STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSELISA COCALIS, )

)

Petitioner, )

)

vs. ) Case No. 03-2102

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on August 6, 2003.

APPEARANCES

For Petitioner: Roselisa Cocalis, pro se

15471 Southwest 110th Terrace Miami, Florida 33196

For Respondent: J. Ann Cowles

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).

PRELIMINARY STATEMENT

By Charge of Discrimination dated May 23, 2002, and filed May 28, 2002, Petitioner alleged that Respondent terminated her employment on May 10, 2001, due to her sex and disability. On April 24, 2003, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

On May 29, 2003, Petitioner filed a Petition for Relief.

The petition alleges that Petitioner was injured on November 17, 1998, when she was struck by a truck while performing maintenance work at a toll plaza. The petition alleges that Petitioner underwent back surgery in March 2000 and was out of work until August 2000. The petition alleges that Petitioner called in sick, due to her back, on January 7, 2001, and returned to work on January 9, 2001, but was told that Respondent had no light duty for her to perform until her back pain subsided.

The petition alleges that Petitioner visited her physician on January 17, 2001, and reported to work on January 18, 2001, until, after two hours, her supervisor sent her home. On January 23, 2001, Petitioner allegedly visited a physician and went to work, but was again sent home with the explanation that she could not work due to her restrictions.

Subsequently, Petitioner's supervisor allegedly placed Petitioner on 12 weeks' leave, under the Family and Medical

Leave Act. The petition alleges that Respondent mailed Petitioner a letter dated April 18, 2001, advising her to return to work or she would be dismissed. However, the petition alleges that, when she reported to work, her supervisor sent her home because he had no light duty that she could perform. By letter dated May 10, 2001, Respondent allegedly informed Petitioner that she was dismissed due to unauthorized leaves of absence and inability to perform the duties of her job. The petition alleges that Respondent allowed a male coworker to continue to work with a greater physical disability.

At the hearing, Petitioner called four witnesses and offered into evidence 17 exhibits: Petitioner Exhibits 6-8, 11-14, 17, 19-20, 23-26, and 29-31. Respondent called three witnesses and offered into evidence 18 exhibits: Respondent Exhibits 1-2, 4-15, and 17-20. All exhibits were admitted except Petitioner Exhibits 17 and 23 and Respondent Exhibit 2, which were proffered.

The court reporter filed the transcript on September 11, 2003. Respondent filed a proposed recommended order on September 26, 2003.

FINDINGS OF FACT

1. Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the

   equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public.

2. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions.

3. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work.

4. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000,

   Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000.

5. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job.

6. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001.

7. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed

   Petitioner that she would be required to resume her regular duties on April 23, 2001.

8. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer.

9. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays.

10. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays.

11. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

13. Section 760.10(1)(a) provides that an employer commits an unlawful employment practice by discharging an employee because of her sex or handicap.

14. Petitioner has the burden of proof in this case.

Petitioner has failed to show that the basic reason cited for her discharge--inability to perform her work--was pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Petitioner could only perform light duty, and Respondent had no light duty to assign her. Accordingly, Petitioner has failed to prove that she has been the victim of an unlawful employment practice within the meaning of Section 760.10(1)(a)

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 2nd day of October, 2003.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Roselisa Cocalis

15471 Southwest 110th Terrace Miami, Florida 33196

J. Ann Cowles

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-002102

Orders for Case No: 03-002102