CHRISTIAN C. GRIGGS,
vs.
Respondent.
) Case No. 04-3577
A formal hearing was conducted in this case on December 9, 2004, in Mariana, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Christian C. Griggs, pro se
For Respondent: Herman D. Laramore, Esquire
The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
On February 4, 2004, Petitioner Christian C. Griggs (Petitioner) filed an Employment Charge of Discrimination with the Florida Commission on Human Relations (FCHR). In the charge, Petitioner alleged that Respondent State of Florida, Public Defender, 14th Judicial Circuit (Respondent), had discriminated against her by terminating her employment because she was disabled.
On August 26, 2004, FCHR issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner subsequently filed a Petition for Relief with FCHR. On September 30, 2004, FCHR referred the case to the Division of Administrative Hearings.
On October 13, 2004, the undersigned issued a Notice of Hearing. The notice scheduled the hearing for December 9, 2004.
On October 15, 2004, Respondent filed a Motion for Summary Hearing. An Order dated October 27, 2004, denied the motion.
During the hearing Petitioner testified on her own behalf and presented the testimony of one additional witness.
Petitioner offered four exhibits that were accepted as evidence.
Respondent presented the testimony of the Public Defender for the 14th Judicial Circuit and two additional witnesses.
Respondent offered 12 exhibits that were accepted as evidence. The parties did not file a transcript of the proceeding.
On December 17, 2004, Respondent filed a Proposed Recommended Order. On December 20, 2004, Petitioner filed a Proposed Recommended Order.
All citations hereinafter are to Florida Statutes (2003), except as otherwise specified.
Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997.
In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned.
In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal
secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida.
Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service.
In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing.
By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay."
In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business.
In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive.
On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003.
On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen.
On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks.
On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The
doctor's note stated that Petitioner would not be able to work for six weeks.
On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone.
Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida.
Petitioner was Respondent's only secretary in Port St.
Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there.
During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led
Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation.
In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser
further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position.
Petitioner's medical excuse expired on May 8, 2003.
Petitioner did not return to work or provide Respondent with further medical documentation.
On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse.
Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent.
Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began
working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month.
Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis.
Respondent's attendance and leave policy states as follows in relevant part:
STATEMENTS OF POLICY
* * *
The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted.
Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence.
* * *
(b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office.
* * *
3.14 FAMILY AND MEDICAL LEAVE
In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition.
Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave.
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(4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status.
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(7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as
well as certification of an employee's fitness to return to work.
From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.10, Fla. Stat. (2004).
It is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability or handicap. See
§ 760.10(1), Fla. Stat.
The provisions of Chapter 760, Florida Statutes, are analogous to those of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. Section 12101, et seq. Cases interpreting the ADA are, therefore, applicable to Chapter 760, Florida Statutes. See Razner v. Wellington Regional Medical Ctr., Inc., 837 So. 2d 437, 440 (Fla. 4th DCA 2002).
A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973).
If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate
non-discriminatory reason for the actions it took. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Respondent's burden is one of production, not persuasion, as it always remains Petitioner's burden to persuade the fact-finder that the proffered reason is a pretext and that Respondent intentionally discriminated against Petitioner. See Burdine, 450 U.S. at 252- 256.
To prove a prima facie case of handicap discrimination, Petitioner must establish the following elements: (a) she was a disabled person within the meaning of the Florida Civil Rights Act and the ADA; (b) she was able to perform her assigned duties satisfactorily; and (c) Respondent did not accommodate Petitioner's disability and/or discharged Petitioner despite her satisfactory performance. Swenson-Davis v. Orlando Partners, Inc., 16 F.A.L.R. 792, 798 (FCHR 1992).
A person is disabled when: (a) he or she has a physical or mental impairment that substantially limits one or
more major life activities; (b) he or she has a record of having an impairment; or (c) he or she is regarded as having an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)(I).
Petitioner did not present competent medical evidence that she is disabled. In fact, Petitioner testified that she was not diagnosed as being disabled until October 2003. Even so, it is clear that Respondent regarded Petitioner as having serious medical problems which justified over 12 weeks of leave without pay in the last year of her employment.
A qualified individual with a disability must establish that he or she is able to perform the essential functions of the job with or without reasonable accommodation. LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998). "The employee retains at all times the burden of [persuasion] . . . that reasonable accommodations were available." Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996).
An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide "reasonable accommodations" for the disability - unless doing so would impose undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a).
In this case, Petitioner never requested any accommodation other than leave without pay. Petitioner could
have inquired of her doctor and her employer whether she could return to work on oxygen. Her testimony that she never knew this was a potential accommodation is not credible.
Petitioner was qualified to work as a legal secretary before she became ill. Otherwise, Respondent would not have given Petitioner the transfer to the Port St. Joe office. However, Petitioner presented no persuasive evidence that she was able to return to work, with or without accommodation, as a legal secretary in Respondent's Port St. Joe office after March 2003.
To the extent that Petitioner was disabled and able to perform her duties satisfactorily, she completed her prima facie case of handicap discrimination by testifying that she was discharged despite her satisfactory performance. However, the greater weight of the evidence indicates that Respondent fired Petitioner because she failed to provide a medical excuse to justify further leave without pay. Respondent properly concluded that Petitioner had abandoned her job after providing Petitioner more than adequate notice in the May 5, 2003, telephone call and the May 6, 2003, letter.
Respondent had a legitimate non-discriminatory reason to terminate Petitioner's employment. Petitioner has not shown that Respondent's reason was a pretext for discrimination.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Herman D. Laramore, Esquire
Christian C. Griggs
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
