STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN EHLERS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3782

) FLORIDA EMPLOYERS INSURANCE ) SERVICE CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on January 25, 1993 in Sarasota, Florida with a continuation of that hearing held on February 2, 1993, in Sarasota, Florida.

APPEARANCES

For Petitioner: Snowden S. Mowry, Esquire

KANETSKY, MOOR & DEBOER, P. A.

Post Office Box 1767 Venice, Florida 34284-1767

For Respondent: David J. Stefany, Esquire

HOGG, ALLEN, NORTON & BLUE, P. A.

324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

On January 2, 1991, Petitioner filed a Charge of Discrimination against the Respondent, Florida Employers Insurance Service Corporation (FEISCO) alleging it had discriminated against her because of her handicap or perceived handicap, chronic fatigue syndrome. On April 27, 1992, the Florida Commission on Human Relations (Commission) entered its Determination: No Cause, as to Petitioner's previously filed Charge of Discrimination against Respondent. Thereafter, on May 26, 1992, through her counsel, Petitioner filed a Petition For Relief with the Commission based on the same alleged discrimination, and on June 23, 1992, the matter was transmitted to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing.

At the hearing, the Petitioner testified in her own behalf and presented the testimony of Michael O'Day, Ann Pope-Shaw, Amy Bergman and Joan Zare.

Petitioner's exhibits 1 through 14 were received as evidence in this case. Respondent presented the testimony of Jim Venza, Joan Zare, Risha Gravelin, Terry Nelson, Robert Burgoon and John Keegan. Respondent's exhibits 1 through 4 were received as evidence in this case.

A transcript of the proceeding was filed with the Division of Administrative Hearings of March 3, 1993. The parties timely filed their Proposed Findings of Fact and Conclusions of Law with the Division of Administrative Hearings. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes.

   
   

2. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments.

   
   

3. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department.

   
   

4. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science.

   
   

5. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs.

   
   

6. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work.

   
   

7. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations.

   
   

8. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance.

9. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status.

   
   

10. In January, 1990, Petitioner received a salary adjustment upward from

    $20,000.00 to $20,500.00

    
    

11. In June, 1990, Petitioner received a congratulatory memorandum and a

    $50.00 bonus for successfully completing a Property and Liability Insurance course and examination.

    
    

12. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills.

    
    

13. Petitioner participated in outsider course work and Toastmasters.

    
    

14. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively.

    
    

15. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome.

    
    

16. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds".

    
    

17. While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating.

    
    

18. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager.

    
    

19. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours.

    
    

20. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job.

    
    

21. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's

    job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties.

    
    

22. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO.

    
    

23. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990.

    
    

24. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns.

    
    

25. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement.

    
    

26. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer.

    
    

27. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas.

    
    

28. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment.

    
    

29. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training.

    
    

30. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors.

    
    

31. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project.

    
    

32. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare.

    
    

33. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was

    transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project.

    
    

34. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare.

    
    

35. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated.

    
    

36. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare.

    
    

37. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990.

    
    

38. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits.

    
    

39. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition.

    
    

40. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

42. Petitioner contends that she was unlawfully discharged by Respondent because of her handicap or perceived handicap.

    
    

43. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

44. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 421

    U.S.C., 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So. 2d 103, (1 DCA Fla. 1981).

    
    

45. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by a preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.

    
    

46. To present a prima facie case, the Petitioner must present facts which "...'raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors'...", Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, 450 U.S. 248. The prima facie case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44 (1977).

    
    

47. In order to establish a prima facie case, Petitioner must show: (1) she is a member of a protected class; (2) she is qualified and; (3) she was discharged from the job by reason of her handicap. Cf. McDonnell Douglas, 411

    U.S. 792.

    
    

48. Although Petitioner has shown that she has a handicap and, thus, is a member of the protected class of handicap individual and that she was qualified for the position for which she was hired, she has failed to prove that she was discharged from her position by reason of her handicap. Therefore, Petitioner has failed to present a prima facie case.

    
    

49. However, assuming arguendo that Petitioner has established facts sufficient to raise the presumption of a prima facie case, the Respondent has articulated legitimate, nondiscriminatory reasons for its decision to discharge Petitioner. This dispute centers not on Petitioner's capabilities, but on her job performance and her inability to accept criticism of her job performance. Considering the evidence in the light most favorable to Petitioner, it shows that the Petitioner was capable of satisfactory performance on the job but at one point failed to perform her assigned duties satisfactorily and, when confronted with her unsatisfactory performance became defensive resulting in her discharge.

    
    

50. Petitioner argues that Respondent's stated reasons for her discharge are merely a pretext for unlawful discrimination. However, there is insufficient evidence in the record to establish facts to show that Respondent's decision to discharge Petitioner was motivated by her handicap or perceived handicap. Therefore, Petitioner has failed to meet her burden to show that the reasons offered by Respondent for her discharge were pretextual and that the intent behind Petitioner's discharge was actually discriminatory.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed.

RECOMMENDED this 26th day of May, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record.

Respondent's Proposed Findings of Fact.

1. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial.

   
   

2. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record.

COPIES FURNISHED:

Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A.

Post Office Box 1767 Venice, Florida 34284-1767

David J. Stefany, Esquire

HOGG, ALLEN, NORTON & BLUER, P. A.

1. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606

   
   

   Sharon Moultry, Clerk Human Relations Commission

2. John Knox Road Building F, Suite 240

Tallahasse, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

KAREN EHLERS, )

)

Petitioner, ) EEOC Case No. n/a

) FCHR Case No. 91-1118

vs. )

)

FLORIDA EMPLOYERS INSURANCE ) DOAH Case No. 92-3782 SERVICE CORPORATION, ) FCHR Order No. 93-028

)

Respondent. )

)

FINAL 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 Geraldine Thompson, Panel Chairperson;

   Commissioner Judith Kavanaugh; and Commissioner James Mallue.

   
   

2. Appearances

   
   

   For Petitioner Snowden S. Mowery, Esquire Karen Ehlers: Kanetsky, Moor & DeBoer, P.A.

   Post Office Box 1767 Venice, Florida 34284-1767

   
   

   For Respondent David J. Stefany, Esquire Florida Employers Hogg, Allen, Norton & Blue, P.A.

   Insurance Service 324 South Hyde Park Avenue, Suite 350 Corporation: Tampa, Florida 33606

   
   

3. Preliminary Matters

   
   

   Karen Ehlers, Petitioner herein, filed a complaint of discrimination with the Commission on Human Relations pursuant to the Human Rights Act 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Florida Employers Insurance Corporation (FEISCO), Respondent herein, unlawfully discriminated against her on the basis of handicap.

   
   

   In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred.

   
   

   Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

   
   

   A formal administrative hearing was held before DOAH hearing officer William R. Cave, who issued a Recommended Order of dismissal. Petitioner Ehlers filed exceptions to the Recommended Order and Respondent FEISCO filed its response to the exceptions.

   
   

   Pursuant to notice, public deliberations were held in Orlando, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

   
   

4. Rulings on Petitioner's Exceptions

   
   

   1. Exceptions to paragraphs numbered 17, 22, 30, 31 and 49 of the Recommended Order:

      These exceptions are denied. They are exceptions to the different aspects of the evidence credited by the hearing officer. The exceptions are denied because the hearing officer has discretion in evaluating the evidence presented to him. FEISCO's response to these exceptions are correct. See Davis v. Humana of Florida, Inc., 15 F.A.L.R. 231 (FCHR 1992).

      
      

   2. Exceptions to paragraphs numbered 47 and 48 of the Recommended Order:

   
   

   These exceptions have merit. Establishing a prima facie case of discrimination under the McDonnell Douglas evidentiary framework does not require a showing that Petitioner was discharged from her position "by reason of her handicap". This is an incorrect statement of law and it is rejected.

   
   

   In DeLong v. Department of Transportation, 15 F.A.L.R. 240,243 (FCHR 1991), the DOAH hearing officer makes the same incorrect statement of law. The Commission adopted the Recommended Order in DeLong but the holding adopted by the Commission was that no discrimination occurred because DeLong did not qualify as an individual with a handicap. The incorrect statement of law supra amounts to no more than incorrect dicta in the DeLong decision.

   
   

   In Lee v. Russell County Board of Education, 684 F.2d 769,773 (11th Cir. 1982), the court explains the elements of a prima facie case in the context of discharge from employment: (i) plaintiff must be a member of a protected class;

   (ii) plaintiff must be qualified for the position held; (iii) plaintiff must have been discharged; (iv) plaintiff must have been replaced by a person outside the protected class [or a person outside the protected class with equal or lesser qualification was not discharged].

   
   

5. Findings of Facts

   
   

   The DOAH hearing officer's findings are supported by competent substantial evidence. We adopt the hearing officer's findings of fact.

   
   

6. Conclusions of Law

   
   

   The hearing officer errors in stating that the elements of a prima facie case include a showing that Petitioner was discharged "because of her handicap". The correction is set forth in our Rulings on the Exceptions. The error is harmless because the hearing officer assumes arguendo and credits Petitioner with establishing a prima facie case. The hearing officer then concludes that Respondent's articulated reason for discharging Petitioner is legitimate and nondiscriminatory. The finding that no unlawful discrimination occurred is correct.

   
   

   We accept the hearing officer's overall analysis of the legal issues and conclusions based upon the factual findings. We incorporate the above correction regarding the elements of a prima facie case of discrimination under the McDonnell Douglas evidentiary framework and we adopt the hearing officer's conclusions.

   
   

7. Dismissal

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of his right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal

must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P.

9.110(b).

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY Commissioner Geraldine Thompson,

Panel Chairperson;

Commissioner Judith Kavanaugh; and Commissioner James Mallue.

FILED this 10th day of 1993, in Tallahassee, Florida.

Clerk of the Commission

Copies furnished to:

Snowden S. Mowry, Esquire Kanetsky, Moor & DeBoer, P.A. Post Office Box 1767

Venice, Florida 34284-1767

David J. Stefany, Esquire

Hogg, Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606

William R. Cave, DOAH Hearing Officer Harden King, Legal Advisor

Docket for Case No: 92-003782

Orders for Case No: 92-003782