STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE H. CRAMER, )

)

Petitioner, )

vs. ) CASE NO. 94-1260

) CARDIO-PULMONARY CENTER OF ) BETHESDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on June 30, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Gary Issacs, Esquire

Issacs & Yeargin, P.A.

One Clearlake Centre, Suite 1401

250 Australian Avenue South West Palm Beach, Florida 33401

For Respondent: Michael W. Casey, III, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.

First Union Financial Center

200 South Biscayne Boulevard, Suite 3600 Miami, Florida 33131

STATEMENT OF THE ISSUES

Whether Respondent violated Section 760.10(1), Florida Statutes, when it discharged Petitioner.

PRELIMINARY STATEMENT

On February 22, 1994, Petitioner, Diane H. Cramer (Cramer), filed a Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations, alleging that Respondent, Cardio-Pulmonary Center of Bethesda (Center), discharged/discriminated against her because of a handicap. The petition was forwarded to the Division of Administrative Hearings for assignment to a hearing officer on March 10, 1994. The final hearing was scheduled to commence on June 30, 1994.

At the final hearing Cramer testified in her own behalf and called Randy Colman as a witness. Portions of the deposition of Dr. Veronica R. Motiram were entered into evidence. Petitioner Exhibits 1-9, 13, 14-16, 19, 24, 27, 28, 37,

and 38 were admitted into evidence. Respondent called Kent Goby as a witness. Respondent Exhibits 1 and 2 were admitted into evidence.

At the final hearing the parties agreed that the issue of back pay would not be litigated at this hearing. The parties stipulated to the facts contained in paragraphs 1-5 of Section E of the prehearing stipulation.

At the final hearing the parties agreed to file proposed recommended orders within 26 days of the filing of the transcript. The transcript was filed on July 15, 1994. On August 10, 1994, Petitioner filed a Motion for Extension of Time, requesting that the time for filing proposed recommended orders be extended until August 17, 1994. The motion was granted. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Cardio-Pulmonary Center of Bethesda, Inc. (Center), operates a Health and Fitness Center in conjunction with Bethesda Memorial Hospital located in Boynton Beach, Florida. On or about December, 1988, three separate business entities operated at the Health and Fitness Center: the Cardio-Pulmonary Center, a Fitness Department open to the general public, and a Sports Medicine and Back Care Center.

   
   

2. Petitioner, Diane H. Cramer (Cramer), was hired by the Center as a secretary/receptionist on or about December 19, 1988.

   
   

3. Cramer suffers from chronic depression caused by a chemical imbalance. When she is not in crisis she is highly functional; however when she is in crisis, there is criteria for a major depressive disorder which affects her ability to function normally in her day-to-day activities.

   
   

4. For the entire length of Petitioner's Employment with the Center, Randy Colman (Colman) held the position of Director of the Cardio-Pulmonary Center. Colman was Cramer's immediate supervisor from December 1988 through September, 1991.

   
   

5. In approximately August 1989, Cramer was promoted to the newly-created position of Office Manager based on her good job performance. Her duties included supervision of the office staff of the Cardiac Rehabilitation Department and the Sports and Back Care Center.

   
   

6. Cramer's work performance continued to be satisfactory until early January, 1990. She broke up with her boyfriend and began to experience bouts of depression in which she would feel sad and angry and would isolate herself from others. She had contemplated suicide and told her co-workers about her suicidal thoughts. She would put her head down on her desk. When Colman would ask her to do something, she would look at him as if to say "why are you asking me to do this." Her emotional behavior had escalated to the point that it was affecting the performance of her co-workers.

   
   

7. On January 19, 1990, Colman gave Cramer a memorandum outlining his concerns. He suggested that she speak to someone who was qualified in crisis management and depression and that she take a few days off. In response to Cramer's complaints to Colman that she lacked private space and private time at work, he suggested that she try a different work schedule which would allow her some privacy in her current work space. Additionally, he advised her that if

   she could not become more considerate and cordial to her co-workers that he would require her to take some time off and visit the employee health nurse before returning to work. Colman discussed these concerns as well in a conversation with Cramer on January 19, 1990.

   
   

8. Cramer followed Colman's suggestion and took some leave time. When she returned from leave, she had improved and her work performance was satisfactory. Cramer did try the different work schedule suggested by Colman in his January 19, 1990 memorandum but she went back to her old work schedule. She did not seek any counseling in January, 1990.

   
   

9. In June, 1990, Cramer experienced another bout of depression. On June 25, she had told Ken Goby (Goby), a co-worker, that she was depressed and that if she did not come into work the next day, it would be because she had killed herself. Goby relayed his conversation with Cramer to Colman.

   
   

10. On June 26, Colman met Cramer at the entrance of the building and told her that he was concerned about her well-being. He gave her a memorandum which outlined his expectations of her work performance. Additionally, he advised her that she was suspended without pay until such time as she saw the employee health nurse, Ruth Tillman. He gave her an appointment time with Ms. Tillman. If she chose not to see the nurse, she was advised to sign the resignation form which was included with the memorandum.

    
    

11. Cramer did see Nurse Tillman. As a result of her conversation with the nurse, Cramer went to see her endocrinologist, who referred her to Dr. Tomelleri. She saw Dr. Tomelleri on July 5. Cramer began taking medication and returned to work. Colman spoke with Nurse Tillman after her visit with Cramer and he was satisfied that Cramer could return to work.

    
    

12. Having judged the credibility of the witnesses, I find that when Cramer returned to work she did not advise either Colman or Kathy Vredenburgh that she had seen a doctor, that she was diagnosed as being depressed, or that she was taking medication. However, the evidence is clear that Colman knew that Cramer was having emotional problems, which he judged to be depression.

    
    

13. From the time she returned to work in July, 1990 until the early part of January, 1991, Cramer's work performance was satisfactory. Her mood swings were no different from any of the other employees at the Center. In the fall of 1990, Cramer received a seven percent merit increase and a .5 percent bonus raise.

    
    

14. Beginning in January, 1991, Cramer began to come to work in a bad mood several times a month. She had a "snitty" way of dealing with her co-workers and the patients. She did not make any suicide threats.

15 In January, 1991, Cramer complained to Ken Goby that Colman was giving all his work responsibilities away and that they were doing all his work. Mr. Goby told Colman what Cramer had said.

1. Based on Dr. Tomelleri's notes, Cramer had quit taking her medication sometime in January, 1991. She went back on her medication in late January, 1991. She was doing well when she next saw Dr. Tomelleri in March, 1991. Based on Dr. Tomelleri's notes, Cramer would do well as long as she continued to take her medication.

2. In September, 1991, Colman was granted additional managerial responsibilities at the Center, and Kathy Vredenburgh was made Cramer's immediate supervisor. Colman and Ms. Vredenburgh conducted a performance evaluation of Cramer in September, 1991. Cramer was given a low rating.

   
   

3. In November, 1991, one of Cramer's co-workers was having personal problems and asked Cramer if she could use the telephone in Cramer's office for a personal phone call. Cramer let her use the telephone; however, the co- worker's conversation dragged on and Cramer asked her to get off the phone so that Cramer could get back to her desk. Cramer got angry and threw a piece of paper. On November 29, 1991, Cramer received a reprimand for the incident and was cautioned that emotional outbursts, visible sulking, and performance of non- work related functions was not acceptable behavior and would not be tolerated.

   
   

4. Prior to the issuance of the reprimand, Colman and Ms. Vredenburgh discussed Cramer's behavior. Based on Ms. Vredenburgh notes, it is clear that she was not aware that Cramer was currently being seen by a psychiatrist.

   
   

5. In December of 1991 or January of 1992, Cramer got into an argument with a patient over some medical records. Cramer raised her voice at the patient.

   
   

6. In April of 1992, Kent Goby became Cramer's immediate supervisor.

   
   

7. Cramer was certified to teach SALSArobics, which is modified low impact aerobic exercises set to Latin music and movements. In October, 1991, she approached Colman with a proposal to introduce the program at the Center. By memorandum dated November 15, 1991, she followed up a meeting with Colman concerning her proposal and addressed several questions that he had concerning

   the program. Colman gave her his written comments on November 25, 1991. Cramer wanted to be the instructor of SALSArobics.

   
   

8. On June 5, 1992, Goby and Cramer had a conversation concerning the SALSArobics. Cramer told Goby that Colman had been very negative about the program. She stated that if Colman did not appreciate all the work and research that she had done then, "The hell with him." On the following Monday, June 8, Goby again spoke with Cramer about SALSArobics. Goby told Cramer that he would be meeting with the Center's exercise instructor to discuss the possibility of starting the program. Cramer told Goby that she felt that the fitness center probably was worried about her influencing members from existing aerobic classes and that she would not want anyone else to teach SALSArobics. She told Goby "screw them."

   
   

9. On June 9, Goby relayed his conversations with Cramer about SALSArobics to Colman.

   
   

10. Based on the Center's records, and notes of Goby, Cramer was late three times in March, 1992, and twice in May, 1992. It is not clear why she was late in March. Her tardiness in May resulted from oversleeping on one occasion and a back ache caused by her bed on the other occasion. Cramer came to work late on June 9, 10, and 11. The evidence did not establish that she was late on these days because of her depression. Sometime during the week of June 9, 1992, Cramer made comments to Colman regarding her tardiness. Once she told him that she could not understand "how people get to work on time." On another occasion, when he observed her walking in late, she told him that she was "always" late. She did not advise Colman that her tardiness was due to her depression.

11. Cramer's employment was terminated on or about June 11, 1992, due to "inappropriate job performance, i.e. tardiness, emotional outbursts, and general attitude towards the center and [her] co-workers."

    
    

12. Cramer was not in a crisis situation during the time of the occurrence of the circumstances which led to her discharge. Based on the medical records prepared by Dr. Tomelleri, Cramer saw him in March, 1992 and did not visit him again until July 17, 1992.

    
    

13. Cramer's claim for unemployment compensation benefits was refused by an Appeals Referee. The Appeals Referee concluded that Cramer was terminated for misconduct connected with her work. The decision of the Appeals Referee was affirmed by the Florida Unemployment Appeals Commission and by the Florida Fourth District Court of Appeal.

    
    

14. Cramer filed a timely charge of discrimination with the Florida Commission on Human Relations. Cramer's charge alleged that she was "laid off" because of a perceived handicap, severe depression.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. At the final hearing , Petitioner had requested certain portions of the deposition of Dr. Veronica R. Motriam be admitted in evidence. Ruling was reserved on the request. Those portions of the deposition of Dr. Motriam are admitted in evidence.

    
    

17. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to:

    
    

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment,

    because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

18. In handicap discrimination cases based on Section 760.10, the courts look to Section 504 of the Rehabilitation Act of 1973 for guidance in resolving the claims. Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994).

    
    

19. In Brand the Court in a footnote discussed the three classes of cases that may arise under the Rehabilitation Act as set forth in Barth v. Gelb, 2 F.3d 1180 (D.D.C. Cir. 1993).

    
    

    Barth identifies three classes of cases arising under the Rehabilitation Act: First, one in which the employer contends the employment decision was made for reasons unrelated to the person's handicap; second, one wherein the employer contests the plaintiff's claim that he or she is a qualified

    handicapped person who, with reasonable accommodation,

    can perform the essential functions of the job in question; and third, one in which the employer asserts it is unable to provide the accommodation necessary because it would impose an undue hardship

    on its operations. Only the first category is subject to the Burdine analysis; the Rehabilitation Act's own criteria apply to the last two classes. . . .

    
    

20. In the instant case, the Respondent is claiming that its decision to discharge Cramer was made for reasons unrelated to her handicap. Additionally, Respondent argues that no competent substantial evidence was presented to establish that Cramer had a handicap. Thus, pursuant to the formula set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981), the employee has the initial burden of establishing a prima facie case of discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been the victim of intentional discrimination. Id. 450 U.S. at 252-257, 101 S.Ct. at 1093-95, 67 L.Ed.2d at 215-17.

    
    

21. To establish a prima facie case of discriminatory discharge, the Petitioner must establish each of the following elements: 1) that she is handicapped; 2) that she was otherwise qualified for the job; and 3) that she was discharged.

    
    

22. Under the Florida Human Rights Act of 1977, "handicap" is defined as follows:

    
    

    Generally, handicap connotes a condition that prevents normal functioning in some way; a person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental

    or physical faculties.

    
    

    Kelley v. Bechtel Power Corp., 633 F. Supp. 927, 932 (S.D. Fla. 1986).

    
    

23. Cramer has established a prima facie case of discrimination based on handicap. She has established that she has a handicap, depression, and that Colman perceived that she was depressed. She has established that she is otherwise qualified for the job. She has established that she was discharged.

    
    

24. The Center has articulated nondiscriminatory reasons for her discharge. Cramer had been late for work on several occasions. Based on the

    evidence presented, her tardiness was not a result of her depresssion. Cramer had been rude to co-workers and to clients. Cramer had made disparaging remarks concerning the Center and Colman to Goby. The evidence did not establish that her derogatory remarks were a result of an episode of depression. Thus, the Center established legitimate nondiscriminatory reasons for her discharge.

    
    

25. Cramer has failed to demonstrate that the reasons articulated by the Center for discharging her were pretextual. She was fired not because of her depression but because she was late, rude to clients and co-workers, and her attitude was not conducive to the team concept that Colman was trying to establish at the Center.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Cardio-Pulmonary

Center of Bethesda, Inc. did not commit an unlawful employment practice and that Diane H. Cramer's Petition for Relief from an Unlawful Employment Practice be dismissed.

DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 17th day of November, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1260

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted.

2. Paragraphs 4-5: Accepted in substance.

3. Paragraph 6: The second half of the first sentence is rejected as subordinate to the facts actually found.

   The remainder of the paragraph is accepted in substance.

4. Paragraphs 7-12: Accepted in substance.

5. Paragraph 13: The first sentence is accepted in substance. Having judged the credibility of the witnesses, I reject the second sentence.

6. Paragraphs 14-17: Accepted in substance.

7. Paragraph 16: Rejected as subordinate to the facts actually found.

8. Paragraph 17: Rejected to the extent that it implies that Cramer was deliberately excluded by her co-workers. Having judged the credibility of the witnesses, the evidence established that Cramer had been invited to go to lunch but had declined because of lack of money.

9. Paragraphs 18-20: Rejected as subordinate to the facts actually found.

10. Paragraph 21: Having judged the credibility of Cramer, I reject the first part of the sentence as not credible. The second part of the sentence is accepted in substance to the extent that Cramer did have episodes of depression.

11. Paragraph 22: Having judged the credibility of Cramer, I reject this paragraph as not supported by credible evidence.

12. Paragraph 23: Rejected as subordinate to the facts actually found.

13. Paragraph 24: Accepted in substance to the extent that it refers to the time of discharge. The evidence is clear that Cramer had received warnings during her employment with the Center concerning her tardiness and her dealings with co-workers and clients.

14. Paragraphs 25-31: Accepted in substance.

15. Paragraphs 32-41: Rejected as subordinate to the facts actually found.

16. Paragraphs 42-44: Accepted in substance.

17. Paragraph 45: Accepted to the extent that the statement is generally true. Rejected to the extent that it implies that the tardiness that resulted in part in Cramer's discharge were caused by her depression.

18. Paragraphs 46-48: Accepted in substance.

19. Paragraphs 49-53: Accepted in substance to the extent Ms. Vredenburgh felt that Cramer had emotional problems which should be addressed in counseling.

20. Paragraph 54: Accepted in substance.

21. Paragraphs 55-61: Rejected as subordinate to the facts actually found.

22. Paragraph 62: Accepted in substance.

23. Paragraph 63: Rejected as subordinate to the facts actually found.

24. No Paragraph 64

25. Paragraphs 65-71: Accepted in substance.

26. Paragraph 72: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found.

27. Paragraphs 73-75: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraph 2: Accepted in substance.

3. Paragraph 3: Rejected as unnecessary.

4. Paragraphs 4-8: Accepted in substance.

5. Paragraph 9: The second sentence is rejected to the extent that it implies that Colman did not perceive that Cramer had emotional problems. The remainder is accepted in substance.

6. Paragraph 10: Accepted in substance.

7. Paragraph 11: Rejected as unnecessary.

8. Paragraphs 12-19: Accepted in substance.

9. Paragraphs 20-21: Rejected as recitation of testimony.

10. Paragraphs 22-28: Accepted in substance.

11. Paragraph 29: The first two sentences are accepted in substance. The last sentence is rejected as constituting argument.

12. Paragraph 30: Accepted in substance.

13. Paragraph 31: Rejected as unnecessary.

14. Paragraphs 32-39: Accepted in substance.

15. Paragraph 40: The first and third sentences are rejected. Based on Colman's memoranda, I find that he did know that she had some emotional problems. The second sentence is accepted in substance. The last sentence is accepted in substance to the extent that there was no competent substantial evidence to indicate that Goby did have knowledge of Cramer's condition, psychiatric visits or medication.

16. Paragraph 41: Accepted.

COPIES FURNISHED:

Elizabeth S. Syger, Esquire Michael W. Casey, III

First Union Financial Center, Suite 3600

200 South Biscayne Boulevard Miami, Florida 33131-2338

Gary A. Isaacs, Esquire One Clearlake Centre

250 Australian Avenue South Suite 503

West Palm Beach, Florida 33401

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Commission on Human Relations

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 this recommended order. All agencies allow each party at least ten 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.

Docket for Case No: 94-001260

Orders for Case No: 94-001260