STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LE'TANYA F. STONE, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 08-6408 |
GENTIVA CARE CENTRIX, | ) ) | |||
Respondent. | ) | |||
) |
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on
March 26, 2009, by video teleconference at sites in Tampa and Tallahassee, Florida.
APPEARANCES
For Petitioner: Le'Tanya F. Stone, pro se
3607 East 33rd Avenue Tampa, Florida 33610
For Respondent: Patrick F. Martin, Esquire
Littler Mendelson, P.C.
Two South Biscayne Boulevard Miami, Florida 33131
STATEMENT OF THE ISSUE
The issue is whether Respondent committed an unlawful employment practice against Petitioner.
PRELIMINARY STATEMENT
On or about May 20, 2008, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations ("Commission"). The Complaint alleged that Respondent discriminated against Petitioner based on associational disability and retaliation.
On November 7, 2008, the Commission issued a "No Cause" determination. On November 24, 2008, Petitioner timely filed a Petition for Relief ("Petition") with the Commission. The Petition alleged that Respondent engaged in an unlawful employment practice by discriminating against Petitioner based on her association with a person who has a disability and by retaliating against her.
On December 23, 2008, the Commission referred the matter to the Division of Administrative Hearings ("DOAH") to conduct the hearing requested by Petitioner.
The hearing was initially scheduled for February 23 and 24, 2009, but was rescheduled and held on March 26, 2009, after Respondent's motion for continuance was granted.
At hearing, Petitioner testified on her own behalf and presented the testimony of Jerald Stone, Petitioner's father, and Ernestine Ellis-Stone, Petitioner's mother. Petitioner's Exhibits A through I were received into evidence. Respondent presented the testimony of Margaret Walsh and Jamie
Rosenkoetter. Respondent's Exhibits 1 through 5 were received into evidence.
The Transcript of the proceeding was filed with DOAH on June 1, 2009. Respondent filed its Proposed Recommended Order
on June | 11, | 2009. | Petitioner filed a Proposed Recommended Order |
on June | 15, | 2009. | These filings have been considered in |
preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner, Le'Tanya Stone ("Petitioner"), was employed by Respondent, Gentiva Care Centrix ("Gentiva"), in April 2005, as a client care coordinator in the patient registration department and remained in that position until she was terminated on May 24, 2007.
Gentiva provides services for insurance companies by reviewing and coordinating patient referrals for home care which it receives from health care providers and discharge planners. Gentiva receives the patient referrals by telephone or by fax; employees assigned to the patient registration department are responsible for taking telephone referrals and/or retrieving fax referrals and coordinating those patient referrals.
Petitioner's job duties at Gentiva included retrieving and/or reviewing patient referrals sent by fax and coordinating those referrals.
Gentiva, including the patient registration department, is judged by certain standards established by the various insurance companies who are its clients. Those standards require Gentiva to meet a certain level of responsiveness as it relates to the referrals it receives. The company's ability to meet those standards requires a core number of people in that department. Moreover, Gentiva's level of success in meeting the established standards is directly affected by employee attendance.
The Care Centrix Attendance Management Guidelines
On or about September 1, 2005, Gentiva adopted "Care Centrix Attendance Management Guidelines" ("Attendance Guidelines") for its employees. The Attendance Guidelines outline procedures for: (1) requesting time off;
(2) documenting reasons for absences; (3) imposing disciplinary actions for unscheduled absences, late arrivals to and/or early departures from work; and (4) appealing attendance decisions of supervisors.
The Attendance Guidelines provide that "[a]ssociates [employees] who are absent, late, or leave work early without obtaining prior approval from their supervisor may be disciplined."
The Attendance Guidelines list the number of unscheduled absences within 12 months that "may" result in
disciplinary action and the "suggested" disciplinary action for those absences as follows:
NUMBER OF UNSCHEDULED ABSENCES WITHIN TWELVE MONTHS | SUGGESTED CORRECTION OR DISCIPLINARY ACTION |
Three (3) | Verbal/Coaching |
Four (4) | Written Warning/Counseling |
Five (5) | Final Written Warning/Counseling |
Six (6) | Termination |
An "unscheduled absence" occurs when an associate/employee fails to obtain approval for an absence one business day prior to the associate/employee's regular scheduled work day.
For the purpose of corrective action, the Attendance Guidelines provide that: (1) three late arrivals to work are considered an unscheduled absence; (2) three early departures from work are considered an unscheduled absence; and (3) any combination of three late arrivals to work and early departures from work equal an unscheduled absence.
Pursuant to the Attendance Guidelines, for the purpose of corrective/disciplinary action, unscheduled absences, late arrivals, and early departures from work are monitored on a rolling 12-month period. The Attendance Guidelines provide that the "rolling twelve month period" is determined by "beginning
with the most recent unscheduled absence and counting twelve consecutive months backwards."
Pursuant to the Attendance Guidelines, an employee is not written up on each single infraction. Instead, the employee is written up after an accumulation of attendance issues have occurred.
Under the Attendance Guidelines, supervisors of Gentiva are required to document the attendance of associates/employees. These records should include details of "any coaching and counseling discussions with the associate [employee] about attendance, copies of all corrective action taken and any other facts that may have a bearing on the associate's attendance."
On or about August 25, 2005, Petitioner received a copy of the Attendance Guidelines. At that time, Petitioner reviewed the guidelines and understood that adherence to those guidelines was a requirement of her employment with Gentiva.
Petitioner's Attendance Problems and Gentiva's Efforts to Assist
Throughout Petitioner's employment with Gentiva, she had problems with her punctuality and attendance at work.
Petitioner acknowledged that she had problems with attendance at work, but attributed most of the problems to the
illnesses of her three young children, two of whom suffered from asthma.
Notwithstanding the reasons for her unscheduled absences and late arrivals at work, Petitioner was expected to address her personal issues so that she could adhere to the Attendance Guidelines.
From time to time, Petitioner talked to Ms. Walsh about the personal issues she was experiencing at home, some of which contributed to her attendance and punctuality problems.
After Petitioner shared some of the problems she was having, Ms. Walsh offered and/or provided accommodations that would assist Petitioner in addressing the attendance and punctuality issues. For example, in or about January 2007, Ms. Walsh gave Petitioner paperwork for Family Medical Leave ("FML") based on her children's illnesses. Ms. Walsh believed that if the FML forms were completed and approved for
Petitioner's children, Petitioner's unscheduled absences due to her children's illnesses would not count against her. Also, in 2006, to assist Petitioner in alleviating or reducing her tardiness issue, Ms. Walsh changed Petitioner's work schedule so that her work day began later and coincided with that of Petitioner's mother, who was also employed by Gentiva.
Ms. Walsh thought this schedule change would be helpful because Petitioner usually carpooled with her mother.
Petitioner never returned the FML forms for her two children to Ms. Walsh or to anyone else at Gentiva. According to Petitioner, her children's doctor charged about $15.00 to complete each form and she could not afford to pay that service
fee.
Ms. Walsh believed that because Petitioner failed to
submit completed FML forms for her children, she was not afforded protections under the FML for her children.
Consequently, any unscheduled absence by Petitioner, even if for the unanticipated illness of Petitioner's children, would be counted against her for purposes of the Attendance Guidelines.
Corrective/Disciplinary Action Taken Against Petitioner
On or about October 6, 2005, about one month after Gentiva implemented the Attendance Guidelines, Petitioner received verbal counseling from her supervisor regarding two unscheduled absences (September 12 and 19, 2005) and three late arrivals (September 23 and 29 and October 6, 2005).
The October 6, 2005, verbal counseling was documented on a corrective counseling record form, which was signed by both Petitioner and her then supervisor, Nestor Guzman. The corrective counseling record noted that Petitioner's work with the company was excellent, that she was a valuable employee, and that the company recognized the contributions she made to the company. However, it was also noted that "our business
environment and the nature of our operations requires for [sic] employees to report and be present on their scheduled days." The corrective counseling record advised Petitioner the company could not overlook or support a poor attendance record for any employee and that failure to adhere to attendance and punctuality guidelines could result in further disciplinary action.
About six months after receiving the October 6, 2005, verbal counseling, on April 19, 2006, Petitioner received a written warning for four additional unscheduled absences (November 2, 2005, and March 23, 2006, and April 11 and 14, 2006); one late arrival (December 1, 2006); and three early departures (October 14, November 21 and December 1, 2005).
The April 19, 2006, written warning was documented in a corrective counseling record which was signed by Petitioner and her then supervisor, Nestor Guzman. The corrective counseling record recounted the October 6, 2005, verbal counseling that was given as a result of Petitioner's excessive unscheduled absences and late arrivals. It further advised Petitioner that: (1) employees are to "assume diligent responsibility for their attendance and promptness";
(2) management expects employees to "report to work on time and to maintain an acceptable attendance record" in accordance with the Attendance Guidelines; and (3) timely attendance at work is
crucial for the success of the company's business. Finally, the corrective counseling record notified Petitioner that her failure to comply with the Attendance Guidelines would result in further disciplinary action, up to, and including, termination of employment.
On May 26, 2006, Petitioner received a final written warning which documented that since receiving the written warning five weeks earlier, she had one late arrival on May 5, 2006, and one unscheduled absence on May 17, 2006. The final written warning was documented in a corrective counseling record and was signed by Petitioner and her then supervisor, Peggy Walsh.
The May 26, 2006, final written warning acknowledged that Petitioner's work with the company had been excellent, but noted that her inability to adhere to the Attendance Guidelines was overshadowing her work record. The final written warning notified Petitioner that her failure to maintain an acceptable attendance pattern will result in termination of her employment "on [her] next unscheduled absence."
On April 30, 2007, Petitioner received a final written warning for her continued attendance problems. The final written notice indicated that in the past year, Petitioner had five unscheduled absences (May 17, 2006, January 15, March 1
and 29, and April 13, 2007); two late arrivals (February 22 and
April 12, 2007); and one early departure due to illness on April 23, 2007). According to the final written warning, which was documented in a corrective counseling record, Petitioner's failure to correct her attendance issues would result in termination. Both Petitioner and her supervisor, Ms. Walsh, signed the final written warning.
In accordance with the Attendance Guidelines, the two final written warnings issued to Petitioner were based on her having multiple incidents of absences, late arrivals and/or early departures from work. In each case, Petitioner met with her supervisor and was notified that her continued failure to adhere to the Attendance Guidelines would result in her employment with Gentiva being terminated.
By signing each of the above-referenced corrective counseling records, Petitioner acknowledged that the information contained therein was discussed with her.
Each of the above-referenced corrective counseling records included a section for Petitioner, as the employee, to write comments concerning the stated infractions and the disciplinary action being imposed. Petitioner did not write comments on any of the corrective counseling records.
Incident of April 23, 2007
Petitioner reported to work on April 23, 2007, but during the work day became very sick with a stomach virus.
While at work that day, as a result of the stomach virus, Petitioner vomited six to eight times. However, Petitioner was afraid to ask for unscheduled time off, so she tried to "stick it out" by remaining at work.
Ms. Walsh was aware that Petitioner was ill on April 23, 2007, because at one point that day, she went to Petitioner's work area when Petitioner was vomiting. Upon observing the situation, Ms. Walsh suggested that Petitioner wash her face and indicated that doing so might make her feel better. Petitioner did as Ms. Walsh had suggested, but still continued to feel ill and to vomit.
On the afternoon of April 23, 2007, several Gentiva employees who worked near Petitioner's work station began to complain and were overheard saying that Petitioner should be sent home. Eventually, one employee who heard Petitioner vomiting went to Ms. Walsh and told her that Petitioner was sick and needed to go home. At that point, Ms. Walsh told Petitioner that she could go home, but that upon returning to work, she (Ms. Walsh) would have to "write [Petitioner] up."
On April 23, 2007, at or about 2:00 p.m., Petitioner left work and went home because she was still very sick. That day, Petitioner was too ill to drive herself to the hospital, but she went to the hospital on April 26, 2007, and was diagnosed with a contagious stomach virus.
Ms. Walsh knew that Petitioner was sick on April 23, 2007. Nevertheless, and despite feeling sympathy for Petitioner's situation, Ms. Walsh believed that under the Attendance Guidelines, she had no choice but to write up Petitioner for leaving work early that day.
Ms. Walsh believed that the Attendance Guidelines are to be strictly adhered to and she treated Petitioner no differently than she would have treated any other employee in a situation similar to Petitioner.
After going to the hospital, but prior to returning to work, Petitioner telephoned the company's Human Resources Office in Kansas and spoke to the vice-president of human resources, Jamie Rosenkoetter. Petitioner expressed her desire to file a complaint against Ms. Walsh for the way she had treated Petitioner on April 23, 2007, when she was ill. Petitioner's opinion was that Ms. Walsh had been "unfair" to her. Although Petitioner followed the grievance procedures in the company's handbook, no one ever contacted her about the verbal complaint she made.
When Petitioner returned to work on April 30, 2007, she was "written up" by Ms. Walsh. This action taken by
Ms. Walsh was consistent with what she had told Petitioner on April 23, 2007, prior to Petitioner's leaving work that day.
Although Petitioner disagreed with the disciplinary action taken by Ms. Walsh, she signed the April 30, 2007, corrective action report, discussed above in paragraphs 27
and 38, and wrote nothing in the comment section. According to Petitioner, she signed the form because she believed that her employment would be terminated if she refused to do so.
Petitioner gave no reason for not writing her concerns in the comment section of the subject corrective counseling.
Petitioner testified that she perceived that by
Ms. Walsh's issuing the April 30, 2007, corrective action report and engaging in other non-specified conduct toward her, is evidence that Ms. Walsh was retaliating against her.
Gentiva's Approval of Family Medical Leave
At all times relevant to this proceeding, Ernestine Ellis-Stone, Petitioner's mother, was employed by Gentiva and has been so employed for about seven years. Mrs. Ellis-Stone worked in Gentiva's patient registration department and also reported to Ms. Walsh.
In or about April or May 2006, Jerald Stone, Petitioner's father and Mrs. Ellis-Stone's husband, suffered a stroke. The stroke, along with several other medical conditions, resulted in Mr. Stone's having long-term
health-related challenges, including mobility issues.
After Mr. Stone suffered a stroke, both Petitioner and Mrs. Ellis-Stone requested that they be allowed to take FML due to Mr. Stone's illness. Gentiva approved the leave request for Petitioner and her mother.
Since Mrs. Ellis-Stone was approved for FML, Ms. Walsh has always granted her requests to take days off to care for
Mr. Stone.
Except for the one instance discussed below, Ms. Walsh has always approved Petitioner's requests to take FML in order to care for her father.
Incident of May 23, 2007
On May 23, 2007, Petitioner and Mrs. Stone were contacted at work and told that there was an emergency at Mrs. Ellis-Stone's home. After being told of the reported
emergency, the Gentiva supervisor on duty allowed Petitioner and Mrs. Ellis-Stone to leave work early so that they could check on the situation at home.
When Petitioner and Mrs. Ellis-Stone arrived at the house, law enforcement officials were surrounding the residence and attempting to get an armed man who was inside the house to surrender. Mr. Stone and Petitioner's three-year-old son were inside the house with the armed man who, at one point, threatened to take Mr. Stone's life. The standoff between the
armed man and the police officers and the U.S. Marshal's Service lasted about three hours.
Both Mr. Stone and Petitioner's three-year-old son suffered adverse physical and/or emotional reactions to the three-hour standoff described in paragraph 47. For example,
Mr. Stone was unable to take his medication during the three-hour standoff; that, along with the stress of the
incident, caused his blood pressure to go up and his diabetes to get out of control. Petitioner's son was traumatized by the incident and was particularly upset by reportedly seeing the man involved in the standoff put a gun in his mouth and threaten to kill himself.
Petitioner's May 24, 2007, Request for Leave
On the morning of May 24, 2007, the day after the standoff, Mrs. Ellis-Stone called Ms. Walsh. After telling Ms. Walsh about the standoff incident, Mrs. Ellis-Stone told
Ms. Walsh that both she (Mrs. Ellis-Stone) and Petitioner needed to take the day off to care for Mr. Stone. Ms. Walsh approved Mrs. Ellis-Stone's request to take the day off, but told her that Petitioner had to call in to request the day off. At the time, Petitioner was standing near her mother, so
Mrs. Ellis-Stone handed her the telephone.
After being handed the telephone by her mother, Petitioner told Ms. Walsh that she needed a FML day to help care
for her father. Ms. Walsh denied Petitioner's request and stated that Mrs. Ellis-Stone was the "primary" person on the FML and that she had been given the day off.
Petitioner believed that because she had been approved for FML for her father, Ms. Walsh should have allowed her to take the day off. Therefore, Petitioner persisted in requesting the day off. During that conversation, Petitioner also told
Ms. Walsh that her three-year-old son had been traumatized by the incident and was home that day because he had been unable to sleep the night of the incident. Ms. Walsh indicated she would contact Jamie Rosenkoetter, the company's vice president of human resources, and then get back with Petitioner.
On the morning of May 24, 2007, and after speaking to Petitioner, Ms. Walsh called Ms. Rosenkoetter about Petitioner's situation. Ms. Rosenkoetter, who was at the company's Phoenix location that day, returned the call later that morning. During that telephone conversation, Ms. Walsh told Ms. Rosenkoetter that "some incident" had occurred at Mrs. Ellis-Stone's house the day before. However Ms. Rosenkoetter was not given any of the details concerning the incident.
Because Petitioner was on final written warning and pursuant to the Attendance Guidelines, Ms. Rosenkoetter determined that Petitioner's employment would have to be terminated unless she reported to work that day. Based on that
determination and during the May 24, 2007, telephone conversation, Ms. Rosenkoetter directed Ms. Walsh to tell Petitioner that if she did not report to work that day, her employment would be jeopardized.
Following her discussion with Ms. Rosenkoetter, either Ms. Walsh or Ms. Rosenkoetter, in a three-way telephone call, contacted Petitioner. During this conversation, Ms. Walsh notified Petitioner that she should report to work that day
(May 24, 2007) or her employment would be terminated. Ms. Walsh also advised Petitioner that if she went in and worked part of the day, she would not be terminated. Presumably, this was because a late arrival at work was not as serious of an infraction as an unscheduled absence. Finally, Ms. Walsh told Petitioner that if she was coming to work that day, she should be there in 20 minutes. Petitioner then explained that her mother had left the house to run an errand, and she (Petitioner) could not leave her father and son home alone. Petitioner's mother had, in fact, left the house to run an errand.
Due to Mr. Stone's medical condition and his limited mobility on May 24, 2007, Petitioner believed the she could not leave her father home alone. Accordingly, Petitioner did not go to work on May 24, 2007.
Pursuant to the Attendance Guidelines, Petitioner's employment with Gentiva was terminated for her unscheduled and unexcused absence on May 24, 2007.
After Petitioner's employment with Gentiva was terminated, she filed a Complaint with the U.S. Department of Labor alleging that her termination violated the FML Act. As part of the resolution of that claim, Petitioner was paid an annual salary ($29,000.00) and received $30,000.00 for payment of medical bills.
The record in this case is devoid of any evidence that Petitioner suffered any damages as a result of Respondent's terminating her employment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
Subsection 760.10(1), Florida Statutes (2007), states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of handicap/disability.
Florida courts have recognized that actions for discrimination on the basis of disability are analyzed under the same framework as claims under the American With Disabilities
Act ("ADA"), 42 U.S.C. Section 12101, et seq. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000).
Associational Discrimination Claim
Under the ADA, it is unlawful for employers to discriminate against a "qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a).
The ADA definition of "discriminate" includes "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4).
The ADA defines a "qualified individual" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions" of the job she holds. 42 U.S.C. § 12111(8).
The burden of proof in discrimination cases, such as this one, involving circumstantial evidence is set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under McDonnell, the claimant must first establish a prima facie case of associational discrimination. If the claimant cannot meet each element, his/her claim must fail. However, if the
claimant establishes a prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the adverse employment action. If the employer offers a non- discriminatory reason for the adverse action, the burden shifts back to the claimant/petitioner to prove, by a preponderance of evidence, that discriminatory intent motivated the employer's action.
In order to establish a prima facie case of associational disability discrimination, Petitioner must show that: (1) she was subjected to an adverse employment action;
(2) she was qualified for the job at the time; (3) she was known by Respondent at the time of the adverse employment action to have a relative with a disability; and (4) the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the relative was a determining factor in Respondent's decision. Hilburn v. Murata Electronics North America, 181 F.3d 1220, 1230-31 (11th Cir. 1999).
The evidence establishes and there is no dispute that:
Petitioner was terminated from her employment with Gentiva;
Petitioner was qualified for the job at the time her employment was terminated; and (3) at the time Petitioner's employment was terminated, her supervisor at Gentiva knew that Petitioner had a relative with a disability. However, no
reasonable inference can be made that Petitioner's father's disability was a determining factor in Gentiva's decision to terminate Petitioner's employment. Accordingly, Petitioner has failed to meet the fourth element necessary to establish a prima
facie case of associational discrimination.
Having failed to establish all four of the requisite elements set forth above, Petitioner did not establish a prima facie case of associational discrimination.
If Petitioner had established a prima facie case, the burden to go forward would shift to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. McDonnell, 411 U.S. at 802; and Department of
Corrections v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1999). In this case, Gentiva established that Petitioner's employment was terminated as a result of her failure to adhere to the company's Attendance Guidelines. That explanation, which is supported by clear and undisputed evidence, is a legitimate, non-discriminatory explanation for termination of Petitioner's employment.
Petitioner clearly disagrees with Gentiva's decision to terminate her employment. However, it is beyond the scope of this case for the undersigned to determine whether the decision to terminate Petitioner's employment, after learning the various reasons for her unscheduled absences, was harsh or unfair. What
is relevant to this analysis is that Respondent's actions were not based upon unlawful discrimination. See Damon v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)("We are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision."); and Department of Corrections v. Chandler, 582
So. 2d 1183, 1187 (Fla. 1st DCA 1991), quoting from Nix V. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.
1984) ("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.")
For the reasons set forth above, Petitioner failed to establish a prima facie case of associational discrimination and, therefore, did not meet her burden of proof. Accordingly, her claim of associational disability discrimination should be dismissed.
Retaliation Claim
42 U.S.C. Section 12203(a) prohibits retaliation and makes it unlawful for an employer to "discriminate against an employee because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under the [ADA].
To establish a prima facie case of retaliation, an employee must show that: (1) he/she engaged in a statutorily protected expression; (2) he/she was the subject of an adverse employment action; and (3) there was a causal link between the protected expression and the adverse action. Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322, 1337 (11th Cir. 1999); and Rocky v. Columbia Lawnwood Reg. Medical Center,
54 F.Supp. 2d 1159, 1165 (S.D. Fla. 1999).
Petitioner contends that on two separate occasions, she engaged protected expressions that resulted in adverse employment actions.
In the first instance, Petitioner asserts that she complained to Ms. Rosenkoetter about the way that Ms. Walsh had treated her (Petitioner) when she was sick at work on April 23, 2007. Specifically, Petitioner claims that Ms. Walsh was "unfair." Petitioner further claims, and the evidence shows, that as a result of Petitioner's leaving work early, disciplinary action (a final written warning) was taken against her.
Applying the above-standard, it is concluded that Petitioner failed to prove all three elements necessary to establish a prima facie case of retaliation.
As to the first element, Petitioner failed to show that the verbal complaint she made to Ms. Rosenkoetter is a
protected expression under the ADA. The second element was established in that there was adverse employment action against Petitioner (i.e., she received a written warning a few days after making the verbal complaint).
For the purpose of analysis and, assuming for the sake of argument that Petitioner's verbal complaint is a protected expression under ADA, Petitioner's claim would still fail. The reason is that Petitioner did not establish a causal link between her verbal complaint and the adverse employment action. Instead, the evidence established that on April 23, 2007, about a week before Petitioner made her complaint, Petitioner's supervisor told her she would have to "write [her] up" if she left work early. The evidence also showed that Petitioner left work and her supervisor took disciplinary action against Petitioner as she had previously notified Petitioner.
In the second instance, Petitioner contends that she was retaliated against for requesting a day off under FML in order to care for her father. Applying the above-referenced standard, Petitioner must first establish that her request for leave constitutes protected expression under the ADA. No such showing has been made, nor has any legal authority been cited for this proposition.
In order to establish a prima facie case of retaliation, all three elements stated in paragraph 73 must be
established. Having failed to establish that her leave request was protected expression, Petitioner's claim of retaliation based thereon, has not been proven.
For the reasons as stated above, Petitioner failed to prove a prima facie case of retaliation. Therefore, her claims of retaliation must fail.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 30th day of September, 2009, in Tallahassee, Leon County, Florida.
S
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2009.
COPIES FURNISHED:
Denise Crawford, Agency Clerk
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Le'Tanya Stone
3607 East 33rd Avenue Tampa, Florida 33610
Patrick F. Martin, Esquire Littler Mendelson, P.C.
Two South Biscayne Boulevard Miami, Florida 33131
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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 15, 2009 | Agency Final Order | |
| Sep. 30, 2009 | Recommended Order | Petitioner's employment was terminated, not because of her association with a relative who had a disability, but due to her violation of attendance guidelines. |
