STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA BRUNO,

vs.

Petitioner,

Case No. 18-4234

WCA USA, INC.

Respondent.

/

RECOMMENDED ORDER

On January 9, 2019, Administrative Law Judge Lisa Shearer Nelson of the Florida Division of Administrative Hearings (DOAH) conducted a hearing by video teleconference with sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Melissa A. Bruno, pro se

514 Northwest 102nd Way Plantation, Florida 33324

For Respondent: Roy E. Nelson, Esquire

Egozi & Bennett, P.A. Suite 407

2999 Northeast 191st Street Aventura, Florida 33180

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether Respondent discriminated against Petitioner based upon a disability in violation of section 760.10(a), Florida Statutes (2017); and, if so, what remedies are appropriate.

PRELIMINARY STATEMENT

On December 6, 2017, Petitioner, Melissa Bruno (Ms. Bruno or Petitioner), filed a complaint with the Florida Commission on Human Relations (FCHR), alleging that she had experienced discrimination based upon a disability. On August 2, 2018, FCHR issued a Determination of No Reasonable Cause, as well as a Notice of Determination: No Reasonable Cause that informed

Ms. Bruno of her hearing rights.

On August 13, 2018, Ms. Bruno filed a Petition for Relief with FCHR, and FCHR forwarded the Petition for Relief to DOAH on August 15, 2018, for assignment of an administrative law judge. On August 29, 2018, Petitioner filed a series of documents, many of them containing confidential information. An Order Regarding Filing of Documents was issued, advising Petitioner that filing documents on the docket did not mean that those documents would be considered admissible and used to evaluate her claim, and that the time for submitting documents was at hearing, when the admissibility of the documents would be determined. Petitioner was advised that the documents would not be considered unless and until such time as they were presented at hearing, and were admitted into evidence. The Order stated, “[N]o similar documents should be filed on the docket in this case, unless ordered to do so in the Notice of Hearing. In that event Petitioner must adhere strictly to the directions provided.”

That same day, a Notice of Hearing by Video Teleconference was issued scheduling the final hearing for November 8, 2018.

On September 6, 2018, a letter, presumably from Petitioner’s physician, was filed, and a Notice of Ex Parte Communication was issued on September 10, 2018.

Respondent filed an unopposed Motion for Continuance on October 22, 2108, based on the unavailability of a key witness. The continuance was granted, and the case was rescheduled for hearing for January 9, 2019. A prehearing conference was also scheduled for and conducted on December 19, 2018, in order to explain to Petitioner, who proceeded without the benefit of counsel, the process used to conduct the hearing.

The video hearing commenced and concluded on January 9, 2019. Petitioner testified on her own behalf and presented the testimony of Thomas Tegenkamp, Louis Bruno, Matthew West, and Sudkhanueng Bynoe. Petitioner’s Exhibits 3, 7-9, 11, and 12 were admitted into evidence. Respondent presented the testimony of Matthew West and Ms. Bynoe, and Respondent’s Exhibits 1, 2, 4, and 5 were also admitted.

The proceedings were recorded, but neither party ordered a transcript. The parties were given until Tuesday, January 22, 2019, to file proposed recommended orders in light of the Martin Luther King, Jr., holiday. Respondent filed its Proposed

Recommended Order on January 23, 2019. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. The original complaint filed with FCHR states in pertinent part:

   “I am a disabled female. I have been discriminated against based on disability. On 8/17/2017, I told my CEO (Mr. David Yokeum) that I had to leave the office due to my disability. I was feeling dizzy and needed to take my medication. . . .

   Respondent knew I had a previous injury on my arm/hand and that I couldn’t use my hand in an excessive amount. I re-injured my hand while cleaning and went to the Emergency Room. I was placed on medical leave until I was cleared by Hand Surgeon. .

   . . I was told I was no longer needed because I couldn’t clean.

   
   

2. The Petition for Relief filed after the FCHR’s Determination of No Cause states in pertinent part: “discriminated, treated unfairly due to anxiety disorder; wrongfully demoted to cleaning person resulting in further aggravation of an injury.” No mention of the anxiety disorder appears in the original complaint.

3. Melissa Bruno is a single mother with two sons. Her father, Thomas Tegenkamp, owns a local business in the Sunrise area. Mr. Tegenkamp has enjoyed a long-standing friendship with David Yokeum, the chief executive officer of WCA USA, Inc. (WCA).

   
   

4. There was little, if any, evidence presented about WCA, except that Mr. Yokeum was the chief executive officer and that, at the time of Petitioner’s employment, there were approximately

   25 employees.

   
   

5. At some point, Mr. Yokeum mentioned to Mr. Tegenkamp that his company was looking for an employee for the office.1/ Mr. Tegenkamp told Mr. Yokeum that his daughter was looking for a job. No evidence was presented regarding her qualifications for the job at WCA-–her past training and job experience was as a cosmetologist. It appears from the evidence that she was hired primarily because of her father’s friendship with Mr. Yokeum.

6. Petitioner was hired by WCA in July 2014 as a receptionist. Initially, her duties included answering the phone and the door, ordering supplies, and helping around the office. Her position was a salaried, as opposed to an hourly, position.

7. About four months after Petitioner was hired, she was given responsibility for the UPS program. The UPS program is a billing function that needed to be completed each week, and involved downloading approximately 20,000 lines of data regarding shipping charges, separating the lines by “members,” and invoicing those members for their shipping costs.

8. Matthew West is the regional director of North America for WCA, and has been with the company for approximately six years. He performed the duties related to the UPS program

   
   

   previously, in addition to several other responsibilities, and performed these duties after Petitioner’s departure. He believes that the UPS program can be completed by one person and is not a full-time job. He was not informed by Petitioner or anyone else that Petitioner had any type of disability.

9. Sudkhanueng Bynoe has worked for WCA for 16 years in a variety of capacities, and currently serves as the company’s office manager. She participated in Petitioner’s hiring, and performs the company’s human resources functions. She remembered that, at some point, Petitioner told her that Petitioner had

   G.A.D. (generalized anxiety disorder), but she was not familiar with the acronym, and Petitioner did not explain what G.A.D. meant. Petitioner did not ask for any modification of her work based on her anxiety. She acknowledged that she did not advise Ms. Bynoe that her generalized anxiety disorder limited her ability to perform tasks, and did not ask for an accommodation.

10. Both Petitioner’s brother and father testified at hearing. When asked at hearing, neither identified any disability from which Petitioner suffered while working at WCA. Both knew she took medication, but did not know what kind of medication or the basis for taking it. Neither identified any activity of daily life that was impaired by any type of disability.

    
    

11. In late 2014, Petitioner was arrested for driving under the influence (DUI). She claimed that the reason for the arrest was that she was overmedicated for her anxiety disorder. She notified her employer about the DUI, and had a conference with Mr. Yokeum and Ms. Bynum about the legal requirements she needed to fulfill with respect to the DUI. None of the documents related to the DUI were admitted into evidence, and the specific requirements were not identified. However, it is undisputed that WCA allowed her time off to attend whatever court dates she had, and that she was allowed to come in late and leave early for an unspecified length of time because she needed to get a ride from her father to and from work.

12. Mr. West described Petitioner as someone who tried very hard, and put in a lot of hours. However, her performance was not up to par. The UPS program needed to be completed each week, and her timeline for completion was way too long. She was often as much as a week behind. He recalled her having a couple of “meltdowns” while with the company, but was never informed that she had a disability.

13. In addition to the length of time that it took Petitioner to complete her work each week, she developed a problem with attendance. When she did come to work, she was frequently late, and took lengthy breaks during the day.

    Mr. West testified that employees started with five vacation days

    
    

    at the beginning of employment, which would progress to ten days. He testified that there was no specific time allotted for personal time in addition to the vacation days. Ms. Bynoe indicated that employees were allotted ten days each year for vacation, and ten PTO (personal time off) days. Respondent believed that she had ten days for vacation and ten days for PTO, for a total of 20 days each year. Assuming that the attendance policy in fact allowed both vacation days and PTO days, Petitioner’s absences exceeded what was allowed.

14. For example, in 2015, Ms. Bruno took nine days of sick leave, 15.5 days of PTO, and nine days of vacation, for a total of 33.5 days. She was allowed to work from home an additional five days, although working from home meant that someone else had to perform her receptionist duties. In 2016, she took 14 days of sick leave, 10.5 of PTO, and nine days of vacation, again for a total of 33.5 days. She came in after 10:00 a.m. an additional six days and worked from home an additional three days (two full days and two half days).2/ Petitioner had hand surgery in

    June 2016, which accounted for at least some of her absences.

    
    

    In 2017, from January 1 until August 31, Petitioner took six days of sick leave, 6.5 days of personal leave, and one day of vacation. She worked from home on 8.5 days, and was late (coming in after 10:00 a.m.) 13 times. She was also absent from the office an additional 11 days, of which ten were attributed to her

    
    

    suspension as of August 17, 2017. There were two occasions, although the dates were not specified, where Petitioner did not come into work and did not call to say that she would not be coming in.

15. In short, Petitioner was late or absent more times than anyone else in the company. Because of her absenteeism, there was a meeting at some point in 2017 with Ms. Bynoe and another employee, where Ms. Bynoe requested that Petitioner sign in when she came to work and sign out when she left. She was the only employee required to sign in and out, but the procedure was implemented because of her excessive absences that other employees did not share.

16. Petitioner’s absences were related to a variety of problems, including her mother’s passing, an anxiety disorder, dental work, hand surgery in June 2016, a partial hysterectomy, and ovarian cysts. Petitioner also had some issues with one of her sons, which increased her stress. However, the greater weight of the evidence does not indicate that she had a disability as is contemplated under the Americans with Disabilities Act.

17. The evidence also does not establish that Petitioner ever asked for an accommodation based upon a disability. The greater weight of the testimony established that WCA made several attempts to assist her, by having people help her with carrying

    
    

    supplies and allowing her to occasionally work from home, even though that impeded her ability to perform her receptionist duties.

18. In 2017, issues related to Petitioner’s performance came to a head. Mr. West had several discussions with Petitioner during the last six months of her employment, because she was often as much as a week late completing each week’s invoices. She was also often late in the mornings, and while she testified that when she came in after 10:00 a.m., it was because she was picking up supplies for the office, she did not notify her supervisor at the time that that was what she was doing. As noted above, she was allowed to work from home several times during her last year of employment.

19. A few months before her termination, Petitioner came to work with a cast on her arm, and told Mr. West that she had dropped a couch on it at home. She had broken her wrist. However, she did not ask for a less strenuous job because of her hand, and did not ask for help with the UPS program. Other employees helped her with carrying supplies and other manual tasks.

20. Petitioner was aware that she was behind in her work.

    
    

    On August 16, 2017, she spoke directly with Mr. Yokeum and told him she needed additional help. The next morning Petitioner reported to work, but had to leave for the day shortly after she

    
    

    started, because she was dizzy and “twitching,” and was afraid it would evolve into a panic attack. Once again, Petitioner texted Mr. Yokeum to advise him of her absence and the reason she had to leave the office. Mr. Yokeum was not her direct supervisor.

21. On August 17, 2017, Petitioner was advised by letter from Mark Mairowitz, WCA’s Executive Vice President, that she was being suspended from the office until at least September 1, 2017, due to her office attendance. The letter she received states in

    part:

    
    

    Hello Melissa

    
    

    David Yokeum called me to his office this morning to express his displeasure at your office attendance record as he has grown very concerned. Because of his relationship with your father, he has asked me, as WCA Executive Vice President, to interact with you and to let you know that you are NOT to contact David from now on. He has no desire to hurt your family and so he has turned all matters regarding your employment over to me. Again, you are NOT to contact David in any way. Doing so will jeopardize your continued employment at WCA. You are only to deal with me from this day forward.

    
    

    Your attendance record has been examined by David and myself and we find a disturbing pattern of absence, with far more days/hours out of the office than other WCA employees. We are concerned for your health and your safety in getting to and from the office and before you can return to the office, you will be required to undergo a complete medical evaluation/examination and obtain a “clean bill of health” letter from a physician before you can return to work.

    
    

    Furthermore, as David will be out of the office until September 1st, he prefers you NOT be in the office until his return. So, consider yourself on suspension until that date.

    
    

22. Mr. Mairowitz’s letter also requested that Ms. Bruno return her office computer and cell phone until she was reinstated, and advised her that her salary would be unaffected by the suspension. However, it is unclear from the letter what health issue Mr. Mairowitz is referencing.

23. In early September 2017, Ms. Bruno returned to the office. At this time, she was relieved of her responsibilities related to the UPS program and reassigned to cleaning in addition to stocking the office and breakroom. The cleaning consisted of vacuuming, mopping the floor, and taking out the trash. From management’s point of view, this assignment would allow her to have flexible hours and less responsibility, while not suffering any reduction in pay. From Petitioner’s point of view, the change in job responsibilities was demeaning and humiliating, and meant to embarrass her.

24. Ms. Bruno cleaned the office once, over Labor Day weekend, and did not do so again. She testified that after cleaning the office that weekend, she experienced significant pain in her hand and had to go to the emergency room to have it examined. While she testified that the emergency room sent her home with a work release for two days or until cleared by her hand

    
    

    surgeon, no documentation from the emergency room was submitted at hearing, and no evidence was submitted to demonstrate that the emergency room records were provided to WCA.3/

25. Ms. Bruno advised Mark (presumably Mark Mairowitz) that she hurt her hand and could not clean the office the way it needed to be cleaned. She did not report back to work at WCA. There was some testimony that the office was closed for a period in September related to a hurricane that hit the area, but there was no evidence as to how many days the office was closed. Petitioner’s employment was terminated as of September 29, 2017.

26. Petitioner saw her hand surgeon on or about

    
    

    September 26, 2017. She submitted documentation from the Vanguard Aesthetic Plastic Surgery which is, for the most part, illegible, but is clear enough to confirm that she was seen as a patient and received some instructions. She did not report to Ms. Bynoe that she had gone to the emergency room, and did not inform her that she was unable to perform work cleaning and organizing the office because of her hand or because of any other disability.

27. Petitioner did not testify that she was unable to perform the duties of cleaning and organizing the office because of her G.A.D.

28. Petitioner did not establish by the greater weight of the evidence that she has a disability. However, she did establish that toward the end of her employment, WCA perceived her

    
    

    as having some sort of disability, as evidenced by Mr. Mairowitz’s letter to her requesting that she get a doctor’s clearance to return to work. Despite evidence that there were concerns, it is not at all clear whether WCA’s perception is based upon problems with her hand or problems caused by her anxiety disorder.

29. Petitioner did not establish by the greater weight of the evidence that she requested an accommodation from her employer based on a disability. Likewise, she did not establish that WCA ever denied a request from Petitioner for an accommodation.

30. Petitioner did not establish that WCA treated persons without a disability differently. No evidence was presented regarding any employee with a similar position and a similar attendance history, much less that such a person was treated differently than Petitioner.

31. If anything, the evidence supports the view that WCA went to great lengths to accommodate Petitioner, in large part because of her father’s relationship with Mr. Yokeum.

    CONCLUSIONS OF LAW

    
    

32. DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida Statutes (2018).

33. The Florida Civil Rights Act of 1992, as amended (the Act), is codified in chapter 760.

    
    

34. Section 760.104/ provides, in pertinent part:

    
    

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

       
       

       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, pregnancy, national origin, age, handicap, or marital status.

          
          

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such individual’s race, color, religion, sex, pregnancy, national origin, handicap, or marital status.

          
          

35. WCA is an “employer” as that term is defined in section 760.02(7), which defines an employer 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 person.”

36. The Florida Civil Rights Act is patterned after Title VII of the Civil Rights Acts of 1964 and 1991, codified as

    42 U.S.C. § 2000, et seq. The Act is construed in conformity with the federal Americans with Disabilities Act of 1990, as amended (ADA), when addressing claims of discrimination based upon a disability or handicap. Byrd v. BT Foods, Inc., 848 So. 2d 921,

    925 (Fla. 4th DCA 2007).

    
    

37. Under the federal framework, a prima facie case for discrimination cases may be established by direct evidence which, if believed, would prove the existence of discrimination without inference or presumption. Where that evidence is lacking, as it is here, a petitioner may seek to prove discrimination by relying on circumstantial evidence of discriminatory intent, using the three-part shifting burden of proof test provided in McDonnell

    Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). See also,

    
    

    Holifield v. Reno, 115 F. 3d 1555, 1562 (11th Cir. 1997).

    
    

38. Discrimination cases involving a handicap or disability are somewhat different. As noted in Nadler v. Harvey,

    No. 06-12692, 2007 U.S. App. LEXIS 20272, at *13-14 (11th Cir.

    
    

    Aug. 24, 2007), a plaintiff may prove discrimination in two ways, disparate treatment or a failure to make a reasonable accommodation. As stated by the Eleventh Circuit in Nadler:

    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, the

    
    

    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. . . .

    
    

    We allow plaintiffs to prove disparate treatment through circumstantial evidence using the familiar burden-shifting analysis employed in Title VII employment discrimination cases. . . . It is considerably less clear that such burden- shifting applies in reasonable accommodation cases.

    
    

    * * *

    
    

    To make out a claim under the Rehabilitation Act, a plaintiff must generally show (1) he was disabled at the time of the discrimination; (2) he was otherwise qualified; and (3) he was a victim of discrimination solely because of his disability. If establishing discrimination by disparate treatment, a plaintiff must show

    1. that he was subject to an adverse employment action, (2) that he was qualified for the job at the time, (3) that his employer knew at the time of the action that the plaintiff had a disability, and (4) that the adverse action took place in circumstances raising a reasonable inference that the plaintiff’s disability was a determining factor in the decision. If establishing discrimination by failure to make reasonable accommodation, a plaintiff must merely show that (1) he was disabled,

    2. he was otherwise qualified, and (3) a reasonable accommodation was not provided. (citations omitted).

       
       

39. Under the McDonnell Douglas test, Petitioner has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. A prima facie case is

    
    

    established by demonstrating that a petitioner is a handicapped or disabled person within the meaning of section 760.10(1)(a); that he or she is qualified to perform the job at issue with or without a reasonable accommodation; and that the employer discriminated against him or her on the basis of his or her disability. Ponce

    v. City of Naples, No. 2:17cv-137-FtM-99CM, 2018 U.S. Dist. LEXIS 44980, at *19 (M.D. Fla. Mar. 20, 2018); Wolfe v. Postmaster Gen.,

    488 F. App’x 465, 466-67 (11th Cir. 2012); Earl v. Mervyns, 207

    
    

    F.3d 1361, 1365 (11th Cir. 2000). If this prima facie case is met, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reasons for the challenged action, and then the burden shifts back to the plaintiff to demonstrate that the proffered reasons are pretextual. Nadler.

40. Moreover, disparate treatment cases generally require that the plaintiff demonstrate that the employer treated someone who is similarly situated who does not suffer from a disability differently. Grant v. Hosp. Auth., No. 1:15-CV-201(LJA), 2017

    U.S. Dist. LEXIS 130113, at *15 (M.D. Ga. Aug. 16, 2017); Wolfe,

    
    

    488 F. App’x at 468. Accommodation cases have no such requirement.

41. Petitioner’s Petition for Relief did not specify the theory under which she was claiming discrimination. Her original complaint to FCHR, likewise, does not clarify the issue. In any event, Petitioner did not present any evidence of another employee

    
    

    in the same type position with the same or similar attendance record that was treated differently, so any claim related to disparate treatment would fail. No further analysis related to disparate treatment is useful. Therefore, the evidence presented must be examined in the context of an accommodation claim.

42. Section 760.10 uses the term “handicap.” That term is construed as equivalent to the term “disability” as used in the ADA. Byrd, 948 So. 2d at 926.

43. The ADA defines a disability at 42 U.S.C. § 12102 as “(A) a physical or mental impairment that substantially limits one or more major life activities of such an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C.

    § 12102(1). For this purpose, “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2). The definition provides additional guidance with respect to “being regarding as having such an impairment,” stating:

    1. Regarded as having such an impairment. For purposes of paragraph (1)(C):

       
       

       1. An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited

          
          

          under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

          
          

       2. Paragraph (1)(C) shall not apply to impairments that are transitory and minor.

    A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

    
    

44. The evidence does not establish that Petitioner suffered from a disability as that term is defined under paragraph (1)(A). While Petitioner testified that she suffers from an anxiety disorder, she did not demonstrate that her anxiety disorder substantially limits one or more major life activities; and, if it does, what activities are limited.

    Ms. Bruno testified that she takes medication and sees a psychiatrist every three months. While this evidence is undisputed and accepted as true, without more, it does not identify the life activities that are substantially limited by her condition.

45. Petitioner can demonstrate that she has a disability if she can establish that her employer perceived her as having a disability, as provided in paragraph (1)(C). Under that paragraph, she need not show that the disability limits or is perceived to limit a major life activity. Ponce, 2018 U.S. Dist. LEXIS 44980, at *20; Wolfe, 488 F. App’x at 468.

    
    

46. The evidence showed that WCA was concerned about Petitioner’s health and ordered her to get medical clearance during her suspension before she could return. The problem however, is that there is no evidence from which to determine the basis for WCA’s concern. In other words, the record presented at hearing does not provide any way to determine whether the stated concern was based upon her anxiety disorder, her problems with her hand, or something else.

47. The distinction is crucial, because if the concern was related to her anxiety disorder, it can be inferred that it is a long-term disability contemplated under the Act. If it is based upon her hand issues, that same assumption cannot necessarily be made, as 42 U.S.C. § 12102(3)(B) specifically excludes “transitory or minor” issues from the definition of a disability, and defines those terms as being an impairment with “an actual or expected duration of six months or less.” Petitioner testified that her hand surgeon (who did not testify) placed her on medical leave on September 26, 2017, until early November. Without more information from her physician indicating that she would have limitations after that point, it cannot be assumed from this record that any limitations related to her hand would last longer than six months.

48. Moreover, Petitioner specifically indicated at the beginning of hearing that she was claiming discrimination based

    
    

    upon her anxiety disorder, and not her hand. There is simply not sufficient evidence to support the claim that WCA perceived her anxiety disorder as a disability.

49. Petitioner also must prove that she was qualified for the job. Under the ADA, a person is “qualified” if she, with or without a reasonable accommodation, can perform the essential functions and job requirements of the position that the person holds. Grant, 2017 U.S. Dist. LEXIS 130113, at *16-17; Earl,

    207 F.3d at 1365. Essential job duties are fundamental job duties that the employee is obligated to perform, either presently or in the immediate future, and are decided on a case- by-case basis. Grant, 2017 U.S. Dist. LEXIS 130113, at *17;

    Earl, 207 F.3d at 1365; 29 C.F.R. § 1630.2(m). A function may be essential because the position exists to perform that function, a limited number of employees can perform the function, or the function is highly specialized and requires expertise. Grant,

    2017 U.S. Dist. LEXIS 130113, at *17.

    
    

50. There is little evidence about Petitioner’s job qualifications in this record. Petitioner was trained as a cosmetologist. There is no indication that she had experience or training to be a receptionist or to complete billing or accounting duties. Indeed, the evidence seemed to indicate that she was hired, not based upon her skill set, but rather, based upon Mr. Yokeum’s relationship with her father.

    
    

51. Even assuming that she possessed the skill set to perform her duties, the evidence presented at hearing indicates that she could not perform the duties related to her position because she was consistently behind on the deadlines required of the UPS program, and she could not perform her responsibilities as receptionist because of her excessive absences. While she asked to work from home and was given permission to do so at times, Petitioner’s position really required that she be present in the office in order to answer the phones and stock the supplies for the office. Allowing her to work from home presented an undue burden on WCA, because it meant that they had to have another employee perform the function that she was paid to perform.

52. Finally, Petitioner has not demonstrated that a reasonable accommodation was not provided to her. Petitioner admitted that she did not specifically ask for an accommodation. An employer’s duty to provide a reasonable accommodation is not triggered unless a petitioner makes a specific demand for one. Ponce, 2018 U.S. Dist. LEXIS 44980, at *22. A petitioner must

identify an accommodation that would allow a qualified employee to perform the essential functions of his or her job, and show that that the accommodation was reasonable. Grant, 2017 U.S. Dist. LEXIS 1130113, at *18; Frazier-White v. McGee, 818 F.3d

1249, 1255 (11th Cir. 2016); Earl, 207 F. 3d at 1367. Given

Petitioner’s failure to request an accommodation, WCA cannot be faulted for failure to provide one. Moreover, it appears from the record that WCA attempted to restructure her job to provide her with more flexibility and less responsibility at the same pay, yet Petitioner found that option to be unacceptable. Where, as here, Petitioner has not proven that she requested a reasonable accommodation and that her employer did not provide it, her claim of discrimination must fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief be dismissed.

DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 January, 2019.

ENDNOTES

1/ While Mr. Tegenkamp testified at hearing, Mr. Yokeum did not. Mr. Tegenkamp testified that Mr. Yokeum indicated that they were looking for someone to handle shipping. However, as indicated in the Findings of Fact, Petitioner was initially hired as a receptionist, and duties related to shipping invoices were added to her job later. From the testimony as a whole, it is more likely than not that shipping may not have been part of the original discussion, but that the need for office staff was.

2/ Petitioner claimed that when she came into work after 10:00 a.m., it was because she had stopped at the store for supplies, or had gone to the bank for the company. Ms. Bynoe

confirmed that if she was told that was the reason Petitioner was out of the office, Ms. Bynoe would consider that to be work time, and would not consider Petitioner to be late. On the days that Ms. Bynoe recorded Petitioner as being late to work, Ms. Bynoe was not informed that Petitioner was out of the office for any work-related reason.

3/ Shortly after this case was filed at DOAH, Petitioner filed a series of documents that contained medical progress notes, pay stubs, and a copy of a letter to an attorney regarding her situation. On August 29, 2018, an Order Regarding Filing of Documents was issued, advising Petitioner that the time for presenting evidence was at the hearing itself, and that the documents she had submitted would not be considered unless and until she presented them at hearing and they were determined to be admissible. This issue was discussed again at the prehearing conference, at which time it was emphasized that any evidence that Petitioner wished to be considered needed to be presented at hearing.

Petitioner did not include any of the documents previously filed at DOAH in her exhibits offered at hearing. After the presentation of her case, Petitioner asked how the medical documentation she had submitted would be considered. The undersigned reminded her that if she wanted the documents to be submitted, she needed to introduce them at hearing. She acknowledged that she had not provided them to opposing counsel, and they have not been considered. In any event, the documents filed on the docket do not include any emergency room note; any doctor’s clearance to return to work after her suspension, or any documentation provided to WCA in support of a request for an accommodation or notification of any type of disability.

4/ The relevant provisions in chapter 760 have not been amended during the period of time relevant to this proceeding.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

Melissa A. Bruno

514 Northwest 102nd Way Plantation, Florida 33324 (eServed)

Roy E. Nelson, Esquire Egozi & Bennett, P.A. Suite 407

2999 Northeast 191st Street Aventura, Florida 33180 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

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: 18-004234

Orders for Case No: 18-004234