork" in the lunchroom. If that was not possible, then until "anything else comes along," Petitioner asked that he "extend [her] leave of absent [sic] without pay, as it's listed in the School Board policy that if you work 3 yrs or

    more you can be granted up to 1 yr leave of absent [sic]." She added that if Wolf desired a doctor's note, he would have to go through her attorney in Ocala, who was then representing her on a worker's compensation claim. Wolf, however, never received the letter.

15. On or about the same time, Petitioner says she sent a similar letter to the residence of Carla Lennon, the new cafeteria supervisor, in which she advised Lennon that she would not be able to accept the alternative position offered by the School Board due to a "fear for [her]self and others." She asked that consideration be given to allowing her to do the "manager's bookwork and all the inventories." She also advised that a doctor's note could be obtained "through [her] attorney" in Ocala. Like Wolf, Lennon never received the letter.

16. On August 5, 1994, Wolf sent Petitioner the following letter:

    Greetings! It is that time of the year again. All Food Service Assistants are to report to work on August 12, 1994.

    
    

    Please plan on meeting with Carla Lennon, our new Food Service Manager at 7:00 a.m.

    
    

    I am looking forward to a great year. Hope your summer was restful.

    
    

    Petitioner received this letter on August 9, 1994.

    
    

17. The following day, Petitioner sent a letter to Dr. James Hardy, an ear, nose, and throat physician, requesting that he prepare a note indicating her work restrictions. Dr. Hardy

    sent Petitioner a letter on August 12, 1994, stating that Petitioner "is capable of working at a job that does not require oral communication." There was no mention that Petitioner could not return to work during the following school year or that she could not tolerate the noise levels in the salad preparation area of the cafeteria. Petitioner did not provide a copy of this letter to the School Board.

18. When Petitioner did not return to work on August 12 as directed by the school principal, on August 18, 1994, Wolf sent Petitioner the following letter:

    As of this date, August 18, 1994, you have not returned to work. I sent a letter on August 5, 1994 stating you were to return to work on August 12, 1994. When you failed to report, I called you to discuss your intent. You informed me you would have a doctor's statement on Monday, August 15, 1994. This has not been received as of this date.

    
    

    I attempted to provide an alternative work assignment in the lunchroom, such as making salads and working in the serving line. You once again informed me this would not be suitable. I have made every possible effort to accommodate you within the confines of your job responsibilities in the lunchroom.

    
    

    As a result, I am recommending to Dr. Sanders, your employment with the Lake County School System be terminated. This recommendation is based on School [B]oard [P]olicy: Absence Without Leave for Non- Instructional Personnel. A copy of this policy is attached.

    
    

    Petitioner acknowledges receiving this letter.

19. On August 23, 1994, the superintendent sent Petitioner a letter by certified mail which advised her that he intended to accept the principal's recommendation and recommend Petitioner for dismissal at the next School Board meeting on September 13, 1994. Before such action was taken, however, Petitioner was offered the right to an informal hearing to refute the charges.

20. Although Petitioner received both letters, she did not contact the School Board to see if her attorney had provided it with a copy of a doctor's note. She also did not exercise her right to have an informal hearing to refute the charges or seek a resolution of the controversy. Instead, she followed the advice of her worker's compensation attorney who surprisingly advised her to let the School Board terminate her.

21. By action taken on September 13, 1994, the School Board terminated Petitioner's employment effective at the end of the workday on September 13, 1994, for violating School Board Policy GDBD - Absence Without Leave for Noninstructional Personnel.

    This action was taken on account of Petitioner's failure to comply with the foregoing policy and not because of any handicap.

22. Although not pled in her Charge of Discrimination or Petition for Hearing, Petitioner has requested "payment for mental anguish of $200,000.00," "payment for loss of wages since her termination [of] $44,715.00," and "payment for loss of retirement of $100,000.00" and that the School Board "pay the taxes." Except for Social Security disability benefits,

    Petitioner has apparently been without income since her discharge in 1994.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes.

24. In her Charge of Discrimination dated April 21, 1995, Petitioner has alleged that she "was discharged from [her] position as a Lunchroom Assistant after being denied accommodation by Respondent;" that Respondent told her that "there were no positions available that would accommodate [her] handicap;" and that she had "been discriminated against because of [her] Handicap." If this charge is true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1993), which provides in relevant part as follows:

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

       1. To discharge . . . any individual . . . because of such individual's . . . handicap.

          
          

25. To make out a prima facie case of handicap discrimination under Section 760.10(1)(a), Petitioner must show that she is disabled; that she performed or was able to perform her assigned duties satisfactorily; and that despite her satisfactory performance, she was terminated. See, e.g., Clark v. Jackson County Hospital, 20 F.A.L.R. 1 182, 184 (Fla. Comm'n Human Relations, June 25, 1997). As to the first element of proof, there is no dispute that Petitioner "does not enjoy in

    some measure the full and normal uses of her sensory, mental or physical facilities." Thomas v. Floridin Company, 8 F.A.L.R.

    5457, 5458 (Fla. Comm'n Human Relations, October 9, 1986). Therefore, Petitioner is a person with a handicap within the meaning of the law.

26. Here, Petitioner has arguably met her burden of proving a prima facie case. The evidence shows that she is a handicapped person as defined by the Commission; while employed by the School Board she performed her job as a food service assistant in a satisfactory manner; and despite her performance, she was terminated.

27. Petitioner having carried her burden of producing evidence to make out a prima facie case, the burden then shifts to the School Board to articulate a nondiscriminatory reason for its employment decision. The evidence shows clearly that Petitioner was terminated for failing to return to work in violation of School Board policy. There was no rebuttal evidence that Respondent's offered explanation for termination was a mere pretext. This being so, the Petition for Relief must fail.

28. In reaching this conclusion, the undersigned has given careful consideration to Petitioner's sincere and well-intended contentions that her witnesses did not give truthful testimony at hearing because they feared they might lose their jobs; the Board failed to accommodate her handicap or offer her the job she requested; and in August 1994 the School Board failed to contact

    her attorney in Ocala to get a doctor's note.

    
    

29. As to the first contention, there is no evidence to support the argument that witnesses Lennon, Mahan, and Smith failed to provide truthful testimony at hearing. As to the contention that the School Board failed to accommodate Petitioner's handicap, the evidence suggests otherwise since the School Board conducted a sound meter test of the work area, consulted two professionals, reasonably concluded that Petitioner could safely work in a less noisy area of the cafeteria, and offered her an alternative position. As to Petitioner's request for a position as a mail courier, there is no requirement in law that an employer reassign a handicapped person to an occupied position, or create a new position for that employee. Terrell v. USAir, 132 F.3d 621, 625-26 (11th Cir. 1998). Finally, as to the contention that the School Board failed to contact her attorney to get her doctor's note, the ultimate responsibility to provide necessary documentation to support a leave of absence or change in position rested upon the employee. Even if the doctor's note dated August 12, 1994, had been provided to the School Board, however, it made no mention of a leave of absence or state that Petitioner could not tolerate the noise levels in the food preparation area of the cafeteria.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief.

DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998.

COPIES FURNISHED:

Sharon L. Pennington 2512 Tecumseh Avenue

Leesburg, Florida 34748

Stephen W. Johnson, Esquire

M. Catherine Wellman, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Commission on Human Relations.

Docket for Case No: 98-002542

Orders for Case No: 98-002542