STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITA BULLARD,

Petitioner,

vs.

APALACHEE CORRECTIONAL INSTITUTE,

Respondent.

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) Case No. 01-2626

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on August 14, 2001, in Marianna, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary Bullard, Qualified Representative

805 Shelby Avenue

Alford, Florida 32420

For Respondent: Ernest L. Reddick, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

Whether Respondent committed violations of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

On September 25, 1997, Petitioner filed a complaint against Respondent with the Florida Commission on Human Relations (FCHR) alleging that she was dismissed from her job without any job offer within the range of her limitations, and that she had been discriminated against because Respondent did not attempt to accommodate her disabilities. She claimed she was unlawfully terminated. At the hearing she further alleged that she was harassed.

The FCHR investigated the allegations of Petitioner and on or about May 17, 2001, determined that there was no reasonable cause to conclude that an unlawful employment practice had occurred. On June 20, 2001, Petitioner filed a Petition for Relief with the FCHR.

The petition was transmitted to the Division of Administrative Hearings and duly filed on July 1, 2001. The hearing was set for August 14, 2001, and was held before the undersigned in Marianna, Florida.

Petitioner was represented by her husband, Gary Bullard, an experienced labor union mediator who was found to be qualified pursuant to Rule 28-106.106, Florida Administrative Code.

Petitioner entered six items into evidence. Respondent had seven items admitted. Petitioner called five witnesses and

testified in her own behalf. Respondent offered the testimony of one witness. No transcript was prepared.

Both parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner began working at Apalachee Correctional Institute (ACI) in 1993. ACI had about 1,600 to 1,800 inmates during times pertinent to this case. The inmates assigned to ACI are those found to be mentally disturbed. ACI is divided into the East Unit and the West Unit.

2. Petitioner was hired as a Clerk Typist Specialist. She worked in the health services area performing typing and filing in the East Unit.

3. In time Petitioner developed carpal tunnel syndrome.

   
   

   She had three surgeries, two of which involved her wrists. These medical problems prevented her from working a normal schedule and she had to expend her leave in order to cover her absences. Because of the problems with her wrists, she had, from time to time, difficulty typing without experiencing pain.

4. Ann Lashley was employed in the West Unit. In 1995, she had a disagreement with her co-workers and, as a result, she was transferred to the East Unit. Subsequently, Petitioner was moved to the West Unit.

5. Much of the work accomplished by the clerk-typists was related to transcribing psychiatrists' notes. The psychiatrists in the East Unit often typed their own notes. The psychiatrists in the West Unit did not. Therefore, there was more typing for the clerk-typists in the West Unit. Petitioner had difficulty keeping up with this additional typing.

6. John Frank Williams was the overall supervisor of the East and West Units. He does not know, or in any event does not recall, why Petitioner was transferred.

7. Petitioner filed a workers' compensation claim based on a date of accident of August 1, 1993.

8. Petitioner's medical situation was coordinated with the Florida Division of Risk Management. A contract service, Compensation Rehabilitation Associates, was employed to audit Petitioner's work station and to determine what, if any, special equipment might assist Petitioner in accomplishing her employment duties without pain.

9. A representative of Compensation Rehabilitation Associates opined that Petitioner required an ergonomically designed chair. Mr. Williams ordered one for her and Petitioner used it.

10. Mr. Williams had work which had to be addressed.

    
    

    Nevertheless, he was aware of Petitioner's limitations and need to visit doctors and made diligent efforts to resolve the

    situation, including scheduling her work hours in a manner which would permit her to seek medical care.

11. Petitioner related the following events which she contended constituted harassment:

    1. In 1994, when she first had problems with one of her wrists, she was told by Kenneth Swann to type with one hand.

    2. She was also told, at some time, by Dr. Cherry to type with one hand.

    3. She attended a meeting where Mr. Williams said, apparently in response to her continuing medical difficulties, that no one would want her.

    4. Joseph Thompson, at some point, told her she was not a team player.

12. Dr. Loeb placed Petitioner at maximum medical improvement (MMI) on June 6, 1995 with no impairment or restrictions. Dr. Vogter placed the Petitioner at MMI on June 25, 1995, with an impairment rating of 17 percent, with

    restrictions of light duty and no continuous transcription work. Dr. Chason placed the Petitioner at MMI on April 7, 1998, with regard to psychological care, with a zero impairment rating.

13. In a letter from Margaret Forehand dated August 12, 1996, a Personnel Technician II of ACI, Petitioner was informed that she was being placed on alternate duty. This letter outlined Petitioner's proposed work hours and took into

    consideration her need for reduced hours of typing and her need to visit her doctors.

14. Petitioner, in response to this letter, declined to return to work. She had failed to report for work on August 15, 1996, and has been continuously absent since that date. Her sick leave was exhausted on October 4, 1996. Her Family Medical Leave Act benefits terminated on November 17, 1996.

15. In a letter dated November 25, 1996, C. W. Sprouse, Superintendent of ACI, informed Petitioner that another position had been found for her and invited her to contact Ms. DeDe McMillian so that she could begin working.

16. On or about December 10, 1996, Petitioner called Ms. McMillian and declined the offer.

17. In a letter dated December 17, 1996, C.W. Sprouse informed Petitioner that a personnel action was being taken which could result in her dismissal. She was further informed that she was entitled to a predetermination conference.

18. Petitioner did not request a predetermination conference and on January 3, 1997, her employment with ACI was terminated by Superintendent Sprouse.

19. On May 26, 1998, a Judge of Compensation Claims entered an order adopting a stipulation between Petitioner, ACI, and the Florida Division of Risk Management whereby Petitioner received a lump sum of $50,000. The stipulation further recited

    that the stipulation resolved any and all issues regarding any aspect of the Petitioner's workers' compensation benefits.

    CONCLUSIONS OF LAW

    
    

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

21. Petitioner is a "person" within the meaning of Section 760.02(6), Florida Statutes.

22. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes.

23. Petitioner claimed work-related injuries and testified, without specificity, that she had a host of health problems. These matters were addressed by the workers' compensation settlement and she can have no further relief from the Florida Civil Rights Act of 1992, Section 760.01, et seq. (the Act) with regard to these matters.

24. Alternatively, Petitioner relies on the Act for her claim of wrongful termination and discrimination because of her disability. The Act prohibits certain specified unlawful employment practices and provides remedies for such violations.

25. Section 760.10 provides:

    
    

    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 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.

    
    

26. The allegations of this case concern discrimination based on handicap. The Act is patterned after Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. Section 2000e-2. School Bd. of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). The Act incorporates the Americans with Disabilities Act of 1990 (ADA). See Title 42 U.S.C. Section 12101. Because the Act is patterned after a federal law on the same subject, the Florida law must be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA, 1991).

27. In this case, grounded in discrimination due to alleged handicap,

    . . . the employee has the initial burden of establishing a prima facie case of intentional 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, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the

    employer satisfies the 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 by 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 evidence that he or she has been the victim of intentional discrimination.

    
    

    Department of Corrections v. Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991).

28. In order for Petitioner to prevail in a case alleging discrimination and obtain the relief she seeks, Petitioner must establish that Respondent's employment decision was based on a protected status, i.e., Petitioner's handicap. In this case, Petitioner has the burden of presenting evidence sufficient to establish that her handicap was the determining factor in the employment decision made to discharge her. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Pena v. Brattleboro Retreat, 702 F.2d 812 (10th Cir. 1978). In

    other words, Petitioner must prove that what motivated Respondent to discharge her was her physical or mental condition, or Respondent's perception of her physical or mental condition.

29. The FCHR has adopted federal standards for allocating the burden of proof in handicap discrimination claims. See,

e.g., Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799

(Feb 23, 1983).

Accordingly, Petitioner must prove:

1. That (she) is a handicapped person within the meaning of the Florida Civil Rights Act;

   
   

2. That (she) is otherwise qualified for the position in question; and

   
   

3. That (she) was discharged from her position solely by reason of her handicap. Brand v. Florida Power Corporation, 633 So. 2d 504 at 510 (Fla. 1st DCA 1994).

1. Under the Act and the federal ADA, a person is considered to have a disability if he or she: (1) has a physical or mental impairment which substantially limits one or more of major life activities; (2) has a record of such impairment; and

   (3) is regarded as having such impairment. Gordon v. E. L. Hamm

   
   

   and Associates, 100 F.3d 1029, 1032 (11th Cir. 1996).

   
   

2. Petitioner, at all times relevant to this action, failed to prove that she suffered from a disability, and that she is a handicapped person within the meaning of the Act or the ADA. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) and Murphy v. United Parcel Service, 119 S. Ct. 2133 (1999).

3. Petitioner claimed that she was harassed because of her disabilities. Harassment may be evidence of discrimination.

   The facts of this case, however, failed to prove that either harassment or discrimination occurred.

4. Petitioner was terminated solely because of her failure to report to work.

5. Petitioner adduced no evidence that any supervisor or other employee made the decision to terminate her based upon a handicap, either perceived or real. To the contrary, the evidence established that the management and staff of ACI made sincere and continuing efforts to accommodate her disability.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered dismissing the Petition. DONE AND ENTERED this 13th day of September, 2001, in

Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 13th day of September, 2001.

COPIES FURNISHED:

Gary Bullard, Qualified Representative 805 Shelby Avenue

Alford, Florida 32420

Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

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

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi M. Dixon, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

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: 01-002626

Orders for Case No: 01-002626