STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELODY WELCH,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-4241

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RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled case on March 24, 2005, by Stephen F. Dean, assigned Administrative Law Judge, of the Division of Administrative Hearings in Tavares, Florida.

APPEARANCES

For Petitioner: Melody Welch, pro se

34548 Oak Avenue

Leesburg, Florida 34788

For Respondent: Carolyn Dudley, Esquire

Department of Children and Family Services

Building 6, Room 123

1317 Winewood Boulevard

Tallahassee, Florida 32399-9070 STATEMENT OF ISSUE

Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.

PRELIMINARY STATEMENT

This case arose with the filing of a charge of discrimination based upon handicap with the Florida Commission on Human Relations. Following a determination of no cause, the Petitioner filed a Petition for Relief that was referred to the Division of Administrative Hearings. Following two continuances, the formal hearing was held on March 24, 2005.

Administrative notice was taken of documentation from a proceeding instituted by Petitioner before the Public Employees Relations Commission (PERC), including the transcript of a hearing. This transcript will be referred to as PERC T and the documents will be referred to by their titles.

Petitioner testified and presented Exhibits numbered 1 through 11. Respondent presented the testimony of Mary O'Quinn and introduced Exhibits numbered 1 through 6. A Transcript was filed on April 8, 2005. Petitioner filed a letter setting forth her proposed findings of fact that was read and considered.

Respondent filed a proposed order that was read and considered.

FINDINGS OF FACT

1. Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy.

2. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work.

3. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003.

4. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated.

5. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a

   note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave.

6. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job.

7. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003.

8. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks.

9. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment.

10. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork.

11. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request

    to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement.

12. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that:

    On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request.

    However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request.

    
    

    The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact.

13. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose

    retirement in July 2003, and admitted that she was not able to come to work at that time.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this case pursuant to Section 760.11, Florida Statutes, because the Florida Commission on Human Relations determined that there was not reasonable cause to believe that a violation of the Florida Civil Rights Act had occurred.

15. Claims of handicap discrimination under the Florida Civil Rights Act are analyzed in the same manner as claims under the ADA and its predecessor, the Rehabilitation Act of 1973. Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 314 (Fla. 4th DCA 2004); Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).

16. To establish a prima facie case of employment discrimination based on handicap under the Florida Civil Rights Act, a claimant must show three things: 1) that he or she is a handicapped individual under the act; 2) that he or she is otherwise qualified for the job (with or without reasonable accommodation); and 3) that he or she was excluded from the job or suffered adverse personnel action solely by reason of the

    handicap. See particularly Brand v. Florida Power, supra, at 633 So. 2d 510, which is very similar to this case.

17. There is an argument to be made that Petitioner was not disabled because she was only requesting an additional eight to ten weeks off to recuperate from her chemotherapy; therefore, her condition was not permanent. This does not consider the Petitioner's over six months of prior illness and its impact. The better view would be that, taken as a whole, Petitioner's illness was sufficiently long-term to constitute a disability under the statute.

18. Unfortunately, although Petitioner was qualified by her prior experience to perform the duties of the job, fatigue and the temporary compromise of her immune system left her unable to perform a major aspect of the duties of her job. At the hearing, when asked about "accommodation," Petitioner indicated that she sought added time away from the job as the accommodation, to include work at home, not protective clothing, because fatigue from the treatments was her primary concern, not her vulnerability to infection. Although time off may be a reasonable accommodation, under the circumstances of Petitioner having been absent for over six months, the question is whether granting this request was reasonable.

19. Respondent presented evidence that it could no longer keep Petitioner's position open. To do so, created a hardship

    in its operations. Similarly, it could not restructure its operations to let her work at home.

20. Petitioner was forced to retire or be terminated in the absence of returning to work having exhausted her leave time under the FMLA. Therefore, although Respondent could have "accommodated" Petitioner by granting her additional time off, it had no obligation to do so in excess of the time limits established in the FMLA.

21. Having failed to show that she was qualified to perform the duties of the job without additional time off, which was no longer a reasonable accommodation and having exceeded the maximum of the FMLA, Petitioner failed to show Respondent's actions were discriminatory.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination.

DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.

COPIES FURNISHED:

Melody Welch 34548 Oak Avenue

Leesburg, Florida 34788

Carolyn Dudley, Esquire Department of Children

and Family Services Building 6, Room 123

1317 Winewood Boulevard

Tallahassee, Florida 32399-9070

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 04-004241

Orders for Case No: 04-004241