STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGENIA P. WALKER, )

)

Petitioner, )

)

vs. ) CASE NOS. 95-2852

) 96-0578

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Suzanne F. Hood, held a formal hearing in the above- styled case on May 10, 1996 in Quincy, Florida and on June 3, 1996 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Helen B. Burgess, Business Agent

AFSCME Council 79 Florida AFL-CIO

345 South Magnolia Drive, Suite A-13 Tallahassee, Florida 32301

For Respondent: Patrick Martin, Esquire

Janice Jennings, Esquire Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF ISSUES

Whether the Respondent discriminated against the Petitioner with respect to her employment because of her race, gender, or alleged disability in violation of Section 760.10(1)(a), Florida Statutes.

Whether the Respondent discriminated against the Petitioner with respect to her employment in retaliation for proceeding with this action, in violation of Section 760.10(7), Florida Statutes.

PRELIMINARY STATEMENT

On February 1, 1993, Petitioner Regenia Walker (Petitioner) filed a Charge of Discrimination against Respondent Florida State University (Respondent) with the Florida Commission on Human Relations (FCHR) in FCHR Case No. 93-0880.

Petitioner's claim alleged that Respondent discriminated against her because of her handicap and because she met with a FCHR representative to discuss the filing of a employment discrimination complaint.

On or about October 4, 1994, Petitioner filed a Charge of Discrimination against Respondent with FCHR in FCHR Case No. 94-8259. Petitioner's claim alleged that Respondent discriminated against her because of her race and because she filed complaints of employment discrimination against Respondent.

On March 20, 1995, FCHR issued a Determination of No Cause in FCHR Case No.

93-0880. Petitioner requested an extension of time to file a Petition for Relief which FCHR granted.

On May 18, 1995, Petitioner filed a Petition for Relief with FCHR in FCHR Case No. 93-0880. This petition alleged that Respondent discriminated against her because of her race, gender and disability.

FCHR issued a Notice To Respondent of Filing of Petition for Relief from an Unlawful Employment Practice in FCHR Case No. 93-0880 on June 1, 1995. This notice required Respondent to file an answer with FCHR within twenty days.

FCHR transmitted Petitioner's Petition for Relief in FCHR 93-0880 to the Division of Administrative Hearings (DOAH) on June 2, 1995. The Division of Administrative Hearings assigned the undersigned as hearing officer in DOAH Case No. 95-2852.

On June 26, 1995, the undersigned issued a Notice of Hearing scheduling DOAH Case No. 95-2852 for formal hearing on October 23, 1995. However, after hearing oral argument on October 20, 1995, the undersigned issued an order dated October 24, 1995 granting Respondent's Motion to Continue and Motion to Abate Proceedings. The primary reason for the continuance was to abate the proceedings until FCHR could transmit Petitioner's Petition for Relief in FCHR 94-8259 to the Division of Administrative Hearings for consolidation with DOAH Case No. 95-2852.

On November 3, 1995, FCHR issued a Determination of No Cause in FCHR Case No. 94-8259. On December 8, 1995, Petitioner filed a Petition for Relief with FCHR alleging that: (a) Respondent discriminated against her because of her race, gender and disability; and (b) Respondent terminated her employment because she filed a complaint in FCHR Case No. 93-0880.

Respondent filed a Status Report in DOAH Case No. 95-2852 on December 4, 1995, December 29, 1995 and January 31, 1996. Each of these reports requested continued abeyance of DOAH Case No. 95-2852 until FCHR transmitted Petitioner's claim in FCHR 94-8259 to the Division of Administrative Hearings.

FCHR transmitted Petitioner's Petition for Relief in FCHR Case No. 94-8259 to the Division of Administrative Hearings on January 31, 1996. The Division of Administrative Hearings assigned the undersigned as hearing officer in DOAH Case No. 96-0578.

On February 5, 1996, the undersigned issued an Order of Consolidation and Notice of Hearing. This order scheduled these consolidated cases for formal hearing on April 17, 1996.

On April 15, 1996, Respondent filed a Motion to Continue Hearing due to the unavailability of a witness. The undersigned granted this motion and rescheduled this matter for hearing on May 10, 1996.

On May 7, 1996, Petitioner filed an Affidavit signed by her proposed qualified representative, H.B. Burgess. For the past seventeen years, Ms.

Burgess has served as a Business Agent/Council Staff Representative for Council 79, AFSCME, AFL-CIO. She represented and assisted Petitioner with union grievances, agency work related complaints and the filings of Charges of Discrimination. The affidavit states that Ms. Burgess was familiar with the requirements for qualification as a personal representative and that she had observed the proceedings of the Division of Administrative Hearings on several occasions.

On May 8, 1996, Respondent filed a Unilateral Prehearing Statement.

Petitioner filed a Unilateral Prehearing Statement on May 10, 1996.

At the hearing on May 10, 1996, Petitioner stated her request for and acceptance and approval of her designated non-attorney representative. After further inquiry, the undersigned found Ms. Burgess qualified to represent Petitioner.

During the hearing on May 10, 1996, Petitioner testified on her own behalf and presented the testimony of one witness. She offered eleven exhibits which were received into evidence.

Respondent presented the testimony of three witnesses. Respondent offered twenty-three exhibits which were received into evidence.

There was insufficient time on May 10, 1996, to complete the formal hearing. Accordingly, the undersigned issued an order dated May 14, 1996, advising the parties that the proceeding would reconvene on June 3, 1996.

When the formal hearing reconvened on June 3, 1996, Petitioner testified in rebuttal on her own behalf. She also presented the testimony of one witness in rebuttal. Petitioner did not present additional exhibits at that time.

Respondent did not present the testimony of additional witnesses on June 3, 1996. However, Respondent offered three additional exhibits which were accepted into evidence.

On June 27, 1996, Respondent filed the deposition testimony of Robert Kimmel, as a post-hearing exhibit.

The transcripts of the May 10, 1996 hearing date were filed with the Division of Administrative Hearings on May 21, 1996. The transcripts of the June 3, hearing date were filed on July 8, 1996.

Respondent filed a motion for enlargement of time to submit a proposed recommended order on July 18, 1996. The following day, Petitioner filed a written request for additional time to file a proposed recommended order. By order dated July 23, 1996, the undersigned granted these requests.

Petitioner filed her proposed recommended order on July 30, 1996.

Respondent filed its proposed recommended order on July 31, 1996. The Appendix to this Recommended Order contains the undersigned's rulings on each of the parties' proposed findings of fact.

FINDINGS OF FACT

1. Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992.

2. Petitioner, a black female, began working for Respondent at the Thagard Student Health Center in May of 1990. Respondent hired Petitioner as a Word Processing Systems Operator and gave her duties and responsibilities commensurate with that position. At that time, Respondent gave Petitioner a copy of Respondent's disciplinary action policy.

   
   

3. On May 27, 1992, the Petitioner became ill at work. Her husband picked her up from work and took her to the doctor.

   
   

4. The Petitioner did not return to work due to a severe stress disorder which required treatment with mood stabilizers. Based on documentation from her doctors, Respondent granted Petitioner intermittent leave which allowed her to use her accumulated sick and annual leave. Petitioner's intermittent leave expired on July 16, 1992.

   
   

5. On or about July 24, 1992, Petitioner requested leave without pay effective from July 17, 1992 to September 25, 1992.

   
   

6. With her doctor's approval, Petitioner returned to work on September 28, 1992. Her supervisor eased her back into a work routine. He gave her minimal duties and allowed her time for re-orientation.

   
   

7. Petitioner's supervisor soon became aware that Petitioner was not as productive and efficient as she had been prior to her leave of absence. Most notable was Petitioner's inability to satisfactorily complete typing/word processing assignments. At least 80 percent of her duties involved typing or word processing.

   
   

8. Concerned about the Petitioner and her work performance, Respondent decided that further medical evaluation would be appropriate to determine if her mental or physical problems warranted a compulsory disability leave.

   
   

9. At its own expense, Respondent referred Petitioner to Dr. Munasifi, a psychiatrist, in October of 1992. In November of 1992, Respondent referred Petitioner to Dr. Dana Dennard, a psychologist. These examinations revealed that Petitioner had not recovered from her prior psychotic episode. She was vulnerable to another episode if she remained at work. Dr. Dennard recommended that Petitioner take at least six months off from work with follow-up therapy.

   
   

10. Respondent continued to have problems performing at work. She came to work late and left early. She did not call the office when she was absent. Her supervisor tried to counsel Petitioner but she continued to have unauthorized absences and to take excessive time for lunch without permission. As a result, Petitioner's pay was reduced on November 20, 1992 and December 7, 1992. Respondent gave her an oral reprimand on December 4, 1992 and a written reprimand on December 17, 1992.

    
    

11. As a result of the reports submitted by Dr. Munasifi and Dr. Dennard, Respondent placed Petitioner on compulsory disability leave on January 19, 1993. Respondent initially intended for this leave of absence to expire on February 17, 1993.

    
    

12. Petitioner filed her first complaint with the Florida Commission on Human Relations on February 1, 1993.

13. By letter dated February 17, 1993, Respondent advised Petitioner that she would be dismissed as of February 18, 1993 due to her physical inability to perform assigned duties.

    
    

14. Respondent rescinded its decision to dismiss Petitioner by letter dated February 26, 1993. Instead, Respondent extended Petitioner's compulsory leave without pay for an additional thirty days.

    
    

15. Respondent referred Petitioner to the Division of Vocational Rehabilitation on or about March 18, 1993. The purpose of this referral was to provide Petitioner with vocational counseling while she was on compulsory leave.

    
    

16. Respondent extended Petitioner's compulsory disability leave in 30-day increments through July 16, 1993.

    
    

17. Petitioner was able to return to work on July 23, 1993 after her attending physician certified that she was able to perform the essential functions of a Word Processing Operator without any need for reasonable accommodations. Her counselor at the Division of Vocational Rehabilitation also recommended that Petitioner return to work.

    
    

18. Upon her return to the office, Respondent gave Petitioner a written set of performance standards. Respondent reviewed these standards with Petitioner to specify exactly what was expected of her.

    
    

19. Petitioner's routine job responsibilities included word processing, filing, and mail distribution. Her word processing duties required her to type and format policy and procedure manuals which were being developed and/or updated.

    
    

20. It became immediately apparent to Respondent that Petitioner's job performance was not satisfactory. Her supervisor repeatedly had to edit her work and return it to Petitioner for corrections. Petitioner's supervisor counseled her regarding her unsatisfactory performance and began documenting his discussions.

    
    

21. Petitioner's substandard work performance continued, resulting in a below performance standard evaluation on September 21, 1993.

    
    

22. In October, Respondent recommended that Petitioner take refresher courses in word processing. Petitioner attended two of these sessions.

    
    

23. Despite Respondent's efforts to assist Petitioner in improving her job performance, she received a below performance standard evaluation on November 19, 1993 and January 11, 1994.

    
    

24. After the third consecutive below performance evaluation, Petitioner's supervisor requested that Respondent terminate Petitioner's employment due to her failure to correct her unsatisfactory job performance over a six-month period.

1. On February 3, 1994, Respondent removed Petitioner from the class of Word Processing Systems Operator and terminated her employment.

   
   

2. On October 4, 1994, Petitioner filed her second charge with FCHR.

3. There is no persuasive evidence that Respondent ever discriminated against Petitioner because of her race, gender, or disability. Likewise, there is no evidence that Respondent ever took any retaliatory action against Petitioner for filing charges alleging discrimination.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 760.10(1)(a), Florida Statutes, provides as follows:

   
   

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

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discrim- inate 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.

         
         

6. Section 760.10(7), Florida Statutes, makes it unlawful "to discriminate against any person because that person has opposed any practice which is an unlawful employment practice . . . or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing "

   
   

7. Petitioner failed to prove that Respondent unlawfully discriminated against her in violation of state and federal law.

   
   

8. Petitioner alleges that Respondent unlawfully discriminated against her on the basis of her race and gender. The procedure for establishing claims of discrimination is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.CT. 1817, 36 L.ED.2d 668 (1973). Pursuant to McDonnell, the employee has the initial burden of establishing a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1093 (1981). In this case, the Petitioner failed to establish a prima facie case because she failed to show that Respondent treated other similarly situated employees who are not members of a protected group in a different manner.

   
   

9. Assuming, arguendo, that the Petitioner established a prima facie case, Respondent produced evidence of a legitimate and nondiscriminatory reason for its action, i.e. Petitioner's failure to perform satisfactorily in her work. This evidence returned the burden to Petitioner to prove that Respondent's alleged legitimate, nondiscriminatory reasons were mere pretexts and that an illegal discriminatory reason motivated the Respondent. Burdine, 101 S.Ct. at 1093. Petitioner was unable to meet this ultimate burden of proof. Burdine,

   101 S.Ct. at 1093. There was no evidence that Respondent intentionally discriminated against Petitioner because of her race or gender.

   
   

10. The Petitioner also argues that the Respondent discriminated against her on the basis of a disability. In order for Petitioner to establish this claim of intentional discrimination, she must prove the following essential elements: (1) that she is a qualified person with a disability, who with or without reasonable accommodation, can perform the essential functions of the

    position; and (2) that Respondent terminated her because of her disability. White v. York Intern. Corp., 45 F. 3d 357, 360-361 (10th Cir. 1995).

    
    

11. Petitioner failed to present any evidence showing that she was disabled or that Respondent intentionally discriminated against her on the basis of a disability. To the contrary, Respondent terminated Petitioner because she failed to perform the essential functions of her position after medical and vocational rehabilitation evaluations indicated that she was able to return to her duties without reasonable accommodations.

    
    

12. Finally, Petitioner did not meet her burden of proving that Respondent's actions were in retaliation of her having proceeded with the charges of discrimination.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the petitions for relief from unlawful employment practices in DOAH Case Nos. 95-2852 and 96-0578.

DONE and ENTERED this 20th day of August, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD, Hearing Officer 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 20th day of August, 1996.

APPENDIX

CASE NOS. 95-2852 and 96-0578

The following constitutes the undersigned rulings on the parties proposed findings of fact.

Petitioner's Proposed Findings of Fact 1-2 Accepted in Preliminary Statement.

1. Rejected as not supported by competent evidence.

2. Accept that Petitioner is a black female within a protected class of citizens. Reject that she is disabled.

3. There is no persuasive record evidence that Petitioner applied for reassignment despite the availability of alternative positions.

4. Rejected as not supported by persuasive evidence. Record evidence indicates that Petitioner had full access to Respondent's files in these cases and did not request

   additional supporting documents.

5. Rejected as not supported by persuasive evidence.

6. Reject that Petitioner satisfactorily performed her work assignments and was terminated due to her race, gender or disability.

7. Rejected as not supported by competent evidence.

8. Rejected. See paragraph 6 above.

9. Rejected as not supported by persuasive competent evidence.

Respondent's Proposed Findings of Fact

Respondent's proposed findings of fact, numbers 1-25, are accepted in substance as restated in Findings of Fact, numbers 1-26, of thie Recommended Order.

COPIES FURNISHED:

Helen B. Burgess, Business Agent AFSCME Council 79 Florida AFL-CIO Suite A-13

345 South Magnolia Drive Tallahassee, Florida 32301

Patrick Martin, Esquire Janice Jennings, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Gerald Jaski, Esquire

Office of the General Counsel Florida State University

424 Wescott Building Tallahassee, Florida 32306-1612

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.

Docket for Case No: 95-002852

Orders for Case No: 95-002852