STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY COOPER, )

)

Petitioner, )

)

vs. ) CASE No. 92-4042

)

LAKELAND REGIONAL MEDICAL )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on December 9, 1992 at Lakeland, Florida.

APPEARANCES

For Petitioner: Robert F. McKee, Esquire

Yveline Francisque-Paul, Esquire KELLY McKEE HERDMAN & RAMUS

Post Office Box 75638 Tampa, Florida 33657 0638

For Respondent: Mary Li Creasy, Esquire

ZINOBER & McCREA

201 East Kennedy Boulevard Suite 1750

Tampa, Florida 33602 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by reason of a physical handicap or a perceived physical handicap.

PRELIMINARY STATEMENT

A charge of discrimination filed March 4, 1991 by Beverly Cooper alleging that she was terminated from her position at Lakeland Regional Memorial Center alleging unlawful termination in employment by reason of handicap was investigated by the Florida Commission on Human Relations (FCHR). On April 15, 1992 the FCHR entered a Notice of Determination: No Cause. Thereafter a Petition for Relief was received by FCHR on April 30, 1992, was forwarded to the Division of Administrative Hearings for hearing and these proceedings followed. In the Petition for Relief Beverly Cooper, Petitioner, alleges that her physical handicap, i.e. herniated disc with lumbar laminectomy was a determining factor. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto.

Having fully considered all evidence presented I submit the following: FINDINGS OF FACT

1. Beverly Cooper, Petitioner, was first employed by Lakeland Regional Medical Center (LRMC) in 1971 and shortly thereafter was transferred to Surgical Services as an operating room nurse where she was continuously employed until 1990.

   
   

2. In 1976 Petitioner became operating room Team Leader on the 3-11 shift. When the director of Surgical Services moved to another position in 1988 Petitioner was appointed as acting O.R. manager and then O.R. manager and continued in that position until after Margaret Scheel was employed as Director of Surgical Services on August 8, 1988. Petitioner would have been considered for this position had she applied.

   
   

3. On February 2, 1989, Petitioner, at her request, was transferred back to the 3-11 shift as Team Leader.

   
   

4. Shortly after Scheel's arrival, Scheel concluded, from remarks made by others, that Petitioner was undermining her authority. When confronted with this information by Scheel Petitioner vigorously denied the allegations and contended that others were lying.

   
   

5. Scheel had at least two meetings with Petitioner regarding perceptions by Scheel that Petitioner was undermining her authority and encouraging doctors to write letters complaining about operating room delays. Petitioner adamantly denied these allegations and insisted she was doing her best to maintain good working relations with her supervisor (Scheel) and other nurses and doctors in the operating room.

   
   

6. Following the March 28, 1989 meeting with Petitioner Scheel prepared a memorandum of the discussions held at the meeting (Exhibit 9) and after discussing the contents of the memorandum with her supervisor, on April 10, 1989 Scheel sent a memo to Petitioner (Exhibit 10) reiterating her expectations of Petitioner's performance, ending the memo with "Termination will result if there is not evidence of positive development or adherence to these factors."

   
   

7. For the one year period ending January 1, 1990, Petitioner's Performance Appraisal prepared by Margaret Scheel showed a satisfactory rating. Scheel testified that at the time she prepared this evaluation she believed Petitioner was attempting to meet expectations.

   
   

8. On May 2, 1990 Petitioner was granted sick leave for a hysterectomy deemed necessary to correct back pains she was experiencing. This leave was scheduled to expire July 27,1990.

   
   

9. Following the hysterectomy her leave was extended to August 6, 1990 because of slow healing. Petitioner's back pains persisted and she was referred to an orthopedic surgeon. Following tests it was determined that she had a ruptured vertebrae and a lumbar laminectomy was scheduled and performed.

   
   

10. During the early part of Petitioner's absence Scheel concluded that the Surgical Services Division needed more supervision over the cleaning and maintenance of surgical instruments and that supervision was more important than the Team Leader on the 3-11 shift. Scheel talked to Petitioner while Petitioner was on leave and asked if she would like to transfer to the soon to

    be operational position of Sterile Reprocessing Coordinator. Petitioner questioned her educational qualifications for the new position and Scheel suggested that training could be provided locally and that LRMC would pay for that training. A requisition was subsequently prepared to cover this training (Exhibit 17). Petitioner agreed to take this transfer.

    
    

11. Before Petitioner was due to return from her initial absence she advised Scheel of the needed laminectomy. Receipt of Exhibit 17 indicated that Petitioner would be absent for approximately 12 weeks. After receipt of Dr. Spence's letter of August 22, 1990, Scheel requested a meeting with him and Dr. Spence came by Scheel's office. Spence's first comment was that he didn't want to get between Scheel and Petitioner. Spence also indicated that Petitioner felt the new position was demeaning. In his deposition (Exhibit 5) Dr. Spence does not recall making these comments, however, Dr. Spence's deposition is remarkable by his inability to recall any event in which he participated relevant to these proceedings. A second letter from Dr. Spence dated October 11, 1990 (Exhibit 18) advised that Petitioner would be able to return to work on November 5, 1990.

    
    

12. When Scheel broached the subject of the Sterile Reprocessing Coordinator position at a staff meeting and that she was proposing Petitioner for that position several members present expressed comments to the effect that Petitioner would never accept the position as she would find it demeaning. Rumors of others expressing the same opinion also reached Scheel. This,plus her earlier experience with Petitioner,convinced Scheel she would continue to have problems with Petitioner so long as she was in the Surgical Services Division.

    
    

13. During Petitioner's absence rotation of the regular O.R. nurses to be charge nurse on the 3-11 shift proved quite satisfactory and the position of Team Leader formerly held by Petitioner was abolished and has not been reestablished.

    
    

14. After talking to Dr. Spence and before Petitioner's laminectomy, Scheel decided that she did not want Petitioner in the Surgical Services Division. The new position of Sterile Reprocessing Coordinator was advertised for applications. Petitioner did not submit an application and was not again considered for this position. Jerry Price transferred from operating room technician to this new position.

    
    

15. LRMC has a leave of absence policy (Exhibit 6) which provides that employees may be approved for an absence due to a non-work related injury for a maximum of six months and upon return within that maximum six months approved period every effort will be made to return the employee to the first available job vacancy for which the employee is qualified. This policy further provides that employees granted a leave of absence will schedule an appointment for an exit interview before the leave begins. Petitioner made no such appointment and her Terminal Evaluation Form was not completed until February 2, 1991 (Exhibit 3).

    
    

16. After receipt of notification that Petitioner would be able to return to work November 5, 1990 Scheel left a message with Petitioner that she wanted to see Petitioner before she reported back to work.

    
    

17. On October 19, 1990 Petitioner met with Scheel at which time Scheel told her she would not be returning to the job as Team Leader on the 3-11 shift as that job had been abolished and that there was no other position available in the Surgical Services Division. Scheel suggested that Petitioner see Elizabeth

    Allen, the Coordinator of Nursing Recruitment, who maintained records of all nurse vacancies at LRMC. At no time did Scheel indicated that Petitioner's back surgery had any effect on her decision, nor did Petitioner question that her temporary disability from the surgery would have any effect on her ability to perform the work associated with the Sterile Reprocessing Coordinator position or any nursing position.

    
    

18. At Petitioner's meeting with Allen, Petitioner was told of several vacancies at LRMC but Allen questioned Petitioner's qualifications for these jobs due to her uninterrupted 19 years as an operating room nurse. No comment was made regarding Petitioner's physical ability to perform any job because of her recent back surgery and it is evident that neither Petitioner nor Allen considered this to be a factor. Petitioner did not submit an application for any job at LRMC for which there was a vacancy. Accordingly, she was not interviewed or considered for any of those vacant positions. Allen testified that, until she receives an application, she reaches no finding regarding an applicant's qualifications.

    
    

19. Petitioner applied for unemployment benefits after the October 19, 1990 meeting and LRMC did not contest this application. Betty Poole, manager of Human Resources at LRMC, was Respondent's employee in charge of contesting claims for unemployment compensation. Poole did not contest the claim because she was aware that there was no job available for Petitioner in Surgical Services, that Petitioner had been a long time employee of LRMC and that she had been in a management position.

    
    

20. Further, during the period Petitioner was on leave of absence, LRMC continued its contribution to Petitioner's health insurance and, after Petitioner was dropped from the payroll and her contribution could no longer be deducted from her pay, accepted Petitioner's contributions to her health insurance policy.

    
    

21. Although someone at LRMC was remiss in not earlier completing a Terminal Evaluation Form before Scheel prepared one on February 2, 1991, this date was accepted by LRMC as Petitioner's termination date and the commencement of the one year period in which petitioner could continue her insurance benefits under COBRA. This error in Petitioner's termination date was clearly to Petitioner's benefit as LRMC continued to contribute to Petitioner's health insurance and delayed the commencement of the one year in which Petitioner could continue to participate in LRMC's group health policy.

    
    

22. LRMC has a long standing policy against discrimination in employment. Several witnesses testified to having been absent for various non-work related disabilities for period of less than six months and of returning to work at the expiration of the leave. At least two employees at LRMC have undergone lumbar laminectomies, returned to work and are presently employed at LRMC. Petitioner, who has been employed at LRMC for some 19 years testified that she had never seen a case of handicap discrimination at LRMC or, for that matter, any other form of unlawful discrimination.

    
    

23. Not a scintilla of evidence was presented that the failure of LRMC to reemploy Petitioner when she was pronounced physically fit to return to work following the lumbar laminectomy was in any wise affected by any perceived handicap that might result from such surgery. Petitioner testified that she has no handicap following the back surgery and this testimony was not questioned or contradicted.

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Section 760.10(1), Florida Statutes, makes it an unlawful practice for an employer to discriminate against an employee because of that person's handicap. Chapter 760, Florida Statutes is patterned generally after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e et seq. (Title VII)

    Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (Fla.

    1985).

    
    

26. 42 USC Section 2000e et seq. covers discrimination in employment by reason of age, sex, marital status, national origin, etc. but handicap discrimination in the federal system is found under 29 USC Section 793, 794.

    
    

27. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonald Douglas Corp. v. Green, 411 US 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

    
    

28. McDonald Douglas places upon the Petitioner the initial burden of proving a prima facie case of discrimination. In a failure to hire case the petitioner must prove 1) that she belongs to a protected group; 2) that she was qualified for the job for which the employer was seeking applicants; 3) that she was rejected despite her qualifications; and 4) that after rejection, the position remained open and the employer continued to seek applicants with Petitioner's qualifications. McDonald Douglas Corp. v. Green at 802.

    
    

29. Where handicap discrimination is alleged the Petitioner must show: 1) that she belongs to the protected group (handicapped); 2) that despite the handicap she is qualified for the job; 3) that she was rejected despite her qualifications; and 4) that after her rejection the job remained open or was filled by someone in an unprotected class.

    
    

30. Petitioner here makes no claim that she suffered from a handicap and no evidence was presented that Respondent perceived Petitioner to have any physical handicap resulting from the back surgery.

    
    

31. No evidence was submitted or proffered that Petitioner's back surgery had any relevance whatsoever to the failure of Respondent to return Petitioner to the position of O.R. Team Leader on the 3-11 shift. That position was abolished while Petitioner was on leave of absence and has never been refilled. The Team Leader function has been performed by rotating O.R. nurses at lower pay and less responsibility. Accordingly, Petitioner's case rests upon the allegations that she was not hired for the newly created position of Instrument Reprocessing Coordinator because of a perceived physical disability brought on the by the lumbar laminectomy.

    
    

32. No evidence was presented remotely indicating that Margaret Scheel failed to select Petitioner for the Instrument coordinator position because Scheel believed Petitioner's potential back problem would interfere with or

    adversely affect her ability to carry out the duties of this position. Furthermore, Petitioner never applied for this position when it was advertised.

    
    

33. No pattern of discrimination by Respondent was shown. In fact, Petitioner has never seen any evidence of unlawful discrimination at LRMC during the 19 years she has worked there. Further, at least two current employees at LRMC have undergone lumbar laminectomies and returned to work without any dimunition in their work output.

    
    

34. Considering all evidence presented Petitioner has failed to prove: 1) that she has a handicap or that Respondent perceives Petitioner to have a handicap; and 2) that she ever filed an application for the position of Instrument Reprocessing coordinator when the position was advertised.

    
    

35. Since Petitioner has failed to establish a prima facie case of discrimination by reason of her perceived handicap, the burden never shifted to Respondent to articulate some legitimate non-discriminatory reason for the challenged employment decision. Texas Department of Community Affairs v. Burdine at 257.

    
    

36. Even if the evidence established a prima facie case of handicap discrimination, Respondent has articulated legitimate business reasons for its failure to transfer Petitioner to the position of Instrument Reprocessing Coordinator and for abolishing the Team Leader position on the 3-11 shift.

    
    

37. From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that she was discriminated against in employment by LRMC by reason of a handicap or a perceived handicap.

RECOMMENDATION

It is RECOMMENDED that a Final Order be entered dismissing Beverly Cooper's Petition for Relief from an unlawful employment by LRMC by reason of handicap.

DONE and ORDERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 31st day of December, 1992.

APPENDIX

Proposed findings submitted by Petitioner are accepted except as noted below. Those proposed findings neither included in the Hearing Officer's findings nor noted below were deemed unnecessary to the conclusions reached.

1. Petitioner was in a leave without pay status at LRMC until the end of February 1991 during which time LRMC contributed to Petitioner's group health insurance policy. She was legally separated when her Terminal Evaluation Form was submitted 2-6-91 and approved 2-26-91. (Exhibit 3)

   
   

2. Petitioner was advised an application from her would be considered for the position of Director of Surgical Services.

1. Accepted as Petitioner's unrebutted testimony.

   
   

2. Scheel assumed her responsibilities as Surgical Services Director the date she reported for duty.

10. Accepted as Petitioner's testimony. Scheel's testimony and Exhibit 9 and

10 indicate the contrary to be true.

12. Second sentence rejected. Specific problems relating to complaints of staffing unfairness and hours were discussed.

14. No problems were documented during the period between November 1988 and March 28, 1989.

16. First sentence accepted as testimony of Petitioner.

18. Rejected. Memo regarding March 28, 1989 meeting between Petitioner and Scheel (Exhibit 9) was prepared within 24 hours of the meeting. Exhibit 10 was given to Petitioner April 10, 1989.

20. No additional problems were documented or testified to by any witness.

1. Second sentence word "refused" is rejected as beyond the authority of Dr. Lipinski.

   
   

2. Last sentence rejected. If Petitioner departed on leave May 2, 1989 and would not return until November 5, 1989 this exceeds the maximum time (6 months) allowed by Respondent's policy.

1. Last sentence rejected.

   
   

2. Rejected as not supported by credible evidence. Some placing of trays containing surgical instruments in autoclaves or other sterilizing chamber is obviously involved in this position but no evidence was presented from which a determination can be made that these trays would be "heavy" or require a lot of lifting.

1. Rejected. Scheel made the determination not to allow Petitioner to return to work in the Surgical Services Division after her talk with Dr. Spence. See HO #11.

   
   

2. Last sentence rejected as to qualifications for position. No evidence was submitted regarding specific qualifications either Petitioner or Price had for the Instrument Reprocessing Coordinator position.

1. Accepted. However, See HO #18.

   
   

2. Accepted as testimony of Petitioner.

40. Last sentence rejected. Danielson specifically denies making this comment and his testimony is deemed more credible than that of Petitioner and her husband.

41.-43. Rejected as irrelevant.

44.-46. Rejected insofar as it implies Petitioner's records were changed to cover up the failure to rehire her. Had Petitioner's termination been effective October 19, 1990 LRMC would not have continued contributing to Petitioner's group health policy after that date and her one year period in which she could continue to participate in the group health policy would have started on that date rather than in the month of February 1991.

1. Rejected. See 33 above.

   
   

2. Rejected as irrelevant. Judy Hackett underwent a lumbar laminectomy and subsequently resumed working as an OR nurse.

Proposed findings submitted by Respondent are accepted. Those not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

COPIES FURNISHED:

ROBERT F McKEE ESQ

YVELINE FRANCISQUE-PAUL ESQ KELLY McKEE HERDMAN & RAMUS PO BOX 75638

TAMPA FL 33675 0638

MARY LI CREASY ESQ ZINOBER & McCREA

201 E KENNEDY BLVD - STE 1750 TAMPA FL 33602

MARGARET JONES/CLERK

FLORIDA COMMISSION ON HUMAN RELATIONS BLDG F - RM 240

325 JOHN KNOX RD TALLAHASSEE FL 32302 4149

DANA BAIRD, ESQUIRE GENERAL COUNSEL

FLORIDA COMMISSION ON HUMAN RELATIONS BLDG F - RM 240

325 JOHN KNOX RD TALLAHASSEE FL 32302 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final

order in this case concerning agency 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

BEVERLY COOPER,

Petitioner,

1. EEOC Case No. n/a

   FCHR Case No. 91-1500 LAKELAND REGIONAL MEDICAL CENTER, DOAH Case No. 92-4042

   FCHR Order No. 93-025

   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 Beverly Cooper:

      
      

      Beverly Cooper, pro se 901 East Lemon Street Apartment C

      Lakeland, Florida 33801

      For Respondent Lakeland Regional Medical Center: Mary Li Creasy, Esquire

      Zinober & McCrea

      201 East Kennedy Boulevard Suite 1750

      Tampa, Florida 33602

   3. Preliminary Matters

      
      

      Beverly Cooper, 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 (1991), alleging that Lakeland Regional Medical Center, 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 in Lakeland, Florida, before DOAH hearing officer K.N. Ayers, who issued a Recommended Order of dismissal.

      
      

      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. Findings of Facts

      
      

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

      
      

   5. Conclusions of Law

      
      

      Paragraph #26 of the hearing officer's conclusions of law is stricken. This paragraph is not correct. It includes age as a protected basis under federal law, but it cites Title VII only. There is no citation to the Age Discrimination in Employment Act (ADEA), which is the federal law protecting against age discrimination.

      
      

      Further, we do not adopt the legal conclusion holding that Petitioner Cooper is not an individual with a handicap. The ruptured vertebrae, followed by surgery to correct it, means that Ms. Cooper does not enjoy, in some measure, full and normal use of her sensory, mental, or physical faculties. Accordingly, she is an individual with a disability within the meaning of Section 760.10, Florida Statutes (1991). See Fenesy v. G.T.E. Data Services, Inc., 3 F.A.L.R.

      1764A (FCHR 1981). On the other hand, the hearing officer is correct in holding that the evidence fails to establish handicap based prejudice as the reason for Respondent's employment decision.

      
      

      The overall application of law by the hearing officer is a correct disposition of this case. With the above noted adjustments incorporated, we adopt the hearing officer's conclusions of law.

      
      

   6. 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 November 1993, in Tallahassee, Florida.

Clerk of the Commission

Copies furnished to:

Beverly Cooper, pro se 901 East Lemon Street Apartment C

Lakeland, Florida 33801 and

Robert F. McKee, Esquire

Yveline Francisque-Paul, Esquire KELLY McKEE HERDMAN & RAMUS

Post Office Box 75638 Tampa, Florida 33657-0638

Mary Li Creasy, Esquire ZINOBER & McCREA

201 East Kennedy Boulevard Suite 1750

Tampa, Florida 33602

K.N. Ayers, DOAH Hearing Officer Harden King, Legal Advisor

Docket for Case No: 92-004042

Orders for Case No: 92-004042