STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK GILLIAM, SR., )

)

Petitioner, )

)

vs. ) Case No. 00-4632

)

TREE OF LIFE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 5, 2001, in St. Augustine, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Frederick Gilliam, Sr., pro se

241 Duval Street

St. Augustine, Florida 32095

For Respondent: Glynda Copeland

Corporate Human Resources Manager Tree of Life, Inc.

Post Office Box 410

St. Augustine, Florida 32095-0410 STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on June 17, 1998.

PRELIMINARY STATEMENT

This matter began on June 17, 1998, when Petitioner, Frederick Gilliam, Sr., filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Tree of Life, Inc., had violated Chapter 760, Florida Statutes, by discriminating against him on the basis of handicap when they terminated him from employment.

The allegations of discrimination were investigated by the Florida Commission on Human Relations (FCHR) and on

September 19, 2000, the Commission issued its determination of "no cause."

A Petition for Relief was filed by Mr. Gilliam on

October 27, 2000, wherein Petitioner again alleged that he was terminated from employment by Respondent because of a disability. FCHR transmitted the Petition to the Division of Administrative Hearings on or about November 14, 2000. This cause was first noticed for hearing on January 12, 2001.

Petitioner filed a Motion for Continuance which was granted. The hearing was rescheduled for March 5, 2001.

At the hearing, Petitioner testified on his own behalf and offered Petitioner's Exhibits 1-3. Petitioner's composite Exhibit 1 and Exhibit 3 were admitted into evidence, Exhibit 2 was rejected. Respondent was represented by its Corporate Human Resources Manager, Ms. Glynda Copeland, who testified on its

behalf. Respondent offered Respondent's Exhibits 1-4, which were received into evidence.

There is no transcript of the hearing. While the parties requested more than 10 days to file Proposed Recommended Orders, neither party elected to file any post-hearing submission.

FINDINGS OF FACT

1. Petitioner was employed as a freezer-puller, by Respondent, a wholesaler of natural and specialty food products. The quality of Petitioner's work for Respondent is not at issue as Respondent acknowledged that Petitioner was a good worker and always got good evaluations.

2. Around January 8, 1997, Petitioner requested and was granted leave under the Family Medical Leave Act. The request stemmed from his wife's terminal illness and his need to take care of her.

3. Mrs. Gilliam passed away on February 15, 1997. On February 28, 1997, Petitioner's primary doctor wrote a note to Respondent that Petitioner "is excused from work this week and the next two weeks for medical reasons."

4. On March 14, 1997, Petitioner's doctor wrote a letter to Respondent stating that Petitioner was suffering from complications of grief reaction. The letter recommended that Petitioner be placed on a ground level job for the next six months "until the severe impact of this grief reaction has a

   chance to lose it's sharpness and severity." It did not say that Petitioner could not return to work.

5. On March 25, 1997, Petitioner's doctor wrote the following note on a paper entitled, "Certificate to Return to School or Work": "Pt. suffering from grief reaction. Therapist to see pt. on 4-3-97. Work status dependent on counseling progress." On the same date, Petitioner's doctor signed an insurance claim form which also stated that Petitioner's work status depends on what the therapist recommends.

6. On April 3, 1997, Petitioner's doctor wrote a note which stated:

   To Whom it May Concern, Mr. Gilliam is presently in counseling. He has an appt. on April 17th & will have several consecutive visits. He is also attending a support group. Depending on his progress, he may be able to return to work mid-May. Thank you for your kind patience.

   
   

7. On April 14, 1997, the insurance company which issued the group disability policy covering Respondent's employees wrote to Petitioner notifying him that benefits beyond April 3, 1997, were denied and giving him a time frame in which he could request a review of the claim denial. The letter stated in pertinent part, "You have been disabled for a grief reaction due to the death of your wife. Although we sympathize with your loss, we now feel that the grief reaction process is no longer a disabling condition."

8. On May 5, 1997, Kim Hamrick, who at the time was Respondent's director of human resources but who no longer works for Respondent, wrote to Petitioner informing him that he had exhausted all twelve weeks of his family medical leave. The letter further stated:

   Once you exhaust all of your leave and you do not [sic] to return to work the company has a legal right to fill your position as a Puller/Stocker in the Freezer. Once you have been released to return to work we will look at placing you in another position within the organization.

   
   

   If you wish to continue your medical, dental and vision insurance at this time, you will still be required to pay your portion by the tenth of the month or coverage will be cancelled.

   
   

   Please feel free to contact me if you need any assistance. Keep me informed as to your work status.

   
   

9. There was an unfortunate lack of communication between the parties after this point. In November or December of 1997, Petitioner called Glynda Copeland who was the employee of Respondent now handling this situation, asking about his insurance enrollment form for 1998. This phone call resulted in a meeting between Petitioner and Ms. Copeland. Petitioner was under the impression that he was still on a leave of absence. Ms. Copeland informed him that he had been terminated.

10. The extent of the lack of communication between the parties was evidenced at hearing when it became clear that had

    Petitioner informed Respondent that he wanted to work and wanted his job back, Respondent would have allowed him to resume working. However, Petitioner was so devastated that he had been terminated that he did not ask to be able to resume working for Respondent.

11. Petitioner maintains that he submitted all requested medical documentation to Respondent. However, the documents from physicians submitted by Petitioner to Respondent were insufficient to support the proposition that Petitioner was unable to work for medical reasons beyond April of 1997. Specifically, no doctor wrote that he was unable to work for medical reasons after April 1997.1

12. After learning that he had been terminated from employment with Respondent, Petitioner found other employment.

    CONCLUSIONS OF LAW

    
    

13. 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.

14. Section 760.10(1)(a), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of the individual's handicap.

15. Petitioner's Charge of Discrimination asserts that he was discriminated against in violation of both the Americans

    with Disabilities Act (ADA) and the Florida Civil Rights Act of 1992. However, the claim was filed under the Florida Civil Rights Act, as amended, and thus the controversy must be resolved under state law. Moreover, federal case law interpreting the ADA is highly persuasive in disability actions brought under state law as state law parallels, to some extent, federal law. Brand v. Florida Power Corp., 633 So. 2d 504, 509-

    510 (Fla. 1st DCA 1994).

    
    

16. To make a prima facie case of handicap discrimination

    
    

    under Section 760.10(1)(a), Florida Statutes, Petitioner must show that he is disabled; that he performed or was able to perform his assigned duties satisfactorily; and that despite his satisfactory performance, he was terminated from his employment. See, Brand, supra; Clark v. Jackson County Hospital, Florida Commission on Human Relations' 20 F.A.L.R. 1 182, 184 (Fla.

    Comm'n Human Relations, June 25, 1997).

    
    

17. In this case, Petitioner has failed to meet his burden of proving a prima facie case. Petitioner did not provide evidence that he suffers from a disability covered by the Florida Civil Rights Act of 1992. In the context of a claim of discrimination, the disability must be of a permanent nature to constitute a disability. See, e.g., Evans v. City of Dallas, 861 F. 2d 846, 853 (5th Cir. 1988) (Plaintiff's injury was transitory and may have limited his life activities during

    recuperation but is not of a continuing nature); Stevens v.

    
    

    Stubbs, 576 F.Supp. 1409, 1414 (N.D. Ga. 1983)(The court is unconvinced that the term "impairment" as used in the law encompasses transitory illnesses which have no permanent effect on the person's health).

18. The evidence provided at hearing did not establish that Petitioner's grief reaction to his wife's death resulted in a disability of a permanent nature so as to continuously limit his ability to work. Moreover, the documentation provided by Petitioner's doctor only established that he was not able to work for a period of two or three months, and Respondent allowed Petitioner to remain on leave during that period of time.

19. Because Petitioner has failed to make a prima facie

case of discrimination, his Charge of Discrimination should be dismissed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That a final order be entered by the Florida Commission on

Human Relations dismissing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 16th day of April, 2001.

ENDNOTE

1/ Petitioner did submit a chiropractic physician's letter written in January 1998, which was after Petitioner had been terminated, which recommended that Petitioner not work for one week.

COPIES FURNISHED:

Frederick Gilliam, Sr.

241 Duval Street

St. Augustine, Florida 32095

Glynda Copeland

Corporate Human Resources Manager Tree of Life, Inc.

Post Office Box 410

St. Augustine, Florida 32095-0410

Azizi M. Coleman, 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

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: 00-004632

Orders for Case No: 00-004632