STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA A. CHENEVERT,

Petitioner,

vs.

VIRGIL & BROTHERS, INC.,

Respondent.

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) Case No. 03-4676

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RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on April 1, 2004, in Sanford, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Melissa Chenevert, pro se

2646 Fallbrook Drive

Oviendo, Florida 32765

For Respondent: John D. Mahaffey, Jr., Esquire

Mahaffey, Leitch & Burgunder 3113 Lawton Road, Suite 225

Orlando, Florida 32803 STATEMENT OF THE ISSUE

Whether Respondent, Virgil and Brothers, Inc., discriminated against Petitioner, Melissa Chenevert, because of her relationship with disabled persons in violation of

Section 760.10, Florida Statutes (2003).

PRELIMINARY STATEMENT

On April 22, 2002, Petitioner, Melissa Chenevert (Petitioner), filed an Amended Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent, Virgil and Brothers, Inc. (Respondent or Virgil and Brothers), discriminated against Petitioner because of her relationship/association with disabled persons in violation of Chapter 760, Florida Statutes (2003), and Title VII of the Civil Rights Act of 1964. Petitioner alleged that she was terminated after she took time off from work to help her mother, who had recently had open-heart surgery and was later diagnosed with lymphoma.

On October 2, 2003, FCHR issued a Notice of Determination finding no reasonable cause to believe that an unlawful employment practice had occurred.

On November 5, 2003, Petitioner filed a Petition for Relief (Petition) with FCHR. The Petition alleged that Petitioner was discriminated against because she had to take time off from work to take her "disabled daughter" to doctor appointments and to take care of her "disabled mother." The Petition also alleged that Respondent discriminated against Petitioner by terminating her from her job because of her "handicaps," described in the Petition as "my own mental health appointments." Despite including the latter charge in the Petition, during her opening

statement and testimony at the hearing, Petitioner indicated that she was only alleging discrimination based on her association with disabled persons.

At the hearing, Petitioner testified on her own behalf and presented the testimony of two witnesses. Petitioner offered and had one exhibit received into evidence. Respondent presented the testimony of four witnesses and had six exhibits, including the deposition transcript of Alexandra Odaom, received into evidence.

A Transcript of the proceeding was filed on April 21, 2004.

At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days after the transcript was filed. Petitioner filed her Proposed Recommended Order on April 30, 2004, and Respondent filed its Proposed Recommended Order on May 4, 2004. Both Proposed Recommended Orders have been carefully considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent hired Petitioner in 1999 to work as a receptionist/secretary for the front office. One of Petitioner's primary responsibilities was to "man" the front office desk, answer the phones, and to serve as the contact person for personnel working in the field. Petitioner was

   initially hired as an hourly-compensated employee at 40 hours per week.

2. Approximately one year after her initial employment, Petitioner became a salaried employee. As a salaried employee, Petitioner was eligible for benefits (i.e., vacation time, sick time, and 401K participation). At a later time, Petitioner was put back on hourly compensation because she took excessive time off from work. At that time, Petitioner admitted that she was having personal problems and would try to do better with respect to meeting her responsibilities as an employee.

3. After Petitioner was put back on hourly compensation, she continued as an hourly employee until she was terminated.

4. During Petitioner's employment at Virgil and Brothers, Petitioner's daughter had frequent medical and counseling appointments. Petitioner had to take time off and/or adjust her work schedule to take her daughter to these appointments.

5. At all times relevant to this proceeding, Petitioner's mother lived with her. In early March 2000, Petitioner's mother had open-heart surgery and was diagnosed with lymphoma. During the time her mother was ill, Petitioner's mother asked Petitioner if she could take one or two weeks off to take care of her.

6. In or about February 2002, prior to her mother's surgery, Petitioner requested that she be made a part-time

   employee. The position occupied by Petitioner was a full-time position, and she could not be accommodated with respect to her request to become part-time.

7. Although Petitioner was told that her request to become part-time could not be granted, she began to work as though she were a part-time employee. On many days, particularly in February and March of 2002, Petitioner would leave work early and miss whole days of work. Sometimes when Petitioner left early, she left the front desk unmanned, even though the business was still open.

8. After her request to become a part-time employee was turned down, at some point in or about early 2002, Petitioner requested that Respondent give her a leave of absence. When inquiry was made as to how long a leave of absence she wanted, she was unable to estimate a time.

9. A few days after requesting a leave of absence, Petitioner came to Respondent's office to pick up her paycheck and indicated that she had not reported to work because her mother was in the hospital. Again, Petitioner was asked by Respondent how much time off she was going to need. Petitioner stated that she did not know. Respondent informed Petitioner that her position could not be left open indefinitely without having some idea of when she would be coming back to work. Respondent then fired Petitioner.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

11. Petitioner alleges that Respondent discriminated against her in violation of Section 760.10, Florida Statutes (2003), by terminating her employment because of her association with disabled or handicapped persons.

12. Section 760.10, Florida Statutes (2003), prohibits unlawful employment practices and provides in relevant part the following:

    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. (Emphasis supplied.)

          
          

13. The plain meaning of Subsection 760.10(1)(a), Florida Statutes (2003), is that an employer covered by that provision is prohibited from discharging an individual from employment because of "such individual's . . . handicap."

14. Here, the issue, as framed by Petitioner, does not meet that threshold requirement of Subsection 760.10(1)(a), Florida Statutes (2003). Petitioner does not allege that she is

    handicapped or disabled. Rather, she asserts that her mother and daughter are handicapped or disabled and that because of their conditions, she was required to take care for them and/or take them to various medical appointments. Petitioner asserts that these responsibilities required that she take time off from work and, as a result thereof, she was terminated. Based on these assertions, Petitioner claims she was terminated from her job because of her association/relationship with handicapped or disabled persons, namely her mother and daughter.

15. The allegations made by Petitioner do not constitute discrimination within the meaning of Subsection 760.10(1)(a), Florida Statutes (2003). Therefore, Petitioner is not entitled to relief for violations under that provision.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

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

DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 28th day of May, 2004.

COPIES FURNISHED:

Melissa A. Chenevert 2646 Fallbrook Drive

Oviedo, Florida 32765

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

Tallahassee, Florida 32301

John D. Mahaffey, Jr., Esquire Mahaffey, Leitch & Burgunder 3113 Lawton Road, Suite 225

Orlando, Florida 32803

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

Tallahassee, Florida 32301

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: 03-004676

Orders for Case No: 03-004676