STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTINE HARRIS,
Petitioner,
vs.
CHILDRENS HOME SOCIETY,
Respondent.
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) Case No. 02-4522
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RECOMMENDED ORDER
This cause came on for a disputed-fact hearing before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on November 7, 2003, in Tavares, Florida.
APPEARANCES
For Petitioner: Christine Harris, pro se
Post Office Box 624
Mount Dora, Florida 32757
For Respondent: Joann M. Bricker, Esquire
Joann M. Bricker, P.A.
204 Royal Tern Road, North
Ponte Vedra Beach, Florida 32082 STATEMENT OF THE ISSUE
Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of handicap.1/
PRELIMINARY STATEMENT
The Charge of Discrimination herein was dated and/or filed with the Florida Commission on Human Relations on or about September 29, 2001.
On July 8, 2002, a "Notice of Determination: No Cause" was entered and mailed to Petitioner, together with a blank Petition for Relief form and instructions that an administrative hearing must be requested within 35 days or the administrative claim would be dismissed.
On September 10, 2002, the Commission entered a Notice of Dismissal because
Complainant has failed to file a Petition for Relief pursuant to Rule 60Y-5.008 Florida Administrative Code. Complainant has had more than 35 days from the date of service of our Notice of Determination . . .
The Commission then entered, apparently without notice to Respondent, nor any chance for Respondent to be heard, a Notice of Recission of Notice of Dismissal that read:
The September 10, 2002, Notice of Dismissal in the above listed case is hereby rescinded. The Dismissal was made upon the basis that the Complainant failed to file a Petition for Relief within 35 days from the date of service of the Commission's Notice of Determination. The Complainant has indicated she did not receive the Notice of Determination and Petition for Relief and therefore would not have known of the 35-day period to file the Petition for Relief. As such, the Notice of Dismissal is hereby RESCINDED.
Although this Notice of Recission was dated by the Executive Director and Clerk of the Commission as "October 9, 2001," the undersigned interpreted the "one" to be a typographical, ministerial flaw, and concluded that the Notice of Recission was entered and mailed to Petitioner on October 9, 2002.
Petitioner filed her Petition for Relief with the Commission on November 14, 2002, 36 days after the Notice of Recission, or one day late, per Section 760.11 (4)(b) and (6), Florida Statutes. Her handwritten, "speaking," Petition stated that Petitioner's address was the identical address to which the Commission had mailed its Determination: No Cause, its Order of Dismissal, and its Notice of Recission. Nonetheless, the Commission referred the case to the Division of Administrative Hearings on or about November 19, 2002.
Subsequently, in her response to a Motion to Dismiss before the Division, Petitioner claimed that she "filed Petition for Relief with direction of the court administration [sic]" and suggested that she had not filed her Petition for Relief within
35 days of the Commission's Notice of Determination because she was relying on her attorney, an excuse which is apparently contrary to the reason she earlier gave to the Commission. (See
above.) However, Petitioner's response offered no excuse for
her failure to file her Petition for Relief more than 35 days after the Commission's Notice of Recission of Dismissal.
Therefore, the Petition for Relief was untimely filed before the Commission, even if the Commission's Notice of Recission can be interpreted as triggering a new 35-day filing period. Under these circumstances, both equity and a significant body of case law prohibit allowing an additional period for mailing as provided by Florida Administrative Rule 60Y-4.007(1).2/
However, it appearing that the Commission, by its referral to the Division, had decided to grant a hearing before the Division anyway, the Petition for Relief was not dismissed as untimely.
Discovery ensued. Petitioner was unreasonably resistant to any and all discovery requests, and as a result, the disputed- fact hearing was rescheduled several times as more fully reflected in the case file.
On October 6, 2003, an Order Granting Sanctions was entered against Petitioner, finding her in willful noncompliance with prior discovery orders, limiting the evidence and testimony she could present at the disputed-fact hearing, and finding that Respondent was entitled to reasonable attorney's fees in connection with the several Motions granted therein. Respondent was required to submit an affidavit and accounting of attorney
time within 15 days. Respondent complied, and Petitioner did not timely challenge the materials filed. Petitioner was given another opportunity to respond/object up through the date of the disputed-fact hearing. Although she continued to object to the Order Granting Sanctions, Petitioner has never objected-to nor refuted the amounts claimed by Respondent's attorney.
Therefore, those fees and costs will be addressed within this Recommended Order.
At the commencement of the disputed-fact hearing, Petitioner's request to amend her Petition to include a charge of retaliation based on alleged recent attacks on her car by persons unknown was denied. Also, Petitioner's oral motion to deem her Requests for Admission admitted was denied because Respondent demonstrated that it had, in fact, timely answered Petitioner's Requests. Petitioner's blanket oral objection to the presentation of any evidence by Respondent was also denied.
Petitioner had made no viable Requests for Production but, over Respondent's objection, Respondent was required to show Petitioner all portions of Petitioner's personnel file which Respondent had physically present at the hearing.
Petitioner testified on her own behalf and Exhibits P-2, 3, 4, 5, 6, 7, 8, 9, and 10, were admitted in evidence. Exhibit P-
1 was not admitted. Exhibit P-11 was withdrawn.
Respondent presented the oral testimony of Glenna Osborne and Linda E. Barry and had Exhibits R-1, 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27,
28, 29, 30, 33, 34, and 35 admitted in evidence. Intervening exhibit numbers were either not offered or were not admitted.
At the close of hearing, and contrary to oral instructions of the undersigned that no exhibits were to be taken out of the hearing room for copying until the undersigned and both parties were satisfied that all the exhibits which had been admitted in evidence were accounted-for, Petitioner left the hearing room with several exhibits. Upon her return to the hearing room, Petitioner placed some exhibits in the pile being counted out by the undersigned. Thereafter, all the exhibits actually admitted were accounted for, with the exception of Exhibit P-7, "UC [Unemployment Compensation] papers." Despite repeated requests by the undersigned that Petitioner search bags she had just zipped-up, Petitioner would not make such a search and only stated that she did not have Exhibit P-7. Respondent's counsel searched her own bags and reported that she also did not have Exhibit P-7. The undersigned then stated that if either party later discovered Exhibit P-7, after a thorough search, that party was to immediately file and serve Exhibit P-7 with a Notice of Filing. There was never any oral instruction by the undersigned for Petitioner to otherwise supplement the record.
No Transcript was ordered, and the parties stipulated to filing their proposed recommended orders within 20 days of the hearing.
On November 14, 2003, Petitioner filed 25 pages of dubious relation to the case, as more fully explained in a Notice of Ex- Parte Communication and Order as Regards Exhibits, which was entered on November 18, 2003.
The same November 18, 2003, Order provided that:
1. Pages 17, 18, 19, 23, and 24 [of the 25 pages filed by Petitioner on November 14, 2003] will be considered as Petitioner's Exhibit 7, unless Respondent, within ten days, shows good cause why they should not be so considered.
2. All other pages filed by Petitioner on November 14, 2003, are hereby struck and will not be considered. [Bracketed material supplied for clarity]
Respondent did not file any papers showing good cause within the time allotted, and on December 3, 2003, an Order was entered requiring that the parties file their respective Proposed Recommended Orders on or before December 22, 2003, which period honored the 20 days originally stipulated by the parties.
Respondent timely filed a Proposed Recommended Order.
Respondent also filed separate Proposed Findings of Fact. The applicable statute and rules do not contemplate two separate
documents, but because there was no objection or motion to strike filed by Petitioner, both have been considered.
On December 26, 2003, Petitioner untimely filed a paper entitled "(Proposed) Order to Execute Payment to Petitioner." Although late by the terms of the December 3, 2003, Order, this proposal by Petitioner also has been considered, because no objection thereto or motion to strike was filed by Respondent.
FINDINGS OF FACT
Petitioner's Charge of Discrimination arises out of her employment with Respondent Children's Home Society (CHS) and a series of medical leaves in the years 2000-2001, which ultimately resulted in loss of her position.
Respondent CHS is a non-profit social service organization established over 100 years ago. It is the oldest private child welfare service in Florida. It provides a range of services for the benefit of children and families throughout the state, including but not limited to counseling and support services, adoption, residential care, and home-based services.
Petitioner appeared at the November 7, 2003, disputed- fact hearing using a cane. The undersigned observed that she seemed to experience pain at movement of her back and one leg. She presented no supportive medical evidence that she is currently disabled/handicapped and little to explain the cause of her present mobility problems or when they first appeared,
except that one of her explanations for her current condition is that she was held against her will in a psychiatric center, in June 2002, pursuant to a circuit court Order, and at that time she fell and broke her back and leg. This occurred a year after Respondent had declared Petitioner's position vacant.
Petitioner also testified that on March 29, 1999, on her way to work with CHS, her back and legs were injured, her face was crushed, and her teeth were shattered in an automobile accident that totaled her car. There is no evidence that she was off work with CHS for any period of time in 1999 or that any workers' compensation claim was made by her to CHS at that time. Petitioner did request a wage statement from CHS in connection with some automobile insurance claims in 1999. Also, in 2001,
Petitioner also made a claim to CHS's insurance company for long-term disability benefits on the basis of this automobile
accident, as more fully described below.3/ It is significant that her September 29, 2001 Charge of Discrimination did not list her back and legs as her handicap. Her November 14, 2002 Petition for Relief mentions the 1999 automobile accident.
In 2000-2001, Petitioner was Program Supervisor I for CHS's Healthy Families Program in the Lake County area of CHS's Mid-Florida Division. She was in charge of the North Lake area, which encompasses Fruitland Park, Tavares, Leesburg, Lady Lake,
Mt. Dora, Astor, Paisley, Sorrento, and other unincorporated areas of North Lake County.
The Healthy Families Program is a very demanding one.
Its Program Supervisors I have multiple and complicated responsibilities.
As a Program Supervisor I for the Healthy Families Program, it was Petitioner's job to provide hands-on supervision to six paraprofessional Family Support Workers (FSW); ensure that rigorous program standards were maintained by them and other paraprofessionals and interns through weekly (two-hour minimum) formal staffings of each case; conduct ongoing case file reviews for quality of documentation; conduct year-end performance evaluations of supervised staff through information gained during the weekly staffings, file reviews, data related to stated objectives, home visits, and telephone quality assurance contacts with all clients; coordinate activities among and between staff (such as Christmas food and toy drives); coordinate comprehensive training and orientation for staff; provide staff with ongoing coaching throughout program implementation; oversee new case staffing and assignments with Family Assessment Workers (FAW); provide professional intervention for difficult cases; conduct joint home visits with all case load families every quarter; generate and/or oversee the reporting of program data; provide monthly comprehensive
regular reports to a Program Manager on the status of all program activity; provide home visits and documentation in the absence of an FSW; cross-train to be an FAW; and assume new case assessment and documentation in the absence of an FAW.
Program supervisors, with peers, conduct six to eight weeks of intensive training for each new FSW. After the initial training, the Supervisor is responsible for an additional 40 hours of ongoing training. The weekly staffing on every case is mandatory. Healthy Families Florida allows no excuses for a missed staffing on even one case in one caseload in one week. The program either meets the standard or it does not. This is also true for program objectives in which seventeen measurable goals must be met for every case. Program supervisors are required to assure constant and accurate data entry of all program information. Accuracy and timeliness of the data provide a measure of the program's success or failure in achieving program objectives.
Program supervisors must meet every new family within the first month of service and conduct joint home visits with each family each quarter. Quality assurance telephone calls must be conducted with each family every quarter. Case files must be reviewed constantly to assure that the required documentation is in place. Finally, program supervisors must
meet with the Health Families Program Specialist each quarter for a file audit and program review.
In June 2000, Petitioner took her first Family Medical Leave Act (FMLA) leave. She was out on FMLA leave for four weeks and two days, returning in July 2000. During this period of time, Petitioner gave birth to a live male infant. The child died while Petitioner was strapped to the table in the delivery room and hospital personnel dropped the infant. Quite naturally, this tragic event, over which she had no control, caused Petitioner psychological trauma and enormous grief. She also maintained that the lack of appropriate after-care at that time might have resulted in her subsequent need for FMLA leave and a hysterectomy, as more fully described below.
CHS's FMLA policy was contained in its Employee Handbook. In 1995, Petitioner acknowledged, in writing, receipt of the Employee Handbook. In 1996, CHS's leave policies were amended, and a clear equal employment opportunity and anti- discrimination policy was added to the Handbook. Petitioner maintained that she had signed the receipt for the Handbook before the foregoing amendments. That testimony by Petitioner is credible, but it is also clear that Petitioner subsequently became aware of CHS's leave policy via explanations in a series of letters to her from CHS's Human Resources Department over the
course of her second FMLA leave of absence, which began in November 2000.
FMLA leave is calculated on a twelve-month rolling calendar period. Under the FMLA, Petitioner was guaranteed reinstatement to her former position as Program Supervisor I or an equivalent job with the same pay, benefits, terms, and conditions of employment as long as her total FMLA leave (including all leave periods) did not exceed twelve weeks in a twelve-month period.
CHS characterizes all medical leave as FMLA leave if the employee is eligible for FMLA leave. CHS requires that accrued paid vacation and sick leave be utilized before utilizing unpaid FMLA leave. This allows the employee to draw full salary and continue to receive health insurance benefits as long as possible before having to resort to unpaid leave, but it means that FMLA leave, vacation leave, and sick leave are depleted simultaneously.
CHS automatically offers any employee who is on FMLA leave for a serious health condition an opportunity to convert the leave to disability leave after his or her FMLA leave expires. Under this CHS leave policy, an employee does not have to be handicapped or disabled to qualify for disability leave.
At all times material, Julie Ormond, Healthy Families Program Manager, was Petitioner's immediate supervisor.
Ms. Ormond reported to Glenna Osborne.
Glenna Osborne was the Director of Program Operations for CHS's Mid-Florida Division. She supervised three programs: Family Builders, Healthy Families, and Responsible Fatherhood. Ms. Osborne was in charge of 77 employees and 10 supervisors. Ms. Osborne has a Master's Degree in Human Development and 25 years' experience in management.
On or about October 11, 2000, Ms. Ormond wrote a memo to two Healthy Families supervisors, one of whom was Petitioner. The memo detailed certain problems with both supervisors' areas: supervision duties, data entry requirements, and report completions. Ms. Ormond requested that the problems be corrected and in place no later than October 30, 2000.
On November 3, 2000 and November 7, 2000, Ms. Ormond copied Ms. Osborne with memos sent only to Petitioner on the same dates, detailing that some of Petitioner's programs had serious problems, now including complete absences of some data entry, late data entry, and both failure to classify and inaccuracy of classification of some clients. There also were problems in Petitioner's area with meeting State requirements and registering childhood immunizations. Petitioner was instructed to resolve the problems in her area as soon as
possible. Ms. Ormond also copied Ms. Osborne with a memo along the same lines, dated November 7, 2000, from another CHS employee, Jean Plescow.
When data entry is incomplete or late, it is not always possible to readily determine whether the problem is just a delayed data entry or if there also has been an actual failure to accomplish the act, plans, staffings, trainings, and immunizations for which the data was supposed to be entered. Over time, as related more fully below, it appeared that there were more problems with Petitioner's job performance, and the performance of the staff she supposedly had trained, than merely a failure to transpose information to a computer from other records.
Before her work problems had been resolved, Petitioner went out a second time on leave associated with a medical problem.
It was Petitioner's affirmative duty to apply for leave initially and to seek extensions, if necessary, of any leave granted.
Although Petitioner testified that she filled out all the vacation and sick leave forms necessary before going out on "medical leave"; that she left in October 2000; and that when she left, she fully intended to be back at work before her accrued vacation and sick leave ran out, the following facts are
found upon the greater weight of the credible evidence as a whole.
At Petitioner's request dated November 21, 2000, CHS again placed her on FMLA leave as of that date. Petitioner's last day of work before this second period of FMLA leave was November 19, 2000. On November 21, 2000, Petitioner informed CHS that she expected to return to work on or about January 23, 2001.
Ms. Osborne's testimony was credible to the effect that she believed that Petitioner was going out on leave in November 2000 for surgery related to the June 2000 birth of Petitioner's child and not for surgery related to any prior automobile accident. Ms. Osborne is also credible that although she knew that Petitioner had been in an automobile accident in 1999, she never knew the extent of Petitioner's injuries from that accident and had never received any doctors' reports or any requests for accommodation of a handicap from Petitioner.
Ms. Osborne did not perceive Petitioner as handicapped for any reason at any time between 1999 and November 19, 2000.
Petitioner claimed that she only took the Program Supervisor I job on the condition "that if it were too hard, I could have my old [CHS] job back." Petitioner testified about how excellent she believed she performed her Program Supervisor I job prior to November 19, 2000, and that her work was up to
date and commendatory when she took her second medical leave. She further stated that, as of November 19, 2000, she had accrued enough vacation and sick leave to cover the time she expected to be out on her second medical leave.
Upon the facts found in Findings of Fact 23 and 24, it is further found that Petitioner never requested or received from CHS any workplace accommodations for a handicap dealing with her back or legs prior to her absence beginning in November 2000.
Furthermore, all the medical excuses Petitioner supplied to CHS after November 19, 2000, support a finding that iron deficiency anemia from a uterine fibroid and a surgical hysterectomy with resultant recovery time caused Petitioner's absence from work after November 19, 2000, even though Petitioner supplied a different explanation to CHS's long-term disability insurance company after her leave ran out, as more fully discussed below.
As Director of CHS's Mid-Florida Division's Human Resources Department, Linda Barry was responsible, in 2000-2001 for implementing and interpreting CHS's policies and procedures; benefits administration; approving transfers and promotions; approving and administering FMLA leaves and other leaves of absence; making termination decisions; and keeping apprised of CHS's hiring needs.
On November 28, 2000, Ms. Barry sent, and Petitioner received, a letter advising that because of her June 2000 leave, only seven weeks and two days remained of Petitioner's FMLA leave and requesting that Petitioner complete and return the FMLA paperwork.
In the meantime, Ms. Osborne assessed the North Lake staffing situation and documented her concerns in a November 30, 2000 memo to Ms. Ormand. Ms. Osborne noted some of Petitioner's program documentation was satisfactory and some was exemplary, but that there still existed serious problems with missing, incomplete, or inaccurate program documentation and inadequate training and supervision of Petitioner's team. Ms. Osborne requested that Ms. Ormand bring these deficiencies to Petitioner's attention as soon as Petitioner returned from FMLA leave, and that if Ms. Osborne's observations were confirmed by Ms. Ormand, the problems should be addressed at that time by Ms. Ormond in Petitioner's evaluation.
During Petitioner's absence beginning November 19, 2000 and continuing into 2001, three other area supervisors performed their own full-time responsibilities and divided Petitioner's job responsibilities among themselves. Janie Counts, Sumter County Supervisor, traveled several times a week to provide fill-in supervision for two of Petitioner's FSWs. The South Lake Supervisor, Stephanie Ellis, provided fill-in
supervision for two more of Petitioner's FSWs. Ms. Ormand traveled from Tavares to Leesburg to provide fill-in supervision for Petitioner's two remaining FSWs. If one of the three fill- in supervisors was ill or on leave, the remaining two fill-in supervisors oversaw Petitioner's two remaining FSWs, continued to cover their own teams, and covered the other absent supervisor's six FSWs. In the course of scrambling to carry on CHS's regular workload in Petitioner's absence, these three supervisors reported to Ormand and Osborne more problems they uncovered in Petitioner's operation.
Ms. Counts sent Ormand and Osborne written reports.
Her December 10, 2000 report reflected that Petitioner had left behind inadequate program documentation, had failed to prepare her supervision notes, had missing family support plan updates, had late data and missing data, and had failed to provide adequate training to her FSWs.
Ms. Counts reported to Ormand and Osborne in a December 15, 2003 memo that she had uncovered even more problems that had existed in Petitioner's program before Petitioner went on leave. She also related that Petitioner had come to the office that day for the office's Christmas Lunch.
CHS's FMLA leave policy required the existence of a "serious health condition." A doctor's certification supporting an FMLA leave is required. Physicians are provided an
instruction sheet explaining the definition of "serious health condition", so they can categorize the patient's illness.
Sometime in December 2000, Petitioner's doctor,
Dr. Grousse, provided Ms. Barry with medical certifications to support Petitioner's then-current FMLA leave. Dr. Grousse listed Petitioner's condition as severe iron deficiency anemia and stated that she needed a hysterectomy soon. Dr. Grousse advised that Petitioner could not perform any work at that time.
On December 20, 2000, Ms. Barry sent Petitioner a memo explaining her FMLA leave rights and requesting a medical certification from her surgeon. She also informed Petitioner of CHS's policy of applying vacation and sick leave concurrent with FMLA leave and stated the balance of Petitioner's FMLA leave remaining after her leave in June 2000 had been seven weeks and three days. She noted that as of CHS's December 15, 2000 payroll, Petitioner had 313.32 hours accrued vacation time and
124.22 hours accrued sick time.
On December 27, 2000, Dr. Boggus provided Ms. Barry with medical certification to support Petitioner's FMLA leave. He indicated that Petitioner needed pelvic surgery, that she could not perform any work at that time, and that she would need six weeks off work after the surgery for recovery. He categorized Petitioner's condition as a "1" and "2", which meant that her condition required a stay in the hospital and a work
absence plus treatment. He did not categorize her condition as "chronic" (requiring periodic treatment), nor did he categorize her condition as "permanent/long term" (requiring supervision).
In the meantime, Petitioner's job duties still had to be covered and her team re-educated and brought up to grade if CHS's program objectives were to be met.
Ms. Barry sent, and Petitioner received, a certified letter dated January 10, 2001, advising Petitioner that her FMLA leave would expire on January 12, 2001; extending her leave to January 22, 2001, as unpaid disability leave; advising her that she could continue to use any remaining accrued vacation time; and requesting that she submit a physician's statement for any leave she would require beyond January 22, 2001.
The FMLA does not require that employees who are absent more than 12 weeks in a 12 month-period be returned to the same or a comparable position. Significantly, Ms. Barry's January 10, 2001 letter stated that although it was not guaranteed that Petitioner's Program Supervisor I position would be available when she was ready to return from leave, an effort would be made to place Petitioner in her previous position or a comparable one, or if no such position were available when Petitioner was ready to come back, she might be eligible for re- hire should a position later become available and her past work history warranted re-hire. The crucial point here is that CHS
expressed no obligation to hold Petitioner's job for her after her FMLA leave ran out, but stated that it would try to give her a job in the same capacity when she returned.
In fact, on January 12, 2001, Petitioner had her hysterectomy, which, according to Dr. Boggus's December 27, 2000 certification, meant that Petitioner would have then needed an additional six weeks, or until approximately February 23, 2001, before she could return to work in any capacity.
However, Petitioner's FMLA leave expired on January 12, 2001. She did not contact CHS until after that
date, and only then did she send in medical information about the date of her surgery. (See Finding of Fact 45.)
By the time Petitioner's FMLA leave had expired on January 12, 2001, the fill-in supervisors had reported to
Ms. Osborne that they were burned out with having to work their own full loads and also deal with the deficiencies left behind by Petitioner. One fill-in supervisor found it impossible to find the time to retrain the two FSWs assigned her from Petitioner's team while trying to maintain her own workload as a full-time supervisor. Another fill-in supervisor requested a transfer to a less demanding program and a demotion.
By the middle of January 2001, Osborne and Barry had concluded that the undue hardship on the fill-in supervisors was so great that it was impossible to hold Petitioner's position
open any longer. They felt to do so would seriously compromise the extent and quality of services that CHS could offer its clients and would jeopardize the well being of the other supervisors who were covering for Petitioner.
Faced with Petitioner's not returning to work in any capacity for an indeterminate period of time, Barry and Osborne decided they had no choice but to replace Petitioner when her FMLA leave expired.
According to Ms. Barry, Dr. Neil Finkler provided a medical certification update on behalf of Petitioner to her "toward the end of January 2001." Because Dr. Finkler's undated certification is referenced in her January 23, 2001 letter to Petitioner (see Finding of Fact 46), it is concluded that
Ms. Barry received Dr. Finkler's certification before January 23, 2001, and probably received it by the January 22, 2001 date she had required in her January 10, 2001 letter for a reply from Petitioner. Dr. Finkler's certification advised that surgery had been performed on January 12, 2001, and that Petitioner would be incapacitated until February 23, 2001. Dr. Finkler categorized Petitioner as a "1", which is defined as requiring a stay in the hospital and a work absence plus subsequent treatment. Dr. Finkler did not categorize Petitioner's condition as chronic, requiring periodic treatment or as a permanent/long term condition requiring supervision.
On January 23, 2001, Ms. Barry sent, and Petitioner received, a certified letter confirming that CHS had received Dr. Finkler's certification; notifying Petitioner that CHS had extended her leave to February 23, 2001, as unpaid disability leave, but that Petitioner could continue to use any remaining accrued vacation time; notifying her that as of CHS's
January 15, 2001 payroll, her vacation balance was 269.54 hours; and advising that when Petitioner was ready to return to work she would have to provide a fitness-for-duty certification. The letter also stated:
Because the operations of CHS require that vacant positions be filled, a disability leave of absence does not guarantee that your job will be available when you return. An effort, however, will be made to place you in your previous position or a comparable one. If no such position is available, you may be eligible for re-hire should a position become available for which you are qualified and your work history warrants rehire.
The representation that an effort would be made to return Petitioner to her former position was probably untrue, given that Ms. Barry already knew that a replacement had to be hired soon. However, comparable positions might be available. (See Findings of Fact 48 and 49.)
On January 26, 2001, Ms. Counts submitted a report of her fill-in supervision for Petitioner to Ms. Ormand. She reported that Petitioner's subordinates had not been trained by
Petitioner on charting requirements and had not even been given certain forms.
Effective January 29, 2001, after the automatic extension to January 22, 2001, given Petitioner in Ms. Barry's January 10, 2001 letter, had expired, but before the
February 23, 2001 extension specified in Ms. Barry's January 23, 2001 letter, had been reached, CHS selected Belinda Henson to replace Petitioner as the Program Supervisor I for the Healthy Families Program in Lake County. Ms. Hensen would be on probation for six months, but she was considered a permanent employee as of her date of hire, to the extent that she would not be ousted from Petitioner's old Program Supervisor I position even if Petitioner chose to return to work.
Although Petitioner was replaced as Program Supervisor I in her area on January 29, 2001, CHS still considered Petitioner to be an employee on leave status. CHS did not foreclose the possibility that it could have other Program Supervisor I openings available when Petitioner was ready to return from her leave.
On February 16, 2001, Ms. Ormand sent a memo to Ms. Barry and Ms. Osborne, stating the problems with
Petitioner's past job performance as expressed by the fill-in supervisors.
When Petitioner's extended leave expired on February 23, 2001, Ms. Barry sent, and Petitioner received, a letter of that date, stating that CHS had not received any
further medical certification to authorize leave beyond February 23, 2001, and that if Petitioner needed to continue her leave, she must provide an updated physician's statement showing such leave to be necessary. Ms. Barry's letter also informed Petitioner that her previous position had been filled, but
Should you be able to return to work, an effort will be made to place you in a comparable position, should one be available. If no such position is available, you may be eligible for rehire as a new employee if you should apply for an available position in the future.
On February 27, 2001, Petitioner faxed Ms. Barry a copy of a note from Dr. Boggus, advising, "No lifting over 5 lbs for one month. She may return 25 hours/wk for next one month." Dr. Finkler also provided a note stating that Petitioner could return to work on February 27, 2001, "but only work up to 25 hours/week with no heavy lifting for the next 1 month."
There were no part-time openings in the Mid-Florida Division as of February 27, 2001. Petitioner's accrued paid vacation leave must have run out at about this time.
Ms. Barry sent, and Petitioner received, a certified letter dated March 5, 2001, advising Petitioner that Ms. Barry had received the two doctors' notes restricting Petitioner to
part-time work and that there were no part-time positions currently available in CHS's Mid-Florida Division. However, Ms. Barry extended Petitioner's leave for one month to March 27, 2001, the time period of her restriction to part-time work.
Petitioner could have applied in other CHS divisions for any available part-time position for which she was qualified. The record is silent as to whether there were any such part-time positions available then, but it affirmatively appears that Petitioner did not inquire into, or apply for, any part-time positions that may have been available outside of the Mid-Florida Division.
Petitioner testified that she drove to a CHS office in Orlando either to get copies of her records or to apply for a position (her purpose is not entirely clear from her testimony). Because the parking lot was undergoing excavation, she just drove away. This is not a reasonable explanation for not applying for a position.4/
As set out above, Petitioner had established a pattern of not taking affirmative action to timely supply the necessary medical information to Ms. Barry. Petitioner repeatedly had waited until her leave expired before submitting any medical documentation. Nonetheless, CHS still considered her an employee through March 27, 2001.5/
Petitioner testified that she made an unemployment compensation claim and CHS fought it. She further testified that she was denied her unemployment compensation benefits, but someone in the Governor's Office intervened and she was then paid one unemployment compensation check only. The testimony concerning the Governor's Office is uncorroborated and not credible.
However, Exhibit P-7, shows that on January 3, 2002, an Unemployment Compensation Appeals Referee entered a "Decision", which reads, in pertinent part, as follows:
Issues involved: SEPARATION: Whether the claimant [Petitioner] was discharged for misconduct connected with work or voluntarily left work without good cause (including cause attributable to the employing unit or illness or disability of the claimant requiring separation); pursuant to Sections 443.101(1), (9), (10), (11);
443.036(29), Florida Statutes; and Rule 38B- 3.020, Florida Administrative Code.
LEAVE: Whether the claimant's unemployment is due to a leave of absence voluntarily initiated by the claimant, pursuant to Sections 443.036(28) and 443.101(1)(c), Florida Statutes.
Findings of Fact: the claimant became employed by a children's home in August, 1994. Her last position was program supervisor. The employer was subject to the terms of the Family Medical Leave Act (FMLA). In June, 2000, the claimant used four weeks and two days of FMLA leave. That left a remaining balance of FMLA leave of seven weeks and three days to be used within
12 months. Effective November 21, 2000, the claimant again began FMLA leave which expired on January 12, 2001. At that time the claimant was unable to return to the full duties of her position because of a temporary disability. The employer had no part-time, light duty work for the claimant. The employer did not terminate her employment, but could no longer guarantee the claimant her position would be held open for her after the FMLA leave expired. The claimant underwent surgery on January 12, 2001. When she was released by her physician for full duty work, her position had been filled. The claimant filed an initial claim for unemployment benefits effective March 18, 2001.
Conclusions of law: The law provides that a claimant shall be disqualified for benefits for any week of unemployment due to a leave of absence, if the leave of absence was voluntarily initiated by the claimant. A bona fide leave of absence exists only when the employer and claimant have agreed upon a specific term and the claimant is guaranteed reinstatement to the same or a substantially similar position upon expiration of the leave. The testimony in this case shows that the employer did not guarantee reinstatement to the clamant after her FMLA leave expired on January 12, 2001.
Therefore, the claimant was not on a bona fide leave of absence after January 12, 2001, and she was not on a bona fide leave of absence when she filed her initial claim for unemployment benefits. When the claimant did not return to work upon the expiration of the bona fide leave of absence, she became separated from her employment. Because it was the claimant who did not return to her full duty position at that time, and not the employer preventing her from returning to her full duty position, the job separation is considered a voluntary leaving.
The law provides that a claimant who has voluntarily left work without good cause as defined in the statute shall be disqualified from receiving benefits. "Good cause" includes only such cause as is attributable to the employing unit or which consists of an illness or a disability of the claimant requiring separation from the work. The term "work" means any work, whether full- time, part-time or temporary.
The record and evidence in this case show that the claimant voluntarily separated from her employment on January 13, 2001, because she underwent surgery on January 12, 2001, and she was unable to return to work due to a temporary disability. Thus, the claimant became separated from her employment due to a disability requiring separation.
Accordingly, it is held that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation, and she is not disqualified from receiving unemployment benefits.
Decision: The determination of the claims adjudicator dated April 16, 2001, is MODIFIED to hold that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation. [Bracketed material and emphasis supplied]
It is not certain from the record herein that the foregoing January 3, 2002, unemployment compensation decision ever became final, pursuant to Chapter 120, Florida Statutes. Even if final, and therefore binding on the parties, the decision was made under statutory definitions and tests
different from those found in Chapter 760, Florida Statutes, and therefore, the decision is not binding in this case. However, the decision remains instructive as to matters of timeline, such as when CHS knew that Petitioner was claiming to be handicapped and from what cause. (See, below.) Clearly, it appears that Petitioner was not acknowledging any back and leg trouble to the unemployment compensation forum at least as late April 16, 2001, and probably not as of January 3, 2002.
Accordingly, it is found, on the basis of Exhibit P-7, that on March 18, 2001, Petitioner filed an initial claim for unemployment compensation benefits. Exhibit P-7 shows that the claim was apparently defended through CHS's Winter Park Office, and the record is unclear as to when Ms. Barry, whose office was located in Jacksonville, or Ms. Osborne, whose office was located in Tavares, found out about the claim. (However, see Findings of Fact 67 and 74.)
Because Ms. Barry had not received any further medical certification from Petitioner before Petitioner's leave extension expired on March 27, 2001, she legitimately could have terminated Petitioner's employment on the basis that Petitioner had neither returned to work nor requested an extension of her leave. Instead, On April 3, 2001, Ms. Barry sent, and Petitioner received, a letter advising that CHS had not received any further medical certification indicating Petitioner needed
leave beyond March 27, 2001, and stating that Petitioner needed to provide medical certification if she had a continued medical need preventing her from returning to work or that required continued restrictions in the type of work she could perform.
The letter further stated that if Petitioner were able to return to work, she must submit a fitness-for-duty certification.
Ms. Barry requested that Petitioner submit any documentation regarding her medical status no later than April 16, 2001.
On April 4, 2001, Ms. Barry received a telephone call from an attorney, Mr. Larry Colleton, requesting information on how Petitioner could apply for long-term disability insurance benefits. Ms. Barry did not believe Petitioner was eligible for long-term disability benefits because Petitioner had already been released for part-time work (see Finding of Fact 52), but she sent Petitioner an explanation of long-term disability benefits, including information that they applied to any employee who was disabled for six months or longer; an explanatory booklet; and forms to apply directly to the insurance company for that type of benefit. Ms. Barry copied Mr. Colleton with her explanatory cover letter to Petitioner.
Exhibit P-7 shows Mr. Colleton as Petitioner's lawyer in the unemployment compensation case. The record is silent as to whether Ms. Barry knew, on April 4, 2001, that there was an unemployment compensation claim or of Mr. Colleton's involvement
therein. Ms. Barry testified that she did not interpret
Mr. Colleton's telephone request concerning long-term disability benefits to be notification of a handicap or a request for an accommodation for a handicap.
On April 11, 2001, Petitioner faxed Ms. Barry a March 28, 2001 letter from Dr. Boggus advising that although Petitioner had been "completely and totally disabled from her usual occupation through March 23," she was now cleared to return to work. The fax also included a copy of Petitioner's completed application form for long-term disability benefits directed to CHS's insurance company. This form, signed by Petitioner, represented that she was disabled due to the 1999
automobile accident and the absence of any jobs within CHS that fit her limitations.
Upon receiving the application for long-term disability benefits signed by Petitioner, Ms. Barry assumed that Petitioner would thereafter deal directly with CHS's insurance company to support her application for long-term disability benefits, including sending it a medical excuse dated after the March 28, 2001 release by Dr. Boggus, which Ms. Barry had received. Ms. Barry submitted the employer portion of the long- term disability paperwork to the insurance company on April 30, 2001.
Exhibit P-7 shows that on April 16, 2001, an unemployment compensation claims adjudicator entered an order, which held Petitioner ineligible for unemployment compensation benefits. The undersigned is persuaded that this would be the last date reasonable to suppose that Ms. Barry did not know about the unemployment compensation claim.
By letter dated May 9, 2001, the long-term disability insurance company sent Petitioner a letter requesting a statement from her doctor to support her long-term disability application. Ms. Barry received a copy of this letter.
By letter dated June 4, 2001, the insurance company advised Petitioner that because Petitioner had previously been asked for proof of disability, and disability documentation had not been received, the insurance company was closing her file on long-term disability benefits. Ms. Barry received a copy of this letter, too.
The last medical release that Ms. Barry ever received from Petitioner was Dr. Boggus's unrestricted return to work release, dated March 28, 2001, which Ms. Barry received on April 11, 2001. (See Finding of Fact 65.)
By letter dated June 11, 2001, Ms. Barry notified Petitioner that she was being removed as an active CHS employee and that CHS was closing her personnel file because she had not submitted any doctor's certification indicating a medical need
for a continued leave of absence and she also had not applied for any vacant open positions within CHS. This letter was the effective termination of Petitioner by Respondent. The decision to terminate Petitioner was made by Ms. Barry and Ms. Osborne.
There is no persuasive evidence that, between March 28, 2001, when she was medically released to return to
work and June 11, 2001, when she was terminated, Petitioner had applied for any CHS positions.
Barry and Osborne each credibly testified that they had no reason to believe at any time material that Petitioner was handicapped, because Petitioner's physician, Dr. Boggus, had released her as being fully able to perform the functions of her job on March 28, 2001, and as of the date of her termination, Petitioner had never complained to Barry or Osborne that she believed that she was being discriminated against on any basis.
On June 19, 2001, after the first unemployment compensation decision which apparently went against her (see Finding of Fact 67), Petitioner wrote Heidi Burkett, an employee in the same Jacksonville CHS Human Resources Office as Ms. Barry. The letter referenced Petitioner's unemployment compensation claim number. By this letter, Petitioner requested reinstatement to the position of "Program Supervisor in the Lake County area or an elevated position." This letter mentioned nothing about any handicap.
On June 19, 2001, there were no Program Supervisor I openings in CHS, and Petitioner was not qualified for a position above Program Supervisor I. Petitioner testified that she had a "Paralegal Master's," but in Ms. Osborne's view, that degree would not render Petitioner eligible for any open elevated position. Petitioner would have had to have an advanced degree in a field related to childcare or in social work in order to fit the qualifications of any higher position with CHS. Furthermore, Petitioner would not have been promoted to an elevated position until her supervisors had an opportunity to work with her to make sure she had resolved the performance issues which were uncovered in her Program Supervisor I position while she was on leave.
There is no evidence that Petitioner made any further contacts after her June 19, 2001 letter in an attempt to return to CHS, or that she applied for, or expressed any interest in, any positions below Program Supervisor I inside or outside of Lake County.
The September 29, 2001 Charge of Discrimination was the first notice Ms. Barry had that Petitioner was claiming discrimination.
Petitioner claims that after June 2001, she was gainfully employed as a teacher "for a while" by the Lake County School Board and/or a technical institute. She did not
demonstrate that any accommodation for handicap was necessary in these employments. The record is silent as to her earnings since her separation from CHS.
CONCLUSIONS OF LAW
For the reasons set out in the Preliminary Statement, the Petition for Relief herein should not have been referred to the Division of Administrative Hearings, but due to the referral, the Division has jurisdiction of the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.
The Respondent is entitled to attorney's fees for the reasons set out in the Preliminary Statement, and as more fully evidenced by the record herein, in the total amount of $165.00. This entitlement is purely a discovery issue and is not affected by the merits of the case.
However, having considered the evidence on the merits, and giving Petitioner's limited credible testimony the benefit of the doubt, the undersigned concludes that Petitioner has not even established a prima facie case of handicap discrimination.
Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:
(a) . . .to discharge or to fail or refuse to hire an 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.
The United States Supreme Court set forth the procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed 2d 668 (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the Burdine formula, 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. The pre-eminent case in Florida remains Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).
When an individual alleges he has been subjected to "disparate treatment," the standards of proof require that the Petitioner show the existence of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under the Act." See McCosh v. City of Grand Forks, 628 F.2d 1058 (8th Circuit 1980), and Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57
L. Ed. 2d 957 (1978), citing Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977).
Once a Petitioner establishes this prima facie case, the burden shifts to the employer to rebut the adverse inference by articulating "some legitimate nondiscriminatory reason for the employee's rejection." See McCosh v. City of Grand Forks and McDonnell Douglas Corp. v. Green, both supra. But even if the employer meets this burden, the complaining party is given the opportunity to show that the proffered evidence is merely a pretext for discrimination, Id. at 804-805, 93 S. Ct. at 1025.
See generally Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Circuit 1980).
Florida has placed the burden upon the employee in handicap discrimination cases under Chapter 760, Florida Statutes, to establish a prima facie case by showing (1) that he or she has a physical impairment which substantially limits one or more of his or her major life activities; (2) that he or she is otherwise qualified for the position; and (3) that he or she was excluded from the position sought, solely by reason of his or her handicap. Only "reasonable accommodation" of handicapped applicants or employees is required. Kelly v. Bechtel Power Corp., 633 F. Supp 927 (S.D. Fla. 1996); Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994); Cabany v. Hollywood Memorial Hospital, 12 FALR 2020 (FCHR 1990).
Florida has yet to adopt the more enlightened term, "disability," and Section 760.10, Florida Statutes, does not
define "handicap." However, 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. (Emphasis supplied).
Id. at 510, FN 10.
The same definition of disability is set out in the Americans With Disabilities Act (ADA). In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the United States Supreme Court, in a unanimous decision, provided guidance, for purposes of the ADA, as to how "handicap/disability" is to be proven:
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Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment [substantially] limits a major life activity. (Bracketed material added for clarity).
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The word "substantial" thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities Cf.
Albertson's, Inc. v. Kirkinburg, 527 U.S., at 565, 119 S. Ct. 2162 (explaining that a "mere difference" does not amount to a "significant restric[tion]" and therefore does not satisfy the EEOC's interpretation of "substantially limits").
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"Major life activities" thus refers to those activities that are of central importance to daily life. In order for performing manual tasks to fit into this category -- a category that includes such basic abilities as walking, seeing, and hearing -- the manual tasks in question must be central to daily life. If each of the tasks included in the major life activity of performing manual tasks does not independently qualify as a major life activity, then together they must do so.
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We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term. See 29 CFR §§ 1630.2 (j)(2)(ii)--(iii)(2001).
It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment.
Instead, the ADA requires those "claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience
. . . is substantial." Albertson's, Inc. v. Kirkinburg, supra, at 567, 119 S. Ct. 2162.
. . .
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. . . Congress intended the existence of a disability to be determined in such a case- by-case manner. See Sutton v. United Air Lines, Inc., supra, at 483, 119 S. Ct. 2139; Albertson's, Inc. v. Kirkinburg supra. at 556, 119 S. Ct. 2162. The
determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. (The determination of whether an individual is substantially limited in a major life activity must be made on a case- by-case basis.)
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An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person.
* * *
When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.
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The definition is intended to cover individuals with disabling impairments regardless of whether the individuals have any connection to a workplace.
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. . . the manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation-specific tasks may have only limited relevance to the manual task inquiry.
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The Court, therefore, should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.
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Yet household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks.
Petitioner did not establish that at the time she went out on leave on November 19, 2000, she had a "handicap" as that term is understood under Title VII of the Federal Civil Rights Act, the ADA, or Chapter 760, Florida's Civil Rights Act. She did not establish that anyone in authority within CHS was on notice at any time that she was "handicapped," or that anyone in authority within CHS perceived her as "handicapped." She has not established that she needed any specific accommodation, what that accommodation might have been, or that she asked for an accommodation that was reasonable. Although the requirements of
the FMLA complicate this case somewhat, Petitioner has not demonstrated that she was treated any differently than any other employee under the same or a similar set of facts. She was out on medical leave for a condition which was not permanent in nature, and she did not return in a reasonable time period. She has not established that Respondent had any obligation to keep her position open after her FMLA leave ran out on January 12, 2001, or to re-hire her in a comparable position after that date, except for its own leave policy. She has not established that CHS applied its generous leave policy any differently to her than to any other similarly situated employee who was not handicapped, or even that CHS offended its own liberal leave policy with regard to her. She has not shown that CHS had any vacant positions that fit her restrictions when she was released with restrictions on February 27, 2001. She has not established that CHS had any vacant positions for which she was eligible when she was released without restrictions on March 28, 2001.
She has not even established that she requested reinstatement or applied for any positions until her June 19, 2001 letter, sent eight days after she was formally terminated by CHS. No employer is required to hold an employee's job open forever, to hire a former employee who does not apply for a new position, or to provide a position where one does not already exist.
Cases arising under legislation similar in intent to Chapter 760, Florida Statutes, are instructive. Under the ADA, a "qualified" individual is an individual with a disability who, without unreasonable accommodation, can perform the essential functions of the employment position. Assuming arguendo, but not ruling, that Petitioner was handicapped, her failure to routinely be on the job rendered her not "qualified." Tyndall v. National Educ. Centers, Inc. of California. 31 F.3d 209 (4th Cir. 1997). An employee is not a "qualified individual" under the Rehabilitation Act if she cannot meet the attendance requirements or be present on a routine basis. Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994). Even if the employee's failure to meet the attendance requirements is due entirely to the employee's disability, he is "not qualified" per the ADA. See Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997).
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 and Charge of Discrimination.
DONE AND ENTERED this 4th day of March 2004, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 4th day of March, 2004.
ENDNOTES
1/ By an Order entered herein on January 17, 2003, it was determined, in pertinent part that
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. . . the Petition [for Relief] materially complies with the applicable rules and statutes, and any defect in the Petition can be cured by requiring a More Definite Statement. The charge and petitioner are sufficiently similar that this case will be permitted to proceed upon the issue of "an alleged unlawful employment practice based upon disability discrimination."
The Petitioner is not, however, permitted to add types of discrimination such as age sex, and race, which have never been raised in the initial Charge [of Discrimination]. These claims, which have never been presented to the Commission are
barred, and evidence on these issues will not be entertained at the final hearing.
* * *
1. The Motion to Dismiss is granted to the extent that any claims as to age, sex, and racial discrimination are struck. It is denied as to all other grounds.
On the foregoing basis, Petitioner also was not permitted to explore at trial racial beliefs she holds, including whether a person or persons unknown deliberately and with discriminatory intent left a racially offensive citrus product packing label on her desk when citrus packing materials owned by the previous tenant had to be removed from a building to which Respondent CHS's offices were relocated in July 2000.
2/ See Garland v. Dept. of State, DOAH Case No. 00-1797 (RO July 24, 2000); McGill v. U.S. Marine/Bayliner Marine Corp. (RO March 18, 1996; FO approved); Hall v. Boeing Aerospace Operation, DOAH Case No. 94-6976 (RO March 29, 1995); FO approved); Wright v. HCA Central Florida Regional Hospital, Inc., DOAH Case No. 94-0070 (RO July 27, 1995); FO January 26,
1995); Pusey v. Knapp, DOAH Case No. 96-3321 (RO November 25, 1996; FO October 16, 1997).
3/ Petitioner had trouble staying on point during parts of her testimony and some of her digressions into her belief that she had seen "faces" of people she had worked with or knew during her employment with CHS when she was held in a psychiatric ward in June 2002; while she was having her baby in June 2000 (see Finding of Fact 9) and sometime in January or February 2001, when she claimed to have tried to retrieve her personal belongings from her old CHS job location, did not enhance her credibility or inspire confidence in her ability to accurately recall and relate past events.
4/ It is also conceivable that Petitioner was referring to attending an unemployment compensation hearing in Orlando in March or April 2001, but in this Finding of Fact she has been given the benefit of the doubt that she may have been seeking employment within CHS but did not actually apply.
5/ Petitioner testified she learned in January or February 2001 that her job as Supervisor I of the Lake County Division was being advertised, and that it was hard to communicate with CHS
after that point. She also claimed that at about time, and without notice from CHS that it would be less than usual, she received her last paycheck, which was for only $72, under the "use up accrued paid leave before unpaid leave" policy.
Mathematics suggests her accrued leave was used up at the end of February 2001. (See Finding of Fact 53). However, exhibits in evidence dated after January 2001, including but not limited to documents which Petitioner herself faxed to Ms. Barry, suggest that Petitioner has "telescoped" a lot of events into an erroneous time frame or is otherwise not credible in testifying that CHS did not contact her and she could not contact CHS after January 2001.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Christine Harris Post Office Box 624
Mount Dora, Florida 32757
Joann M. Bricker, Esquire Joann M. Bricker, P.A.
204 Royal Tern Road, North
Ponte Vedra Beach, Florida 32082
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 2004 | Agency Final Order | |
| Mar. 04, 2004 | Recommended Order | Petitioner failed to establish a prima facie case of handicap discrimination. She did not establish or advise Respondent, nor did Respondent perceive, that she had a handicap. Earned and family medical leave was used up prior to termination. |
