STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY ANN KERNEY,

Petitioner,

vs.

HIGHLAND COUNTY SCHOOL BOARD,

Respondent.

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) Case No. 00-4135

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RECOMMENDED ORDER

On March 8, 2001, a formal administrative hearing in this case was held in Sebring, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Ann Kerney, pro se

4524 Elm Avenue

Sebring, Florida 33870

For Respondent: John K. McClure, Esquire

Katharine B. Heyward, Esquire John K. McClure, P.A.

230 South Commerce Avenue Sebring, Florida 33870

STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of a handicap or disability.

PRELIMINARY STATEMENT

By Charge of Discrimination dated July 2, 1998, and filed with the Florida Commission on Human Relations (FCHR), Mary Ann Kerney (Petitioner) asserts that the Highlands County School Board (Respondent) discriminated against her on the basis of a disability. By Amended Notice of Determination dated August 7, 2000, the FCHR found "that there is no reasonable cause to believe that an unlawful employment practice has occurred."

By Petition for Relief filed with the FHCR on September 11, 2000, the Petitioner requested a formal administrative hearing. The Petition for Relief was transmitted to the Florida Division of Administrative Hearings on October 6, 2000.

The hearing was scheduled to commence on December 21, 2000.

At the request of the parties, the hearing was continued and rescheduled for January 24, 2001, and then, subsequently, rescheduled for March 8, 2001. The case was transferred to the undersigned Administrative Law Judge on March 2, 2001.

At the hearing, the Petitioner testified on her own behalf and presented the testimony of five witnesses. Petitioner's Exhibits numbered 1-11 were admitted into evidence. The Respondent presented the testimony of four witnesses, the deposition testimony of two witnesses, and had Exhibits numbered 1-6 admitted into evidence.

A Transcript of the hearing was filed on April 2, 2001. Both parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner became employed on an annual

   
   

   non-renewing contract as a paraprofessional at Park Elementary School during the 1993-94 school year.

2. The Petitioner was assigned to work in a classroom program for developmentally disabled preschool children. The children were three to four years of age and very active. There were between five to nine children in the classroom.

3. The Petitioner was generally assigned to work with two children and was responsible for monitoring their activity. She was also responsible for physically controlling the children and changing diapers when required. The substantial part of the workday was spent standing, bending, lifting, and moving about with the children.

4. The Petitioner continued her employment in the 1994-95 school year and received satisfactory evaluations.

5. During the 1995-96 school year, the Petitioner continued her employment as a paraprofessional. Although there is evidence that the Petitioner's job performance was of some concern to the class teacher and to the school principal, the Petitioner was not formally evaluated because her employment was

   interrupted as set forth herein. There is no evidence that anyone discussed the concerns with her or that she had an opportunity to remedy any alleged deficit in her job performance.

6. On January 2, 1996, the Petitioner was riding in a car being driven by her husband and was involved in an automobile accident when another driver struck the Petitioner's car.

7. The Petitioner was injured in the accident and was taken to a hospital where she was treated and released.

8. Subsequent to the accident, the Petitioner continued to have pain in her neck and sought treatment from a chiropractor. Eventually, the chiropractor referred the Petitioner to a neurologist in an attempt to determine the cause of the pain.

9. The medical professionals determined that the Petitioner's injuries were not permanent. The Petitioner's chiropractor described the pain as a "typical soft tissue injury" and eventually stopped treating the pain because the pain did not improve and was not supported by diagnostic testing. The Petitioner's neurologist opined that the neck pain was not a "disability."

10. The Petitioner returned to the school on February 14, 1996, and discussed her physical limitations with the school principal. She showed the principal a copy of a letter from her chiropractor to an insurer that stated that she was "able to

    work in a limited capacity . . . with a 15 pound limit" and that "she is to avoid excessive bending, stooping and standing."

11. The Petitioner asserts that the school principal told her to go home and return a week later. The Respondent asserts that the Petitioner informed the Principal that she could do the job but only under the restrictions set forth in the chiropractor's letter.

12. The evidence establishes that the discussion related to whether or not the Petitioner was able to return to work was centered on her ability to perform her responsibilities and that the Petitioner decided she was unable to return to work at that time and would return a week later.

13. By letter dated February 15, 1996, the School Board's personnel coordinator advised the Petitioner that she had used all of her sick leave and would not receive any additional pay until she returned to work. The letter suggested that she request an official leave of absence effective January 2, 1996, in order to permit her retirement benefits to be maintained because "time spent on an official leave of absence can be bought back by the employee from the Division of Retirement."

14. On February 21, 1996, the Petitioner contacted the school principal and informed him she would be unable to return on that day due to family matters.

15. On February 22, 1996, the Petitioner returned to the campus and spoke with the principal. The Petitioner told the principal she did not feel physically capable of working as a paraprofessional in the preschool classroom and asked him to provide her with other employment. The principal told the Respondent he did not have any open positions at the school for which she would be physically suited.

16. The principal was also concerned that because the Respondent was physically restricted from bending, stooping, and standing for an extended time, she would not be able to perform the responsibilities of her employment.

17. There is no evidence that on February 22, 1996, or at any time during the remainder of the 1995-96 school year, there were jobs available at the school that did not require physical activity beyond the Petitioner's abilities.

18. On February 26, 1996, the Petitioner contacted the school principal and said she wanted to take a leave of absence as suggested by the personnel coordinator. The principal believed there was a misunderstanding about the availability of the leave of absence to an annual contract employee and suggested that she speak to the personnel coordinator. The principal also called the coordinator and requested that he clarify the matter with the Petitioner.

19. On February 27, 1996, the personnel coordinator telephoned the school principal and said that the Petitioner had been informed that she was not eligible for a leave of absence and said that the Petitioner had suggested she would resign her employment.

20. On March 1, 1996, the Petitioner contacted the principal and said she wanted to apply for a leave of absence. The principal contacted the personnel coordinator who suggested that the Petitioner submit to the school superintendent a letter requesting the leave along with a copy of the chiropractor's letter and then let the superintendent decide whether or not he would recommend to the school board that her leave request be granted. The information was relayed to the Petitioner, who stated that she would submit the letter.

21. By letter dated March 7, 1996, the Petitioner relayed the events to the superintendent and requested "any consideration you can give in resolving this matter."

22. In the March 7 letter, the Petitioner writes, "[d]ue to the activeness of the children in this class the possibility of re-injuring myself is very high." She also advises that she informed the principal that the personnel coordinator suggested that she request the leave of absence and that the principal suggested that she write the letter to the superintendent. The Petitioner asserted that she would not resign from her position.

23. Attached to the March 7 letter were past evaluations, a March 6 letter "to whom it may concern" from her chiropractor restating the symptoms of her injury, and the February 15 letter she received from the personnel coordinator suggesting the leave of absence.

24. By letter dated March 19, 1996, the Petitioner referenced a March 15 meeting with the superintendent and states "[i]f there are no reasonable accommodations for a job replacement, I would like to request a medical leave of absence for the remainder of this year." She enclosed the letter from the chiropractor with the letter to the superintendent.

25. There appears to have been no response from the superintendent to the Petitioner's request for a leave of absence.

26. By letter dated June 4, 1996, the personnel coordinator responded to the request for leave of absence by stating that because the Petitioner was on an annual contract, the request for a leave of absence could not be granted. The letter also stated that due to a lack of funding, some employees would not be called back to work in the 1996-97 school year, and suggested that she should apply for a future vacant position "when you are again able "

27. According to the leave policy set forth in the school board's employment handbook, any employee may request a leave of

    absence. Such requests must be made at least seven days prior to the requested leave period except in the case of emergency when the request must be made "as soon as possible." The policy requires that the leave application be made in writing and on the form provided for such requests. The policy provides that the School Board "may grant leave, with or without pay."

28. The evidence fails to establish that the Petitioner followed the school system policy in requesting a leave of absence after her accident.

29. The Petitioner did not complete and sign a form requesting a leave of absence. The first written request to the school superintendent for a leave of absence was the letter of March 19, approximately 70 days after the accident.

30. The first time the issue of a leave of absence was verbally addressed by the Petitioner was on February 26, 1996, approximately 50 days after the accident, when she told the school principal that she wanted to take a leave of absence as suggested by the personnel coordinator in his letter of February 15.

31. The evidence fails to establish that the Petitioner has a handicap or disability as those terms are defined under applicable statutes and case law.

32. The evidence fails to establish that the Respondent discriminated against the Petitioner in any employment decision on the basis of a handicap or disability.

33. There is no credible evidence that the Petitioner filed a Request for Disability Accommodation at any time prior to the end of the 1995-96 school year.

34. For the remainder of the 1995-96 school year, a substitute teacher filled in for the Petitioner. The job remained open and available to the Petitioner through the end of the school year. The position was not filled on a permanent basis because school officials were uncertain about whether the Petitioner would be able to return for work.

35. Paraprofessional employees working for the Highlands County School System are employed as annual employees for the first three years. After successful completion of the third year, the paraprofessional becomes eligible for consideration for continuing contract employment.

36. An employee under an annual contract has no automatic right to re-employment. Continuing contract employment provides increased job security to an employee because termination of employment must be for "just cause" or when required by a "reduction in force." Continuing contract employees also receive preference over non-contract employees when workers are recalled after a reduction in force.

37. The successful completion of the third year does not guarantee that the paraprofessional will receive the continuing contract, but only provides that such employee is eligible to receive such a contract

38. The Respondent requires that in order to work a "complete" year, an employee must work for at least 150 days in a school term. Because the Petitioner did not work for at least

    150 days in the 1995-96 school term, she did not complete the third year of employment and is not currently eligible for a continuing contract as a paraprofessional employee.

39. The Respondent may permit a paraprofessional employee to work a fourth year, after which the employee automatically receives a continuing contract. Because there were concerns related to the Petitioner's job performance in the 1995-96 school year, the principal of the school would not likely have recommended that a fourth year of employment (and a resulting automatic continuing contract) be permitted.

    CONCLUSIONS OF LAW

    
    

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

41. Subsection 760.10(1)(a), Florida Statutes, provides in relevant part as follows:

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

       
       

       1. To . . . discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . handicap.

          
          

42. The Respondent is an employer for purposes of this proceeding.

43. The Florida Civil Rights Act of 1992, including Subsection 760.10(1)(a), Florida Statutes, is interpreted in a manner consistent with the federal Americans with Disabilities Act of 1990. Greene v. Seminole Electric Cooperative, Inc., 701 So. 2d 646 (Fla. 5th DCA 1997), Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).

44. In this case, in order to establish a prima facie case

    
    

    of handicap discrimination under Subsection 760.10(1)(a), Florida Statutes, the Petitioner must show that she is disabled; that she performed or was able to perform her assigned duties satisfactorily; and that despite her satisfactory performance, an adverse job action was taken by her employer on the basis of a handicap. Clark v. Jackson County Hospital, 20 F.A.L.R. 1182 (Florida Commission on Human Relations, June 25, 1997). To prove a claim of disability discrimination, Petitioner must establish by a preponderance of the evidence that she was

    disabled. Weaver v. Florida Power and Light, 1996 WL 479117

    
    

    (S.D. Fla. 1996). The burden of proof has not been met.

    
    

45. A "disability" is defined as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C.

    Section 12102(2); 29 C.F.R. Section 1630.2(g),(i). The Florida Commission on Human Relations considers a person to have a handicap if the person "does not enjoy in some measure the full and normal uses of his sensory, mental or physical facilities." Thomas v. Floridin Company, 8 F.A.L.R. 5457 (Florida Commission on Human Relations, October 9, 1986).

46. In this case, the evidence fails to establish that the Petitioner has a physical or mental impairment that substantially limits one or more major life activities, that there is any record of such impairment, or that she is regarded as having such an impairment. The evidence fails to establish that the Petitioner is incapable of enjoying "in some measure" the full and normal uses of her facilities.

47. At most, the Petitioner's neck pain was a temporary injury. In a claim of employment discrimination, a temporary injury does not constitute a disability. Evans v. City of Dallas, 861 F.2d 846 (5th Cir. 1988) (employer not held liable for the discharge of an employee whose knee injury required

    leave and surgery because the injury was not continuing in nature); Visarraga v. Garrett, 1993 WL 209997 (N.D. Cal. 1992) (back injury necessitating leave of absence and light duty restrictions not a handicap because only temporary);

    Presutti v. Felton Brush, Inc., 927 F.Supp. 545, at 550 (D.N.H.

    
    

    1995) ("a temporary injury . . . cannot be the basis for a viable cause of action ")

48. Further, even assuming the Petitioner's injury constituted a disability, the evidence fails to establish that the Petitioner was able to perform her assigned duties satisfactorily. While her evaluations were satisfactory during the first two school terms, her performance during the third year was less acceptable. Had the automobile accident not intervened, the evidence establishes that she was likely headed towards a less satisfactory performance evaluation than she might have anticipated.

49. The Petitioner also suggests that the school principal should have "found" a job for her at the school. The Respondent has no legal responsibility to create a light duty position to accommodate a temporary injury.

50. At the hearing, the Petitioner was unable to articulate the relief she is seeking in this proceeding. The evidence presented in this case fails to establish that any relief is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mary Ann Kerney.

DONE AND ENTERED this 1st day of June, 2001, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 1st day of June, 2001.

COPIES FURNISHED:

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Katherine B. Heyward, Esquire John K. McClure, P.A.

230 South Commerce Avenue

Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Wallace Cox, Superintendent Highlands County School Board

426 School Street

Sebring, Florida 33870-4048

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: 00-004135

Orders for Case No: 00-004135