STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

GLADYS L. LANHAM, )

)

Petitioner, )

)

vs. ) Case No. 85-4345

)

SEAMLESS HOSPITAL PRODUCTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties on January 31, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ocala, Florida on March 5, 1986. The issue for consideration was whether the Petitioner was improperly discharged from her employment with the Respondent due to a handicap.

APPEARANCES

For Petitioner: Gladys L. Lanham, pro se

4631 Southwest 87th Terrace Ocala, Florida 32674

For Respondent: John L. Johnson, Esquire

Labor Counsel

Dart & Kraft, Inc.

211 Sanders Road Northbrook, Illinois 60062

Susan K. McKenna, Esquire

57 West Pine Street Suite 202

Orlando, Florida 32801 BACKGROUND INFORMATION

On July 26, 1985, the Petitioner, Gladys L. Lanham, filed a complaint of discrimination with the Florida Commission on Human Relations alleging she was unlawfully discriminated against because of a handicap (rheumatoid arthritis). Investigation was conducted into Petitioner's allegations by a representative of

the Commission on Human Relations (CHR) who, on October 25, 1985, submitted her report of investigation which concluded that Petitioner had not been discriminated against. On the basis of this report a Determination of No Cause was entered by the Commission on November 25, 1985, a copy of which was furnished to both Petitioner and Respondent. Thereafter, on or about December 17, 1985, Mrs. Lanham filed a Petition for Relief from an unlawful employment practice and on December 19, 1985, this Petition was transmitted to the Division of Administrative Hearings for the appointment of a Hearing Officer and the case was set for hearing as indicated. At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibits

1 and 2. Respondent presented the testimony of Ester A. Reese, a personnel specialist with Seamless Hospital Products (Seamless); Lorraine E. Kibler, Petitioner's immediate supervisor at Seamless; and Pamela Ann Sutton, a co-worker on the assembly line at Seamless. Respondent also introduced Respondent's Exhibits A through J.

Counsel for Respondent has submitted proposed Findings of Fact which have been thoroughly considered in the preparation of this Recommended Order. Specific rulings on each proposed finding are contained in an appendix to this R.O. Petitioner submitted a letter in argument of her position and commenting on the testimony presented by Respondent's witnesses at the hearing and filed a copy of the Stipulation and Joint Settlement entered in her case before the Department of Labor and Employment Security.

FINDINGS OF FACT

1. Petitioner was employed by Respondent, Seamless, at its Ocala, Florida plant from January 9, 1985 to June 21, 1985. At the time she was employed, she was furnished an employee handbook which outlines, among other things, the procedures for applying for and receiving leaves of absences.

   
   

2. Mrs. Lanham had also been employed by Becton-Dickinson, a company owned by Dart & Kraft, Inc., the company which owns Seamless as well. Becton-Dickinson was the forerunner to the Seamless operation at the same plant site. During this previous period of employment, Mrs. Lanham applied for a four day leave of absence extending from March 7, 1984 through March 10, 1984 for medical reasons. The form application for a leave of absence prepared by the Petitioner and bearing her signature as well as those of the additional individuals in her chain of supervision reflects that the form was submitted subsequent to Mrs. Lanham's return from leave.

3. Mrs. Lanham contends that she was discriminated against

   because of a physical handicap (rheumatoid arthritis) yet the employment application she executed on November 1, 1984, some two months before she was hired and approximately 7 months prior to the leave of absence which resulted in her termination, reflected that she did not have any physical condition which would limit her ability to perform the job applied for.

4. Mrs. Lanham took an administrative leave on June 10, 1985 and remained absent until June 21, 1985. On June 10, Mrs. Lanham's husband delivered a disability certificate signed that date by Mrs. Lanham's physician, Dr. Panzer, to Mrs. Lanham's supervisor, Mrs. Kibler. This disability certificate was in turn transmitted to Mrs. Reese, the personnel specialist, by Mrs. Kibler. On June 12, Mrs. Reese talked by telephone with Mr. Lanham, advising him that Mrs. Lanham had to come in to fill out a form for a leave of absence. Later in the day, Mr. Lanham called back to say that Petitioner would be in the next morning. Mrs. Lanham did, in fact, come in on June 13. In a meeting in Mrs. Reese's office, Mrs. Reese gave Mrs. Lanham a form for a leave of absence request. At the time, Mrs. Lanham objected to coming in to fill out the form indicating she did not think it was necessary because she had a doctor's statement which she understood would make a leave of absence request unnecessary. In response, Mrs. Reese explained that the leave of absence request was necessary because the doctor's statement, previously submitted on June 10, showed no diagnosis and was, therefore, inadequate. In response Mrs. Lanham indicated she would not fill out or sign any form without first taking it to her attorney.

5. The completed leave of absence form was received by Mrs. Reese that same day, after lunch, when Petitioner's husband brought it in and dropped it off at the reception desk. This leave of absence form is dated by Mrs. Lanham on June 12, 1985, and indicates in the explanation portion thereof that the reason for the requested leave of absence is "job related injury."

   
   

6. When Mrs. Reese saw this entry, she immediately called Mrs. Lanham's home leaving word for Mrs. Lanham to return the call. This call was not returned, and, later in the day, Mrs. Reese again called Mrs. Lanham, this time leaving word for her to report to the Oakbrook Clinic for an examination of the job related injury the first thing the next day. Mrs. Lanham at no time reported to the clinic for the examination as directed either that day or any time thereafter. Repeated phone calls to the Lanham residence failed to result in Mrs. Lanham being reached. In addition, repeated requests by mail, telegram, and phone for her to come into the office and explain her absence were met with no response. In fact, Mrs. Lanham was on vacation during a substantial portion of the time of her absence a vacation which, she contends, her doctor advised her to take. There was no independent evidence in any form of the nature of Mrs. Lanham's condition or her doctor's prescribed course of treatment for it. Since, therefore, her leave of absence had not been approved, it was thereafter determined that she had abandoned her job and on June 21, 1985, she was notified by certified mail that a determination was made that she had voluntarily resigned her position with the company.

7. Mrs. Lanham contends that she felt it was perfectly all right for her to wait until she returned from her leave of absence to submit the leave of absence request basing this conclusion on the fact that when she worked for Becton-Dickinson, some two years previously, that was the procedure followed. Though that might have been the procedure at the earlier time with the other company, it is clear that that was not the procedure followed by Seamless at the time in question and Mrs. Lanham's reliance on the earlier procedure, especially in light of the repeated contacts with her and the additional attempted contacts, result in the clear conclusion that she declined to comply with the company rules at her own peril.

   
   

8. Mrs. Lanham indicates that the reason the diagnosis was not in the initial disability certificate submitted by her was that the lab work had not been completed at the time it was submitted and she failed to go to Oakbrook Clinic notwithstanding the repeated requests by Mrs. Reese because she understood that it was up to her to go at her convenience. She intended to go to Oakbrook when she got back from her vacation. 9. Subsequent to all the above, Mrs. Lanham settled a Workmen's Compensation claim in her case for some financial award. The terms of the settlement are not relevant to the issues herein. It is evident, however, that the award was based on compromise rather than liability and no firm determination of compensability was made.

1. Mrs. Lanham was absent for three days prior to submitting the absence request form for this June 1985 absence. When the form was submitted, it contained information relating to a job related injury, which entry was placed there by Mrs. Lanham's attorney. This raised legitimate questions in the Respondent's personnel officials' minds to require further contact with Petitioner since there had been no previous notification of injury. By this time, however, Petitioner had either gone on vacation or for some other reason, refused to respond to the requests of the personnel people to either come into the plant or go to the clinic for evaluation. Mrs. Lanham may have had a valid disability, but it was not the disability for which she was terminated. It was the extended unexcused or unapproved absence from June 13 through June 21, a period of more than three days, which, under the guidelines set out in the employee manual, resulted in a legitimate conclusion by management that Petitioner had abandoned her position and it is clear that her termination was based on that rather than any reference to her handicap.

2. All other information relating to Mrs. Lanham's complaints about job working conditions and her request to be reassigned have little if any bearing on the issue of

   discrimination.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

4. Under the provisions of Section 23.167(1)(a), Florida Statutes, it is an unlawful employment practice for an employer:

   
   

   To discharge or to fail or to 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.

   
   

5. A handicap is defined as "a physical impairment which substantially limits one or more major life activity . . ." per Section 760.22(5), Florida Statutes.

   
   

6. When an individual alleges he or she is subjected to disparate treatment in employment because of his or her handicap, he has the initial burden of establishing, prima facie a case of discrimination by a preponderance of the evidence. Once a complainant has done so, the burden then shifts to the employer to demonstrate a legitimate, non-discrimininatory reason for the action complained of. Texas Department of Commonwealth Affairs vs. Burdine, 101 S.Ct. 1089 (1981)

   
   

7. Petitioner in no way was able to establish any discriminatory motivation for her termination of employment with Seamless Hospital Products much less a showing that the dismissal was based on her handicap. A thorough review of the evidence submitted, including the summary of investigative report by the Commissioner's investigator, failed to reveal any determination being made that Mrs. Lanham suffered from a physical handicap. She attempted to establish through reference to the Workmen's Compensation settlement that a determination was made that she was entitled to compensation. Even assuming, arguendo, that she had established a handicap existed, there was no evidence that the handicap was the basis for her termination.

   
   

8. Quite to the contrary, it is obvious that the basis for Mrs. Lanham's termination was her total unwillingness to conform to the requirements of the company for which she worked at the time of the proposed leave of absence and her reliance on what

she determined to be the way things should operate. It is basic that if one wishes to work for a concern, one must comply with that company's lawful rules and requirements, and a failure to do so can legitimately support termination from employment.

RECOMMENDATION

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

RECOMMENDED that the Petition for Relief filed by Gladys L. Lanham be denied.

RECOMMENDED this 22nd day of April, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1986.

COPIES FURNISHED:

Gladys L. Lanham. 4631 SW 87th Terrace Ocala, FL 32674

John L. Johnson, Esq. Labor Counsel

Dart & Kraft, Inc.

211 Sanders Rd. Northbrook, IL 60062

Susan K. McKenna, Esq.

57 W. Pine Street Suite 202 Orlando, FL 32801

Betsy Howard

Clerk of the Commission on Human Relations

325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303

Aurelio Durana General Counsel

Commission on Human Relations

325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303

Donald A. Griffin Executive Director

Commission on Human Relations

325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by Respondent in this case.

14. Incorporated in finding of fact 10 and 11.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

GLADYS L. LANHAM, EEOC Case No. n/a

Petitioner, FCHR Case No. 85-3099

1. DOAH Case No. 85-4345

   
   

   SEAMLESS HOSPITAL PRODUCTS, FCHR Order No. 86-032

   
   

   Respondent.

   /

   
   

   ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner Robert L. Billingalea, Panel Chairperson;

      Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey.

      
      

   2. Appearances

      For Respondent Seamless Hospital Products: Susan R. McKenna, Esquire

      57 West Pine Street Suite 202

      Orlando, Florida 32801

      
      

      No appearance was entered at the Commission deliberation by or on behalf of Petitioner.

      
      

   3. Preliminary Matters

      Gladys Lanham, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1985),l alleging that Seamless Hospital Products, Respondent herein, unlawfully discriminated against Petitioner on the basis of handicap {rheumatoid arthritis).

      
      

      In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation wee submitted to the Executive Director. On November 26, 1985, the Executive Director issued 0a Determination finding no reasonable cause to believe that an unlawful employment practice occurred.

      
      

      On December 14, 1985, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on March 5, 1986, in Ocala, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on April 22, 1986.

      Neither party filed exceptions to the Recommended Order. Pursuant to notice, public deliberations were held on July

      11, 1986, in Orlando, Florida, before the aforementioned Panel of

      Commissioners, at which deliberations the Panel determined the action to be taken upon the petition.

      
      

   4. Findings of Fact

      
      

      Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in this proceeding, the Panel finds that the Hearing Officer's findings of fact are supported by competent substantial evidence. The Hearing Officer 'a findings of fact are hereby adopted.

      
      

   5. Conclusions of Law

      
      

      The Hearing Officer defined the term "handicap" as that term is used in the Human Rights Act of 1977 as "'a physical impairment which substantially limits one or more major life activities. . . ." In so concluding, the Hearing Officer applied the statutory definition of handicap contained in another antidiscrimination law, the Fair Housing Act, Section 760.22(5), Florida Statutes.

      
      

      This Panel declines to adopt the Hearing Officer's interpretation. In interpreting the term handicap under the

      Human Rights Act of 1977,2 the Commission has consistently chosen to give handicap a meaning in accordance with common usage:

      
      

      Generally, handicap connotes a condition that prevents normal functioning in acne way: A person with a handicap does not enjoy, in some measure, the full and normal us e of his sensory, mental or physical faculties.

      
      

      Fenesy v. GTE Data Services, Inc., FCHR Order No. 81-0042, 3 FALR 1764-A, 1765-A (August 11, 1981), aff'd, DO AH Case No. 80-473,

      slip op. December 13, 1980 at 14; Brevard County Sheriff's Department v. Florida Commission on Human Relations, 4 FALR 604- A, 608-A (February 23, 1982), rev'd on other grounds, 429 5O.2d 1235 (Fla. 5th DCA 1983); Hydu v. Arab Pest Control Company, FCHR Order No. 82-072 (December 1, 1982). Accord Kelley v. Bechtel Power Corporation, Case No. 85-0624, slip op. at 5, 6 (S.D.Fla.

      March 13, 1986), where the federal court held that the Fenesy definition of handicap applied on plaintiff's state claim brought under the Human Rights Act of 1977. The Court rejected the defendant's argument that the definition of handicapped person found in the federal Rehabilitation Act of 1973, 29 U.S.C. Section 706~7)(B), controlled:

      
      

      This Court finds that the FCHR definition of "handicap. as set forth in Fenesy, supra, is the applicable definition in this cause. The Court defers to the agency's definition.

      Dept. of Prof. Reg. v. Durrani, 455 5O.2d 515, 517 (Fla. 1st DCA 1984). Thus, the Court rejects the contention of Defendant that the federal definition applies to this cause. Since the federal definition of handicapped individual" does not apply, the caselaw construing the federal definition is a less appropriate guide here than the Florida administrative decisions. The FCHR had the opportunity to adopt the federal definition in this cause, yet declined to do so.

      
      

      Furthermore, the Human Rights Act of 1977 and the Fair Housing Act are separate and distinct statutory provisions, patterned on separate and distinct federal provisions.3 In the absence of legislative intent that the definition of handicap contained within the Fair Housing Act was intended to apply to the earlier enacted Human Rights Act of 1977, we decline to change our longstanding interpretation.

      
      

      Accordingly, the Hearing Officer's construction of the term

      handicap under the Human Rights Act of 1977 is rejected. The Panel, however, concurs with the Hearing Officer's remaining conclusions. Petitioner failed to show that she is handicapped within the meaning of the law and that, even if handicapped, Petitioner failed to show that her termination was based upon such handicap.

      
      

      The Hearing Officer's conclusions of law, as modified above, are a correct application of law. The Hearing officer's conclusions of law, as modified, are hereby adopted.

      
      

   6. Dismissal

The Hearing Officer's recommendation is adopted and his Recommended Order is incorporated herein by reference.

Accordingly, the Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are hereby DISMISSED with prejudice.

Petitioner is advised of her right to petition the Florida District Court of Appeal for review of this Order within 30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat.; Fla. R. App. P.

9.110(b).

It is so ORDERED.

DATED this 30th day of July, 1986.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

By: Commissioner Robert L. Billingslea,

Panel Chairperson;

Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey.

FILED this 5th day of August, 1986, in Tallahassee, Florida.

Betsy Howard

Clerk of the Commission

COPIES FURNISHED:

Gladys Lanham, Petitioner (C.M.#P415213781)

Susan K. McKenna and John L. Johnson, Attorneys for Respondent (C.M. #P415213782)

Dana Baird, Legal Advisor for Commission Panel

Paulette H. Simms, Administrator of Employment Investigations Arnold H. Pollock, DOAH Hearing Officer

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1985), and all rule references are to Florida Administrative Code.

2/ In contrast to the Fair Housing Act, the Human Rights Act of 1977 does not provide a statutory definition for the term handicap.

3/ The Human Rights Act of 1977 is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981). The Fair Housing Act if patterned on Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Section 3601 et seq.

Docket for Case No: 85-004345

Orders for Case No: 85-004345