STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLADYS M. NORRIS, )

)

Petitioner, )

)

vs. ) Case No. 09-6130

)

UNIVERSITY HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings, on

February 25, 2010, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sheldon Engelhard, Esquire

7369 Woodmont Court

Boca Raton, Florida 33434

For Respondent: Alexander D. del Russo, Esquire Carlton Fields

Post Office Box 150

West Palm Beach, Florida 33402-0150

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.

PRELIMINARY STATEMENT

On March 18, 2009, Petitioner filed a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC), alleging that she had been the victim of age and disability-based discrimination, as well as retaliation for having engaged in protected activity, at the hands her former employer, University Hospital (University). The following "particulars" were given in the charge:

I am [a] 77-year old female who is a Qualified individual with a Disability. I was subjected to disciplinary action, retaliation and constructively discharged from my position as Front [D]esk Registration.

I was discipline[d] on or about November 2007 for having allegedly poor work performance, but no response to such allegations were received, even after I requested such. I was put on probation and my work schedule was changed from evenings to daytime. I was put on a 3 day unpaid suspension for having asked a co-worker a question. On September 18, 2008, all headsets were returned to Verizon, and when I requested . . . a reasonable accommodation, no response was given. I was forced to resign as a result of the continuous denial of the reasonable accommodation request.

I believe I have been discriminated against due to my age, retaliation and disability, in violation of The Age Discrimination in Employment Act of 1967, and the American[s] with Disabilities Act (ADAAA)[2].

The EEOC referred Petitioner's charge of discrimination to the Florida Commission on Human Relations (FCHR) on April 22, 2009. On September 30, 2009, following the completion of its investigation of the charge, the FCHR issued a Notice of Determination: No Cause, advising that a determination had been made that "there [was] no reasonable cause to believe that an unlawful employment practice ha[d] occurred."

Petitioner, on or about November 4, 2009, filed with the FCHR a Petition for Relief, claiming that University had "violated the Florida Civil Rights Act of 1992, As Amended," in the following "specifically described" manner:

Failed to respond to or provide for request for reasonable accommodation when notified of medical condition.

Retaliated after using leave requested. Discriminated based on age of 76-years-old.

The petition contained the following enumeration of "disputed issues of material fact" and "ultimate facts alleged & entitlement to relief":

DISPUTED ISSUES OF MATERIAL FACT

1. Gladys Norris worked with no headset made available to her from 9/18/08 until 10/26/08.

2. Gladys was not given an alternate headset as stated by the responde[nt] nor was any given to her or made available to her. (#23)

   
   

   *Email requests and manager email replies to other coworkers confirms this. *see attached emails**

   
   

3. Statement #22 is incorrect and is a false statement- Gladys [n]ever had such conversation.[3]

   
   

4. Gladys documented requests for a reasonable accommodation to her supervisor (Cathy Hudson) and manager (Gloria Gonzalez) for reason of a medical condition.

   **Schmidt v. Safeway, Inc. "statute does not require plaintiff to speak any magic words… the employee need not mention ADA or the term 'reasonable accommodation'"

   
   

5. Supervisor and manager failed to initiate or to participate in an informal dialogue with Gladys Norris after receiving requests for reasonable accommodation. No questions were ever asked of Gladys about her condition or limitations. ** Hendricks- Robinson v. Excel Corp., 154 F.3d 685, 700**

   
   

6. Burden of proof had shifted to employer.

   ** U.S. Airways v. Barnett, 535 U.S.**

   
   

7. Employer did not respond expeditiously and act promptly to the request for reasonable accommodation as lawfully obligated. ** Dalton v. Subaru-Izuzu Auto**

   
   

8. Employer ignored repeated requests for headset even after being notified of doctor's diagnosis.

   
   

9. Physician's statement addendum notation on the Medical Certification Form states, "At the time of Gladys Norris's visit October 2008, her ability to work as she

   expressed to me (without a headset) was substantially limited."

   
   

   Definition of disability under SEC. 12102 (Section 3)

   
   

   4.D. An impairment that is episodic or is in remission is a disability if it would substantially limit a major life activity when active (such as performing manual tasks and working).[4]

   
   

10. Gladys Norris requested a leave for surgery July 23, 2008. She was granted the reasonable accommodation of leave. She returned August 24, 2008.

    
    

11. She was then subject to retaliation for taking the leave and harassment by having her schedule changed to 3 consecutive overnight weekends 11pm-8am never scheduled before or after. It is unlawful to penalize an[] employee for taking a reasonable accommodation.

    
    

12. Affidavit for Gloria Cessor was not read as she clearly stated:

    
    

    "University had made 6 of us leave for different reasons. We were all forced out in one way or another. We always used headsets-8 hours picking up a phone is impossible and will injure anyone."

    
    

13. Several employees felt "compelled to resign due to hostile working environment" and will resend affidavits stating so.

    
    

14. Affidavit of Elle Dingus was not listed as received and was sent to FCHR and received with confirmation.

    
    

15. Employment Dispute Resolution Process (Policy # HR-2006-416) was not followed by University Hospital. Many formal complaints were documented that went unanswered.

16. Discrimination toward Gladys Norris being given disciplinary action for not being signed on (no problem in workflow), but none for Miriam Reyes who was on shift and signed off before Gladys was signed on. This violates PBX Policy PBX-2008-NEW attached.

    
    

17. University Hospital failed to follow Performance Appraisal policy #HR-1978-049 section III.C. "Employees will receive an evaluation at least annually…"

    Gladys Norris was to be reviewed July 10, 2008 before her leave for surgery. As of October 26, 2008 she was never informed of a review to be conducted of her. Other employees were reviewed within policy guidelines. Section III.J. "Performance Appraisal will be considered delinquent if not completed within 60 days of appraisal review date."

    
    

18. List of PBX Operators sent by University Hospital employed from 01/01/07- Current. The list purposely omitted three key operators who all left the PBX department due to its HOSTILE WORK ENVIRONMENT

Debbie Murnane Gloria Cessor Lexi Molitor

ULTIMATE FACTS ALLEGED & ENTITLEMENT TO RELIEF

Petitioner was not offered accommodation to which she was entitled. She should be reinstated and given reasonable pay for the period of time she has been treated unfairly, less the money she has received from her present position.

On November 6, 2009, the FCHR referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of

an administrative law judge "to conduct all necessary proceedings required under the law and submit recommended findings to the [FCHR]."

As noted above, the final hearing in this case was held on February 25, 2010.5 Four witnesses testified at the hearing: Eleanor Dingus, Petitioner, Gloria Gonzalez, and Jennifer Lindsey. In addition, 23 exhibits (Petitioner's Exhibits 3, 4,

6, 8 through 10, 13, 14, 17 through 24, 26, and 27, and

Respondent's Exhibits 6, 8, 17, 24, and 25) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned, on the record, set the deadline for filing proposed recommended orders at 20 days from the date of the filing of the hearing transcript with DOAH.

The Transcript of the final hearing (consisting of one volume) was filed with DOAH on March 4, 2010. Accordingly, proposed recommended orders had to be filed no later than March 24, 2010 (as the parties were advised by Order issued March 9, 2010).

University and Petitioner timely filed their Proposed Recommended Orders on March 19, 2010, and March 22, 2010, respectively.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital.

2. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6

3. As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift.

4. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus.

5. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard."

6. Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since.

7. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX

   Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators.

8. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up."

9. Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator.

10. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on

    July 10, 2007. The appraisal contained the following "Evaluation Summary":

    Evaluation Summary Strengths/accomplishments:

    Gladys is a good operator.

    Very responsible and always on time.

    Areas for growth:

    
    

    Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept.

    
    

    This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance."

11. Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous.

12. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed.

13. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues.

14. Petitioner "would sometimes get upset" during these counseling sessions.

15. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by

    Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez.

16. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager.

17. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action.

18. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced."

19. On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice

    of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner."

20. The following "details of the . . . infraction" were given in the notice:

    Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes.

    
    

21. The notice also contained the following "Corrective Action Plan":

    [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement.

    
    

22. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred."

23. The notice had been presented to Petitioner by

    
    

    Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present.

24. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices."

25. During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem.

26. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time."

27. Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position.

28. Some time after the May 20, 2008, meeting,

    
    

    Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported

    being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008.

29. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her.

30. The matter was brought to the attention to

    
    

    Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows:

    1. POLICY

       
       

       University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated.

       
       

    2. PROCEDURE

       
       

       A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to

       display common courtesy and engage in safe and appropriate behavior at all times.

       
       

       * * *

       
       

       1. The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited.

          
          

          * * *

          
          

          1. Making threatening remarks;

             
             

          2. Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress;

          
          

          * * *

          
          

       2. Reporting Procedures

       
       

       1. Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them.

          
          

       2. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to:

       
       

       * * *

       
       

       1. Displaying overt signs of extreme anger, hostility, resentment or stress;

          
          

       2. Making threatening remarks;

       
       

       * * *

       
       

       e. Display of irrational or inappropriate behavior.

       
       

       * * *

       
       

31. During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows:

    This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up."

    
    

    Miriam signed off the switchboard before checking if I was signed on.

    
    

    I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available.

    
    

    I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old.

    Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate.

    
    

    I was not asked about the situation. Rather I was interrogated.

    
    

    I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation.

    
    

    Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008.

    
    

    This claim is unwarranted and causes undue financial hardship.

    
    

32. Following the completion of her investigation,

    
    

    Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked).

33. Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008:

    After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance.

    There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way.

    
    

    In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action.

    
    

    In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference.

    
    

    Gladys will be paid for the days that she was suspended in order to conduct this investigation.

    
    

34. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows:

    Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard.

    
    

35. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows:

    * * *

    
    

    . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now.

    
    

36. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period."

37. When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked."

38. Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from

    11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift.

39. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is."

40. Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard.

41. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume:

    Subject: Pavilion[8] Calls

    Ladies,

    
    

    Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221.

    Please make sure that you go over all Ext and Pavilion info.

    
    

    Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s].

    
    

    Also make sure that you know how to page all Pavilion calls over head.

    
    

    So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately.

    
    

    Please let me know if you have any further questions.

    
    

42. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting.

43. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone,"

    instead of a headset, to answer calls coming in to University's switchboard.

44. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks.

45. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University.

46. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned.

47. During this period, she made her supervisors aware that she was in pain.

48. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any.

49. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail:

    Dear Cathy,

    
    

    Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved.

    
    

    Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon.

    
    

50. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied:

    Re: Waiting for an e-mail answer Hello Gigi,

    I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week.

    
    

51. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work

    at University on October 26, 2008, but she did not stay her entire shift.

52. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University.

    At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail:

    I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital.

    
    

    I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign.

    
    

    Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered.

    
    

53. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset.

54. To date, University has not filled the position from which Petitioner resigned.

    CONCLUSIONS OF LAW

    
    

55. The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes.

56. "The Act, as amended, was [generally] patterned after Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting [provisions of] Title VII and the ADEA is [therefore] applicable to cases [involving counterpart provisions of] the Florida Act." Florida State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); see also Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000)("The [Act's] stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964."); Valenzuela v. GlobeGround North America, LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009)("Because the FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17, we look to federal case law."); City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008)("Federal case law interpreting Title VII and the ADEA applies to cases arising under the [Act]."); and School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981)("Florida's job discrimination statute is

    patterned on Title VII of the Civil Rights Act of 1964, 42

    
    

    U.S.C. § 2000e-2.").

    
    

57. In addition, "[c]ourts construe the [Act's disability discrimination provisions] in conformity with the federal American[s] with Disabilities Act (ADA)." McCaw Cellular Communications v. Kwiatek, 763 So. 2d 1063, 1065 (Fla. 4th DCA 1999); see also Byrd v. BT Foods, Inc., No. 4D07-5065, 2009 Fla. App. LEXIS 18431 *12 (Fla. 4th DCA December 2, 2009)("[C]ourts construe [the Act] in conformity with Title VII and the Americans with Disabilities Act (ADA)."); Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA 2007)("As applied to discrimination based on a handicap, the FCRA is construed in conformity with the federal Americans with Disabilities Act (ADA)."); and Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 314 (Fla. 2d DCA 2004)("Claims under the Florida Civil Rights Act are analyzed in the same manner as claims under the Americans with Disabilities Act."). "Significant changes to the ADA took effect on January 1, 2009," after the alleged events giving rise to Petitioner's instant claim of disability discrimination.

    Shin v. University of Maryland Medical System Corp., No. 09- 1126, 2010 U.S. App. LEXIS 5177 **18-19, n.14 (4th Cir.

    March 11, 2010). Because these changes have prospective effect only12 and, in any event, similar changes have not been made to the Act, it is the pre-amendment, not the post-amendment,

    version of the ADA13 (and how it has been judicially construed) that should be looked to in the instant case for guidance in determining whether Petitioner was a victim of disability discrimination under the Act, as alleged in her charge.

58. Among other things, the Act makes certain acts prohibited "unlawful employment practices," including those described in Section 760.10(1)(a) and (7), Florida Statutes, which provides as follows:

    1. It is an unlawful employment practice for an employer:[14]

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

    * * *

    
    

    (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

59. The Act gives the FCHR, if it finds following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that an "unlawful employment

    practice" has occurred, the authority to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay."15 §§ 760.10 and 760.11(6), Fla. Stat.

60. To obtain such relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR, the EEOC, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70- 1601.80."16 § 760.11(1), Fla. Stat. This 365-day period within which a complaint must be filed is a "limitations period" that can be "be equitably tolled, but . . . only [based on the] acts or circumstances . . . enumerated in section 95.051," Florida Statutes.17 Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997).

61. "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete act starts a new clock for filing charges alleging that act." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). "Discrete discriminatory acts" include disciplinary action, denial of a request for a reasonable accommodation, and constructive

    discharge.18 See Smith v. Township of East Greenwich, 344 Fed. Appx. 740, 744 (3d Cir. 2009)("The District Court properly rejected Smith's continuing violation theory because each alleged act of discrimination was a discrete employment act -- either a failure to promote or a disciplinary action."); Chapman v. Carmike Cinemas, 307 Fed. Appx. 164, 174 (10th Cir.

    2009)("[W]hen the constructive discharge is complete -- i.e., when the employee resigns -- the discharge is most akin to a wrongful discharge by the employer,19 which is a discrete and identifiable act."); Wilderson v. Paulson, No. 06-5102, 2007

    U.S. App. LEXIS 9964 *4 (D.C. Cir. April 24, 2007)("A denial of a request for a reasonable accommodation is a discrete act under Morgan."); Elmenayer v. ABF Freight Systems, 318 F.3d 130, 134-

    135 (2d Cir. 2003)("[A]n employer's rejection of an employee's proposed accommodation for religious practices does not give rise to a continuing violation. Rather, the rejection is the sort of 'discrete act' that must be the subject of a complaint to the EEOC within 300 days."); Diefenderfer v. Peters, No. C08- 958Z, 2009 U.S. Dist. LEXIS 60595 *13 (W.D. Wash. June 29, 2009)("Plaintiff's alleged constructive discharge constitutes a discrete act that occurred on the date of her resignation."); and Hall v. Scotts Co., No. 2:05-cv-732, 2005 U.S. Dist. LEXIS 38396 *15 (S.D. Ohio December 21, 2005)("Scotts' initial refusal

    to approve Hall's requested accommodation was a discrete act necessitating the filing of a timely EEOC charge.").

62. "[B]ecause nothing in the Uniform Rules of Procedure requires respondents to plead affirmative defenses, [the] failure to plead the statute of limitations [does] not result in a waiver of the defense." Leneve Plaisime v. Marriott Key Largo Resort, No. 02-2183, 2003 Fla. Div. Adm. Hear. LEXIS 237 *11 (Fla. DOAH February 14, 2003)(Recommended Order). Regardless of whether this defense is pled, the FCHR may not "find that events occurring outside of the 365-day filing period are 'actionable' unlawful employment practices." Leneve Plaisime v. Marriott Key Largo Resort, No. 98-3179, slip. op. 2 (FCHR November 21, 2003)(Final Order).

63. "[T]o prevent circumvention of the [FCHR's] investigatory and conciliatory role, only those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the complainant. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).

64. In the instant case, Petitioner alleged in the charge of discrimination she filed on March 18, 2009, that her former employer, University, had discriminated against her on the basis of her age and disability and, in addition, had retaliated

    against her for her having engaged in protected activity when it "discipline[d]" her in November 2007 "for having allegedly poor work performance" by placing her on probation and changing her work schedule; when it suspended her without pay in May 2008 "for having asked a co-worker a question"; and when it failed to grant her "request[] for a reasonable accommodation" after her old headset was taken away in September 2008 and thereby "forced [her] to resign."

65. Petitioner had the burden of proving, at the administrative hearing held in this case, that not only was she the victim of the discriminatory and retaliatory action alleged in her charge, but also that such action occurred within the statutorily prescribed 365-day "limitations period" or, in the alternative, that circumstances exist justifying the tolling of this period. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."'); Florida Department of Health and Rehabilitative Services v. Career Service Commission,

    289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"); and Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007)("[T]he obligation to

    demonstrate timeliness in filing a charge is a condition precedent to suit and thus a burden for plaintiffs to carry.").

66. To prove age or disability-based disparate treatment discrimination in violation of Section 760.10(1)(a), Florida Statutes, a complainant must establish that there was "adverse employment action" and that such action was the product of discriminatory intent (either age-based, in the case of an age discrimination claim, or disability-based, in the case of a disability discrimination claim). See Ricci v. DeStefano, 129

    S. Ct. 2658, 2672 (2009)("A disparate-treatment plaintiff must establish 'that the defendant had a discriminatory intent or motive' for taking a job-related action."); and Davis v. Town of

    Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001)("Title VII prohibits discrimination with respect to an employee's 'compensation, terms, conditions, or privileges of employment.'

    42 U.S.C. § 2000e-2 (a). Courts have uniformly read this language to require a plaintiff suing under § 2000e-2(a) to establish, as part of his prima facie case, that he suffered so- called 'adverse employment action.'").

67. To constitute an "adverse employment action," the "employer's action must impact the 'terms, conditions, or privileges' of the [complainant's] job in a real and demonstrable way. . . . [T]he asserted impact cannot be speculative and must at least have a tangible adverse effect on

    the [complainant's] employment. . . . [T]herefore . . . to prove adverse employment action . . . , an employee must show a serious and material change in the terms, conditions, or privileges of employment. Moreover, the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Town of Lake Park, 245 F.3d at 1239. "[N]ot everything that makes an employee unhappy is an actionable adverse action." Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) Acts that have been held not to constitute "adverse employment actions" include issuing "formal criticisms or reprimands that do not lead to a change in compensation, responsibilities, or other benefits" (Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)); imposing "a brief period of probation" (Cornelius v. City of Columbia, 663 F. Supp. 2d 471, 477 (D.

    S.C. 2009)); making a temporary change in an employee's work schedule (Sellers v. United States Department of Defense, 654 F. Supp. 2d 61, 97 (D. R.I. 2009)); "plac[ing] [] an employee on paid administrative leave pending the conclusion of an investigation" (Nichols v. Southern Illinois University- Edwardsville, 510 F.3d 772, 786 (7th Cir. 2007)); "suspend[ding] [an employee] with pay pending a prompt investigation into allegations of wrong-doing" (Solomon v. Philadelphia Newspapers,

    Inc., No. 05-05326, 2008 U.S. Dist. LEXIS 41978 *49 (E.D. Pa.

    
    

    May 21, 2008)); giving an employee a "[n]egative performance evaluation[], standing alone" (Lucas v. W. W. Grainger, Inc.,

    257 F.3d 1249, 1261 (11th Cir. 2001)); and merely making "derogatory comments" about an employee (Lewis v. UPS, Inc, 252 Fed. Appx. 806, 808 (9th Cir. 2007)).

68. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001); see also United States Postal Service Board of Governors v. Aikens, 460

    U.S. 711, 714 (1983)("As in any lawsuit, the plaintiff [in a Title VII action] may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves.").

69. "Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, slip op. at 15 n.9 (Fla. DOAH February 19, 2003)(Recommended Order); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)("Direct

    evidence is 'evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.'"). "If the [complainant] offers direct evidence and the trier of fact accepts that

    evidence, then the [complainant] has proven discrimination." Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

70. "[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor. . . .

    If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).

    Likewise, a statement "that is subject to more than one interpretation . . . does not constitute direct evidence." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).

71. "[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).

72. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community

    Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

    
    

    207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to 'articulate' a legitimate, non-discriminatory reason for its action.[20] If the employer successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld, 168 F.3d at 1267 (citations omitted).

73. "The analysis of pretext focuses only on what the decisionmaker, and not anyone else, sincerely believed." Little v. Illinois Department of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004); see also Valenzuela, 18 So. 3d at 26 ("'The inquiry into pretext centers upon the employer's beliefs, and not the employee's own perceptions of his performance.' Where the employer produces evidence showing poor performance, 'an employee's assertions of [her] own good performance are insufficient to defeat summary judgment, in the absence of other evidence.'")(citation omitted); Stockwell v. City of Harvey, No. 09-2355, 2010 U.S. App. LEXIS 5277 **11-12 (7th Cir. March 12, 2010)("[E]ven if the business decision was unreasonable, pretext

    does not exist if the decisionmaker honestly believed the nondiscriminatory reason."); Schaffner v. Glencoe Park District,

    256 F.3d 616, 622 (7th Cir. 2001)("[T]he issue is not whether Schaffner worked well with others, but whether the Park District honestly believed that she did not. In order to rebut the Park District's articulated reason, Schaffner must present evidence that it did not believe its own assessment. The

    affidavits of parents and of Schaffner's coworkers simply do not contradict whether the Park District honestly believed Schaffner worked well with others. . . . Because Schaffner did not present any evidence to contradict the Park District's honest, albeit possibly mistaken belief (as opposed to the underlying truth of that belief), she may not overcome the Park District's second articulated reason for not promoting her."); Smith v.

    Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)("Smith, of course, testified that he had versatility, and that his competence as an analyst was not confined to the field of logistics. Smith's perception of himself, however, is not relevant. It is the perception of the decision maker which is relevant."); and Breunlin v. Village of Oak Park, No. 07 C 4627, 2008 U.S. Dist. LEXIS 34924 **11-12 (N.D. Ill. April 29, 2008)("What Breunlin supposedly believed is irrelevant to demonstrating that the Village's proffered reason for Breunlin's termination--the Village Manager's lack of confidence in her abilities--is not

    pretextual. The only relevant inquiry is whether the employer (the Village) honestly believed the reason it offers.").

74. "Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the [complainant]." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Byrd, 948 So. 2d at 927 ("The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times."); and Brand v. Florida Power Corp., 633 So. 2d 504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant satisfies its burden of production showing legitimate, nondiscriminatory reasons for the action taken is immaterial insofar as the ultimate burden of persuasion is concerned, which remains with the plaintiff.").

75. Where the administrative law judge does not halt the proceedings "for lack of a prima facie case and the action has been fully tried (as in the instant case), it is no longer relevant whether the [complainant] actually established a prima facie case. At that point, the only relevant inquiry is the ultimate, factual issue of intentional discrimination. . . .

    [W]hether or not [the complainant] actually established a prima facie case is relevant only in the sense that a prima facie case constitutes some circumstantial evidence of intentional

    discrimination." Green v. School Board of Hillsborough County,

    
    

    25 F.3d 974, 978 (11th Cir. 1994)(citation omitted); see also Aikens, 460 U.S. at 713-715 ("Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non. . . . [W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection [as a candidate for promotion], the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption 'drops from the case,' and 'the factual inquiry proceeds to a new level of specificity.' After Aikens presented his evidence to the District Court in this case, the Postal Service's witnesses testified that he was not promoted because he had turned down several lateral transfers that would have broadened his Postal Service experience. The District Court was then in a position to decide the ultimate factual issue in the case. . . . Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no

    longer relevant. The district court has before it all the evidence it needs to decide whether 'the defendant intentionally discriminated against the plaintiff.'")(citation omitted); Beaver v. Rayonier, Inc., 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter, Rayonier argues it is entitled to judgment as a matter of law because Beaver failed to establish a prima facie case. That argument, however, comes too late. Because Rayonier failed to persuade the district court to dismiss the action for lack of a prima facie case and proceeded to put on evidence of a non-discriminatory reason--i.e., an economically induced RIF-- for terminating Beaver, Rayonier's attempt to persuade us to revisit whether Beaver established a prima facie case is foreclosed by binding precedent."); and Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed his attack on the trial court's findings largely in terms of whether the plaintiff made out a prima facie case of discrimination. We are mindful, however, of the Supreme Court's admonition that when a disparate treatment case is fully tried, as this one was, both the trial and the appellate courts should proceed directly to the 'ultimate question' in the case: 'whether the defendant intentionally discriminated against the plaintiff.'").

76. While disparate treatment disability discrimination requires a showing of intentional discrimination, disability

    discrimination based upon a employer's failure to provide an employee with a known "handicap" or disability a reasonable accommodation21 does not. See Nadler v. Harvey, No. 06-12692, 2007 U.S. App. LEXIS 20272 **10-11 (11th Cir. August 24,

    2007)("A plaintiff may prove discrimination in two ways, disparate treatment and a failure to make a reasonable accommodation. . . . Disparate treatment involves discriminatory animus or intent and occurs when a disabled individual is treated differently than a non-disabled or less disabled individual because of his disability. By contrast, a failure to make reasonable accommodation claim requires no animus and occurs when a covered entity fails to fulfill its affirmative duty to 'make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability' without demonstrating that 'the accommodation would impose an undue hardship on the operation of the business.' Thus, while disparate treatment claims are concerned with policing employers' actions based on invidious discriminatory intent, '[t]he reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.'")(citations omitted); Wright v. Hospital Authority of Houston County, No. 5:07-CV-281 (CAR), 2009 U.S. Dist. LEXIS 7504 *18 (M.D. Ga. February 2,

    2009)("Unlike other types of discrimination claims, however, a 'failure to accommodate' claim under the ADA does not require a showing of discriminatory intent."); and Jones v. Georgia Department of Corrections, No. 1:07-CV-1228-RLV, 2008 U.S. Dist. LEXIS 22142 **14-15 (N.D. Ga. March 18, 2008)("A discrimination claim based on a failure to provide reasonable accommodations, however, is not concerned with an employer's discriminatory intent because the ADA requires an employer to provide reasonable accommodations. A failure to do so is a per se violation of the ADA, regardless of the offending employer's intentions. In other words, a claim that an employer failed to perform a statutory duty, such as the ADA's requirement to provide reasonable accommodations to qualified employees, does not involve a determination of whether that employer acted, or failed to act, with discriminatory intent.").

77. To prevail on a disability discrimination claim, be it based upon alleged disparate treatment or an alleged failure to provide a reasonable accommodation, a complainant must prove that, at the time in question, (s)he had a "handicap," as that term is used in the Act. The Act "does not define the term "'handicap.' We therefore look to the ADA's definition of a 'disability.' The ADA defines a 'disability' as 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual[;] a record of such

    impairment; or being regarded as having such an impairment.'[22] 'Major life activities' include 'functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.'"Byrd, 948 So. 2d at 926 (citations omitted).

78. "The term 'substantially limits' means '[u]nable to perform a major life activity that the average person in the general population can perform' or '[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner and duration under which the average person in the general population can perform that same major life activity.'" Lenard v. A.L.P.H.A. "A Beginning", Inc., 945 So. 2d 618, 621 (Fla. 2d DCA 2006). "Factors to consider when determining whether an individual is 'substantially limited' include: 1) 'the nature and severity of the impairment'; 2) 'the duration or expected duration of the impairment'; and 3) 'the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.' . . . An impairment's minor interference in major life activities does not qualify as a disability." Wimberly v. Securities Technology Group, Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004). "The[] [foregoing] factors indicate that a temporary impairment, such as recuperation from surgery, will generally

    not qualify as a disability under the ADA. An impairment simply cannot be a substantial limitation on a major life activity if it is expected to improve in a relatively short period of time." Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002)(citation omitted); see also Rinehimer v. Cemcolift,

    292 F.3d 375, 380 (3d Cir. 2002)("[A] temporary, non-chronic impairment of short duration is not a disability covered by the ADA."); Sanders v. Arneson Products, 91 F.3d 1351, 1354 (9th Cir. 1996)("Sanders' temporary psychological impairment, from December 19, 1992 to April 5, 1993, with no residual effects after April 5, 1993, was not of sufficient duration to fall within the protections of the ADA as a disability."); and Danyluk-Coyle v. St. Mary's Medical Center, No. 00-5943, 2001

    U.S. Dist. LEXIS 24574 *5 (E.D. Pa. April 5, 2001)("[P]laintiff herself alleges that her impairment began in August of 1999 when she fractured her ankle and began a period of recuperation.

    Only four months later, on December 20, 1999, plaintiff was authorized by her doctor to return to work on December 27, 1999, 'without any restrictions.' During the four month period, plaintiff elected to take leave under the Federal Medical Leave Act (FMLA) and received Short Term Disability benefits. As plaintiff offers no substantial or persuasive evidence that plaintiff's fractured ankle was anything more than a temporary, non-chronic impairment, we find as a matter of law that

    plaintiff was not actually disabled within the meaning of the ADA.").

79. "When the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at a minimum, that [complainants] allege [and prove] they are unable to work in a broad class of jobs. [They] must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton v. United Air Lines, 527 U.S. 471, 491-92 (1999); see also Lenard, 945 So. 2d at 623 ("To be substantially limited in the major life activity of working, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. ").

80. In addition to accusing University of age and disability discrimination (in violation of Section 760.10(1)(a), Florida Statutes), Petitioner has alleged that University engaged in retaliation prohibited by Section 760.10(7), Florida Statutes. To establish a violation of Section 760.10(7), a complainant must show, as a threshold matter, that he or she engaged in activity protected by Section 760.10, Florida

    Statutes (by having "opposed any practice which is an unlawful employment practice under this section" or by having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section").

81. Such protected activity includes an employee's requesting a reasonable accommodation for a "handicap," provided that, at the time of the request, the employee was actually "handicap[ped]" or had a good faith, objectively reasonable belief that (s)he was. See Tabatchnik v. Continental Airlines,

    262 Fed. Appx. 674, 677 (5th Cir. 2008)("Because Tabatchnik has not shown that he had a good faith belief that he was disabled or perceived as disabled, his request for an accommodation cannot be considered protected by the ADA."); Freadman v. Metropolitan Property and Casualty Insurance Co., 484 F.3d 91,

    106 (1st Cir. 2007)("Requesting an accommodation is protected conduct for purposes of the ADA's retaliation provision."); Williams v. Philadelphia Housing Authority Police Department,

    380 F.3d 751, 759 (3d Cir. 2004)("Unlike a claim for discrimination under the ADA, an ADA retaliation claim based upon an employee having requested an accommodation does not require that a plaintiff show that he or she is 'disabled' within the meaning of the ADA. 'The right to request an accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC, and we have

    already explained that the ADA protects one who engages in the latter activity without regard to whether the complainant is disabled.' Thus, as opposed to showing disability, a plaintiff need only show that she had a reasonable, good faith belief that she was entitled to request the reasonable accommodation she requested.")(citation omitted); Standard v. A.B.E.L. Services,

    161 F.3d 1318, 1328 (11th Cir. 1998)("Standard argues that his requests for accommodation of his back injury constitute statutorily protected activity. In this context, it would be sufficient for him to show that he had a good faith, objectively reasonable belief that he was entitled to those accommodations under the ADA. He cannot show this, however. Standard has not produced any evidence that, at the time that he requested accommodations for his back injury, his belief that he was disabled was objectively reasonable. He merely asserts that his back injury was a disability, without any grounds for the conclusion. As discussed, supra, the mere existence of a physical impairment does not constitute a disability under the ADA; the impairment must substantially limit a major life activity."); and Robinson v. Hoover Enterprises LLC, No. 1:03- CV-2565-TWT, 2004 U.S. Dist. LEXIS 25375 *10 (N.D. Ga.

    October 20, 2004)("[I]n order to find his request for a reasonable accommodation qualifies as a statutorily protected activity,

    Robinson must show that he had a good faith, objectively reasonable belief that he was disabled, and thereby protected by the ADA.").

82. "Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient [to constitute protected activity under the Act]." Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006); see also Cavazos v. Springer, No. B-06-058, 2008 U.S. Dist. LEXIS 58317 **25-26 (S.D. Tex. August 1, 2008)("[I]n order for an employee's complaint to a supervisor to constitute protected activity necessary to establish a prima facie case of retaliation under the opposition clause of § 2000e-3(a), the complaint must concern, and be in opposition to, conduct made unlawful by Title VII.").

83. In addition to showing that he or she engaged in protected activity, a complainant alleging retaliation in violation of Section 760.10, Florida Statutes, must also show that she or he suffered an "adverse employment action" and that there was "a causal connection between the participation in the protected expression and the adverse action." Russell v. KSL Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA 2004).

84. "The scope of 'adverse employment actions' is broader in the anti-retaliation context than in the anti-discrimination

    context. In the anti-retaliation context, adverse employment actions are those that might dissuade a reasonable worker from making or supporting a charge of discrimination." Saunders v. Emory Healthcare, Inc., Nos. 09-10283 and 09-11530, 2010 U.S. App. LEXIS 615 **10-11 (11th Cir. January 11, 2010). They "need not adversely affect the [complainant's] conditions of employment or employment status." Evans v. Florida Transportation Services, No. :08-cv-120-Orl-31KRS, 2009 U.S. Dist. LEXIS 19766 *8 (M.D. Fla. March 11, 2009).

85. "A causal connection means 'more than mere speculation to support an inference that [a] protected activity and [an employer's] act are linked.' The more remote in time the adverse employment action is from the protected acti[vity], the less likely that a [complainant] will be able to show a causal connection between them." Abernathy v. Frito-Lay, Inc., No. 00 C 3875, 2001 U.S. Dist. LEXIS 14654 **10-11 (N.D. Ill.

    September 19, 2001); see also Garrett v. University of Alabama at Birmingham Board of Trustees, 507 F.3d 1306, 1317 (11th Cir. 2007)("The University had knowledge of Garrett's request for leave before March. She was demoted in July 1995, more than four and one-half months after her request. Garrett's request for a medical leave and her demotion were not temporally close, much less 'very close.' Accordingly, Garrett did not meet her burden to go forward with her claim of retaliation."); Collins-

    Pearcy v. Mediterranean Shipping Co. (USA), No. H-08-2798, 2010

    
    

    U.S. Dist. LEXIS 26741 *91 (S.D. Tex. March 22, 2010)("[S]heer speculation . . . is insufficient to meet her burden to show a causal connection between a protected activity and an adverse employment act."); and Dale v. Wynne, 497 F. Supp. 2d 1337, 1345 (M.D. Ala. 2007) ("Dale's speculation is hardly enough to show a causal connection for retaliation.").

86. Applying the foregoing legal principles to the facts of the instant case results in the conclusion that Petitioner has failed to prove that any of the acts identified in her charge of discrimination constituted an actionable violation by University of the Act's prohibition against age discrimination, its prohibition against disability discrimination, or its prohibition against retaliation for protected activity.

87. The earliest (chronologically) of the allegedly unlawful acts Petitioner complains about in her charge is the "discipline" she received in November 2007 (which came in the form of placing her on probation for 30 days and changing her work schedule during this 30-day probationary period). This discrete act of "discipline," however, indisputedly occurred outside the 365-day "limitations period" prescribed by Section 760.11(1), Florida Statutes (that is, more than 365 days prior to the date, March 18, 2009, Petitioner filed her charge of discrimination with the EEOC), and no showing has been made that

    circumstances exist that would justify the tolling of this period. Petitioner's claim that this act amounted to an "unlawful employment practice" is therefore time-barred.

88. Even if this claim were viewed as having been timely made, its consideration on the merits would yield the same practical result: no relief for Petitioner. To the extent that, in making this claim, Petitioner alleges age and disability discrimination, the "discipline" about which she complains falls short of the type of "adverse employment action" needed to support such an allegation, and, in any event, the evidentiary record does not establish that this "discipline" was the product of any age-based or disability-based discriminatory intent.23 Neither is there sufficient evidence to establish that Petitioner's engaging in activity protected by the Act played any role whatsoever in her receiving this "discipline." (In fact, there is no evidence that Petitioner even engaged in such protected activity prior to being "discipline[d].")

89. The next act about which Petitioner complains in her charge is her three-day suspension in May 2008 (which was less than 365 days from the date that she filed her charge with the EEOC and therefore within the statutorily prescribed 365-day "limitations period"). Although her claim that this act amounted to an "unlawful employment practice" was timely made, it otherwise suffers from the same evidentiary deficiencies as

    her claim concerning her being "discipline[d]" in November 2007. Because Petitioner was paid for the three days she was suspended, her suspension was not an "adverse employment action" for discrimination purposes. Furthermore, the record is devoid of credible evidence demonstrating that the suspension was motivated by anything other than a legitimate business purpose (including unlawful discrimination or retaliation prohibited by the Act).

90. The third and final allegedly unlawful act identified by Petitioner in her charge of discrimination is University's failure, after having taken Petitioner's old headset away from her on September 18, 2008, to have acted on her "request[] for a reasonable accommodation," inaction which, she asserted in the charge, "forced [her] to resign." To prevail on this "failure to accommodate" claim, Petitioner had to prove at hearing, among other things, that she had a "handicap," as that term is used in the Act. She failed to do so, however. The record evidence establishes that she merely had a temporary, non-chronic pain- related impairment (that lasted no more than ten weeks) not shown to have substantially limited her in any major life activity, including working.24 Such an impairment does not constitute a "handicap" under the Act. Not only was the proof insufficient to establish Petitioner had an actual "handicap," no showing was made that Petitioner had a record of, or was

    regarded by University as having, an impairment amounting to a "handicap." Under such circumstances, Petitioner's "failure to accommodate" claim must be rejected.25

91. In light of the foregoing, Petitioner's charge of discrimination must be dismissed.

RECOMMENDATION

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

RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge.

DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 12th day of April, 2010.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2009).

2 The "ADAAA" is actually an acronym for the ADA Amendments Act of 2008, which amended the Americans with Disabilities Act. The pre-amendment version of the Americans with Disabilities Act is commonly referred to simply as the "ADA." See, e.g., Raetano v. Hiraku Corp., No. 8:08-cv-2088-T-33MAP, 2009 U.S. Dist. LEXIS 49373 *1 (M.D. Fla. May 27, 2009)("This case was filed under the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (commonly referred to as the 'ADA')."

3 The record does not reveal the contents of "Statement #22."

4 This language was added to the Americans with Disabilities Act by the ADA Amendments Act of 2008.

5 The hearing was originally scheduled to commence on

January 20, 2010, but was continued at the joint request of the parties.

6 From June 2008, until October 26, 2008, Petitioner was working at both University and Holy Cross Hospital.

7 At the final hearing, Petitioner testified that this was the only time, in her view, that she was subjected to "age discrimination" by University.

8 The Pavilion housed University's mental health unit.

9 Due to budgetary constraints, the new headsets had to be ordered two or three at a time.

10 Neither Dr. Sherman, nor any other medical professional, testified at the final hearing. A Florida Commission on Human Relations Medical Certification Form signed by Dr. Sherman (on July 9, 2009), however, was offered and received into evidence (as Petitioner's Exhibit 13). The form contained the following five questions:

1. Are you Complainant's treating medical professional with knowledge of Complainant's condition and history?

   
   

2. Does Complainant have a physical or mental impairment as described above?

   
   

3. Does the impairment substantially limit one or more of Complainant's major life activities?

[4.] If yes, please describe the impairment and how if affects Complainant's major life activities.

5. Would you be willing to testify in court or other legal proceeding regarding your treatment of Complainant and your medical opinion concerning Complainant's disability.

Dr. Sherman answered "yes" to questions 1 and 2 and "no" to questions 3 and 5. He put an asterisk, followed by "see addendum below," next to his answer to question 3. The addendum read as follows:

At the time of Gladys Norris' visit October 2008, her ability to work, as she expressed to me (without a headset) was substantially limited.

To the extent it was offered to prove the truth of the matters asserted therein, Petitioner's Exhibit 13 constitutes hearsay evidence that would be inadmissible over objection in a civil proceeding in Florida, and it therefore is insufficient, standing alone, to support any findings of fact concerning these matters. See Strickland v. Florida A&M University, 799 So. 2d 276, 279 (Fla. 1st DCA 2001)("[A]lthough hearsay is admissible in administrative proceedings, determinations of the Administrative Law Judge may not be based on hearsay alone."); Franklin v. District School Board of Hendry County, 356 So. 2d 931, 932 (Fla. 2d DCA 1978)("Clearly, all of the evidence introduced against petitioner constituted hearsay inadmissible over objection in a civil action. Accordingly, we must conclude that while admissible at the expulsion hearing, the hearsay standing alone was insufficient evidence upon which to predicate the order expelling petitioner."); National Car Rental System, Inc. v. Holland, 269 So. 2d 407, 412-413 (Fla. 4th DCA 1972)("The court allowed the plaintiff to introduce into evidence over defendant's objection a document entitled 'Doctor's Certificate' signed by a Dr. Gist, who did not

testify. . . . [I]t is clear that the document was offered as tending to prove the truth of the matter therein asserted, to- wit: that plaintiff was physically qualified on the date of the examination to operate a motor vehicle in interstate commerce.

When offered for this purpose the document was hearsay, the basis of defendant's objection. . . . The question here is whether the document was within the business records exception, (and thus competent evidence to prove the truth of its content) by virtue of the fact that it was a part of the business records of plaintiff's employer. We think not."); and § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

11 This e-mail message was actually sent on October 16, 2008, as noted above.

12 See Shin, supra; Becerril v. Pima County Assessor's Office,

587 F.3d 1162, 1164 (9th Cir. 2009); Thornton v. United Parcel Service, Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009); Fredricksen v. United Parcel Service Co., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Lytes v. DC Water and Sewer Authority, 572 F.3d 936, 941 (D.C. Cir. 2009); Milholland v. Sumner County Board of Education, 569 F.3d 562, 567 (6th Cir. 2009); and EEOC v. Agro Distribution, LLC, 555 F.3d 462, 470 n.8 (5th Cir. 2009).

13 All subsequent references in this Recommended Order to the ADA are to the pre-amendment version of the ADA.

14 An "employer," as that term is used in the Act, is defined in Section 760.02(7), Florida Statutes, as "any 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, and any agent of such a person."

15 The FCHR, however, has no authority to award monetary relief for non-quantifiable damages. See City of Miami v. Wellman, 976 So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on-quantifiable

damages . . . are uniquely within the jurisdiction of the courts."); and Simmons v. Inverness Inn, No. 93-2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 **4-5 (Fla. DOAH October 27, 1993)(Recommended Order)("In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race.

Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non- quantifiable damages) because of racial slurs and epit[he]ts made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e. g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So. 2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So. 2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages.").

16 "[W]hen a charge is dually filed with the EEOC and the FCHR, the date of filing with the EEOC shall also be considered the date of filing with the FCHR." Wells Fargo Guard Services v. Lehman, 799 So. 2d 252, 254 (Fla. 3d DCA 2001).

17 Section 95.051, Florida Statutes, provides as follows:

1. The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

   
   

   1. Absence from the state of the person to be sued.

      
      

   2. Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.

      
      

   3. Concealment in the state of the person to be sued so that process cannot be served on him or her.

      
      

   4. The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

      
      

   5. Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.

      
      

   6. The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

   7. The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.

      
      

   8. The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in

      s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

      
      

      Paragraphs (a)-(c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought.

      This section shall not be construed to limit the ability of any person to initiate an action within 30 days of the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. s. 108(c).

      
      

2. No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.

18 "[A] hostile work environment claim is different from a claim for a discrete act of discrimination because the unlawful practice that results in a hostile work environment cannot be said to have occurred on a specific day; rather, it occurs over

a period of time." Maggio v. Department of Labor and Employment Security, 910 So. 2d 876, 879 (Fla. 2d DCA 2005).

19 "To establish constructive discharge, the employee must demonstrate, under an objective standard, that the employer, by its illegal discriminatory acts, made working conditions so difficult that a reasonable person in his or her position would feel compelled to resign." McCaw Cellular Communications, 763 So. 2d at 1067.

20 "To 'articulate' does not mean 'to express in argument.'" Rodriguez v. General Motors Corporation, 904 F.2d 531, 533 (9th Cir. 1990). "It means to produce evidence." Id.; see also Valenzuela, 18 So. 3d at 24 ("'This intermediate burden' to produce a legitimate, non-discriminatory reason . . . is a burden of production, not persuasion."); and Mont-Ros v. City of West Miami, 111 F. Supp. 2d 1338, 1349 (S.D. Fla. 2000)("This burden is merely one of production, not persuasion, and is exceedingly light.").

21 "[The Act] does not contain any explicit provision regarding an employer's duty to attempt reasonable accommodations for an employee's or applicant's handicap. Nevertheless, such duty can be reasonably implied . . . ." Brand, 633 So. 2d at 511 n.12; see also McCaw Cellular Communications, 763 So. 2d at 1065-1066 ("If a qualified individual with a disability can perform the essential functions of the job with reasonable accommodation, then the employer is required [under the Act] to provide the accommodation unless doing so would constitute an undue hardship for the employer.").

22 "'[R]egarded as having' means the person may or may not actually have an impairment but 'is treated by a covered entity as having a substantially limiting impairment.' The employer must regard the employee as disabled within the meaning of the ADA. Consequently, the employer[] still must see the employee as substantially impaired in a major life activity." Chiesa v. New York State Department of Labor, 638 F. Supp. 2d 316, 322 (N.D. N.Y. 2009)(citations omitted).

23 "Petitioner's speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination." Constantini v. Wal-Mart Stores East, L.P., No. 5326, No. 06-2461, 2007, Fla. Div. Adm. Hear. LEXIS 127 *13 (Fla. DOAH February 28, 2007)(Recommended Order); see also Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir.

2001)("[A] jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.").

24 Although Petitioner resigned her position at University because of the pain she was experiencing, she was able to continue working as a switchboard operator at Holy Cross Hospital (where she was provided with a headset).

25 Petitioner's Petition for Relief, which was filed on or about November 4, 2009, complains about other alleged acts of discrimination and retaliation to which Petitioner claims she was subjected by University (in addition to the three alleged in her March 18, 2009, charge of discrimination): "having her schedule changed to 3 consecutive overnight weekends" in retaliation for asking for, and being granted, "the reasonable accommodation of leave" in July 2008; "being given disciplinary action [in May 2008] for not being signed on," when Ms. Reyes received "none", notwithstanding that Ms. Reyes, in violation of written University policy, "was on shift and signed off before [Petitioner] was signed on"; and not being given an annual evaluation in July 2008, contrary to written University policy. Because these allegedly unlawful acts were not raised in Petitioner's charge of discrimination, they are beyond the scope of this proceeding. Moreover, even if Petitioner's failure to have asserted these claims in her charge of discrimination were not fatal to their consideration in this proceeding, they would nonetheless not be actionable, inasmuch as Petitioner first complained about these acts (through the filing of her Petition for Relief) more than 365 days after they had occurred.

Finally, these procedural deficiencies aside, the additional claims of discrimination and retaliation made in the Petition for Relief simply lack an adequate evidentiary basis to find them meritorious.

COPIES FURNISHED:

Sheldon Engelhard, Esquire 7369 Woodmont Court

Boca Raton, Florida 33434

Alexander del Russo, Esquire Carlton Fields

Post Office Box 150

West Palm Beach, Florida 33402

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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: 09-006130

Orders for Case No: 09-006130