STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE BRETTELL, )

)

Petitioner, )

)

vs. ) Case No. 00-0534

) JOSEPH L. MORSE GERIATRIC CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 2000, at West Palm Beach, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joyce Brettell, pro se

3743-4 Silver Lace Lane Boynton Beach, Florida 33436

For Respondent: Lynn G. Hawkins, Esquire

Fitzgerald, Hawkins, Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the basis of physical handicap.

PRELIMINARY STATEMENT

On or about May 21, 1999, Petitioner, Joyce Brettell (Brettell) filed a Charge of Discrimination with the Palm Beach

County Office of Equal Opportunity. Brettell amended her charge of discrimination on or about August 16, 1999. In her original charge of discrimination, Brettell alleged that Respondent, Joseph L. Morse Geriatric Center (Morse), had harassed her on April 23, 1999, because of a disability. In her amended charge, she added the allegation that on May 5, 1999, she was terminated from her position as a Nursing Unit Coordinator after one year and four months of employment. On October 25, 1999, the Palm Beach County Office of Equal Opportunity issued a Determination that there were no reasonable grounds to believe that a violation of the Americans with Disabilities Act or the Palm Beach County Ordinance had occurred. By letter dated November 18, 1999, Brettell's counsel at the time provided to the Florida Commission on Human Relations (Commission) a copy of the Determination of No Reasonable Grounds by the Palm Beach County Office of Equal Opportunity and requested an administrative hearing pursuant to Section 760.11(7), Florida Statutes. The Commission treated Brettell's letter of November 18, 1999, as a Petition for Relief and transmitted the case to the Division of Administrative Hearings for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge Linda Rigot, but was transferred to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

At the final hearing, Brettell testified in her own behalf and called Esther Miller and Diane Pollock as her witnesses.

Petitioner's Exhibits 1 and 2 were admitted in evidence. Respondent presented the testimony of Suzanne Richardson, Vicky Porter, Leonie Whorms, Penny Martin, and Terri Nichols.

Respondent offered no exhibits.

The parties agreed to file their proposed orders within 30 days of the filing of the Transcript, which was filed on

October 6, 2000. Petitioner filed her proposed recommended order on November 6, 2000, and Respondent filed its proposed recommended order on November 3, 2000. The parties' proposed recommended orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was.

2. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999.

3. The Notice of Action/Change issued on February 18, 1999, stated:

   Employee was placed at maximum medical improvement with a 6% permanent impairment

   rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99.

   
   

4. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment.

5. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement:

   [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems.

   
   

6. Brettell did not establish that she had a disability or a handicap.

7. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents.

8. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one

   of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications.

9. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged

   Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart.

10. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999.

11. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find

    her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement.

12. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement.

13. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m.

14. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned.

15. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose

    garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break.

16. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived.

17. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department.

18. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties.

19. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation.

20. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her.

21. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either

    Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer.

    Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department.

22. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone.

23. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home.

24. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 760.11, Florida Statutes.

26. Brettell claims that she was harassed and terminated from her employment with Morse because of a disability or handicap.

27. Subsection 760.10(1)(a), Florida Statutes, provides:

    
    

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

       1. To discharge or 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 an individual's race, color, religion, sex, national origin, age, handicap, or marital status.

28. It is appropriate to interpret Subsection 760.10(1)(a), Florida Statutes, by reference to federal case law under the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).

29. Brettell must prove the following in order to establish a prima facie case of handicap discrimination:

    1. She is handicapped within the meaning of the statute;

    2. She was otherwise qualified for her job; and

    3. She was harrassed or terminated because of her handicap.

    Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).

30. Section 760.10, Florida Statutes, does not define "handicap." In Brand, supra, the court adopted the definition of handicap found in Section 504 of Title V of the Rehabilitation Act of 1973 and stated:

    Section 504 specifically refers to 29

    U.S.C. Sec. 706(8)(B) for the definition thereof. The latter defines an "individual with handicaps," subject to certain exceptions not applicable to this case as one "who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Examples of major life activities include caring for oneself, walking, seeing, speaking, breathing, learning, and working.

    Id. at 510, FN 10.

    
    

31. The same definition of disability is set out in the Americans with Disabilities Act. In Gordon v. E. L. Hamm & Associates, Inc., 100 F. 3d 907, 911 (11th Cir. 1996), the court discussed the meaning of "major life activities" and "substantially limits" under American with Disabilities Act. The court stated:

    While the ADA defines neither "major life activities" nor "substantially limits," courts may rely upon the regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") for guidance. See 42 U.S.C. [Section]12116 (requiring the EEOC to issue regulations to implement Title I of the ADA); Dutcher, 53 F.3d at 726. The ADA regulations adopt the definitions of "major life activities" found in the

    Rehabilitation Act regulations. See 34

    C.F.R. [Section]104. The term is defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. [Section] 1630.2(i). In this regard, the EEOC has provided that courts should consider the following three factors when determining whether an impairment substantially limits a major life activity: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the expected permanent or long term impact of or resulting from the impairment.

32. Based on the limited evidence she presented, Brettell has not established that she has a handicap. She complains that she has difficulty walking, but she does not elaborate on the difficulty, nor the cause for the difficulty. She also says that she has been losing feeling in her hands, arms, and fingers, but goes no further in establishing to what extent this loss affects her major life activities. She claims that she has cervical spine problems, but presents no medical evidence of the nature of the problem and no evidence as to how it affects her major life activities.

33. Brettell presented two documents from the Division of Workers' Compensation, but the documents only established that as of March 15, 1999, Brettell was no longer entitled to impairment income benefits and was put on temporary disability status.

    There is no indication of the nature of the disability and whether it substantially limits one of Brettell's major life activities.

34. The evidence failed to established that Brettell was harrassed or terminated because of a disability. Her termination was for insubordination and had nothing to do with any physical or mental impairment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination.

DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000.

COPIES FURNISHED:

Joyce Brettell

3743-4 Silver Lace Lane Boynton Beach, Florida 33436

Lynn G. Hawkins, Esquire

Fitzgerald, Hawkins, Mayans & Cook, P.A.

515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401

Dana A. Baird, General Counsel Commission on Human Relations

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

Sharon Moultry, Agency Clerk 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 within 15 days from the date of 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: 00-000534

Orders for Case No: 00-000534