Upon due notice, a disputed-fact hearing was held in this case on August 15, 2008, in Tallahassee, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
Whether Respondent Employer committed an unlawful employment practice against Petitioner on the basis of her age and/or disability.
Following a Determination: No Cause and a timely-filed Petition for Relief, this case was referred to the Division of Administrative Hearings on or about February 18, 2008.
The file of the Division reflects all intervening pleadings, orders, and notices prior to final hearing on August 15, 2008.
At final hearing, Richard LaBelle, an attorney admitted to practice in Florida, and a director of Respondent corporation, presented a corporate resolution permitting him to represent Respondent. It was, therefore, unnecessary to inquire of
Mr. LaBelle for purposes of qualified representative status.
After oral argument on the day of final hearing, Petitioner's "Motion Requesting Court to Allow Amended Complaint," was denied, and her "Amended Complaint and Request [sic.] the Court Consider this Case a Mixed-Motive Case" was struck.1/
At final hearing, Petitioner testified on her own behalf and had Petitioner's Exhibits 2A, 3A, 3B, 4B, 5A, and 3C admitted in evidence. Her Exhibit 6A was also admitted over objection. Her Exhibit P-AA was cumulative and was not admitted. Richard LaBelle and Tara Bremer (by telephone)2/ testified on behalf of Respondent. Exhibits R-1 and R-2 were admitted in evidence.
No transcript was provided.
Each party's timely-filed Proposed Recommended Order3/ has been considered.
Petitioner is an African-American female who is currently 62 years of age.
Petitioner's Complaint of Discrimination, filed July 25, 2007, with the Florida Commission on Human Relations (FCHR) alleged discrimination only on the basis of
"disability/handicap" and "age." The Complaint states that the last discriminatory act occurred on June 20, 2007. The timely- filed Petition for Relief states, in pertinent part, only "No accommodation was made for my disabilities." Discrimination on the basis of race was first raised before the Division of Administrative Hearings.4/
Respondent corporation is in the business of teaching the parents of disabled children ways to access and utilize available services related to support, education, information, resources and advocacy for effective parental involvement in their children's education. Corporate headquarters are located in Clearwater, Florida, but Respondent maintains a presence and/or offers services in other parts of Florida through its employees, clustered into regions.
Petitioner was hired on or about October 29, 2006, as a parent awareness educator, based in Tallahassee. At least by June 2007, Petitioner was specifically directed to contact the school districts' Title I Parent Involvement Specialists, the Florida Department of Education's Bureau of School and Community, and the Tallahassee Parks and Recreation Department's neighborhood centers, to arrange presentation of Parental Resource Information Center (PRIC) workshops. At some point, Respondent requested that Petitioner locate donated office space.
Petitioner testified that she has diabetes and high blood pressure. However, she presented no corroborative medical evidence to that effect.
Petitioner testified that she needs certain medications, but no one, including Petitioner, testified to any physical inability to perform Respondent Employer's job requirements, with or without medication.
While it is clear that one motivating factor in Petitioner's continuing to work at the age of 60-61, was to obtain health insurance through her employer, there is no credible evidence that she specifically informed any supervisor that she had diabetes or high blood pressure.
The only evidence that any of Respondent's supervisors had any knowledge of her diabetes and/or high blood pressure is
that Petitioner testified that her supervisor permitted Petitioner to have a friend drive Petitioner from Tallahassee to Clearwater for training sessions and meetings, including the termination meeting on June 20, 2007. That said, Petitioner conceded that every accommodation she actually requested had been granted by Respondent.
Two witnesses involved in Petitioner's termination testified that they had not known Petitioner's age on the date of her termination and had never been made aware, even at the termination meeting on June 20, 2007, that Petitioner had any medical problems.
Effective June 20, 2007, Respondent Employer terminated Petitioner for falsifying or altering company records; not performing and fulfilling job duties as required in her job description; and willingly and knowingly using the employer's non-profit 501(c)3, status to have the electricity and phone turned on in the employer's name in a location the employer had not leased and without getting prior permission from the employer.
By far, the greatest thrust of Petitioner's case was that she believed that Respondent employer discriminated against her by not timely placing her on Respondent's health insurance. She reached this hypothesis because she did not receive an insurance card.
The parties agree that Petitioner was promised that she would receive health benefits at the beginning of the next month following successful completion of her 90-day probationary period. Because she was hired on October 29, 2006, the earliest Respondent's health insurance could have gone into effect would have been February 1, 2007.
While she was still employed, Petitioner did not believe her supervisors when they told her she was covered by Respondent's health insurance, and Petitioner was unable to demonstrate health coverage to a physician or hospital until a couple of weeks before she was terminated on June 20, 2007, because she had received no "insurance card" from Respondent's health insurance carrier.
Petitioner testified credibly that at some point during her employment with Respondent, her supervisor told her to work out getting the insurance card directly with Respondent's health insurance carrier. When Petitioner tried to deal directly with the carrier, a carrier's representative told Petitioner by telephone that her insurance card had been mailed to Clearwater, Florida, but the carrier's representative refused to divulge the mailing address in Clearwater to Petitioner, because Petitioner could not verify her identity during their telephone conversation.
Petitioner had provided Respondent eight different addresses over the span of her eight months' employment. At least one of the expense checks Respondent mailed to Petitioner was returned as undeliverable. Richard LaBelle, Respondent's Executive Director, represented that the health insurance carrier probably could not get Petitioner's insurance card to her at any of the addresses Respondent provided while Petitioner was still living at that address.
Petitioner never received an insurance card, but by May 15, 2007, she received a fax showing that she had been a "covered employee" prior to May 5, 2007. Petitioner was, indeed, "covered" by Respondent's health insurance carrier before the May 5, 2007, notification, but how soon she was first covered was not proven.
Petitioner did not establish any nexus between her race, medical condition(s), or age and the failure to receive her insurance card either directly from the insurance carrier in Jacksonville or from Respondent Employer in Clearwater. There also was no proof that the delay in providing her with other evidence of coverage (the fax) constituted discrimination on any basis.
Petitioner testified that Respondent Employer never gave her a position or job description, adequate training, or a working laptop computer, and unjustly terminated her, but she
did not show that Respondent treated any younger or older employees or any non-handicapped employees any differently than she was treated.
In fact, Petitioner had admitted in evidence an exhibit titled "Work Plan" dated June 12, 2007, that is a job- description, of sorts. At the very least, it constitutes specific instructions of what the Respondent expected her to do at that point in time. (See Finding of Fact 4.)
Respondent conceded that Petitioner was issued a laptop computer which malfunctioned during a training session, but it is undisputed that Petitioner also received a replacement laptop computer. Mr. LaBelle testified credibly that he had seen Petitioner at two training sessions and that when Petitioner returned the replacement laptop at the termination meeting on June 20, 2007, the replacement laptop was serviceable and had never been used by Petitioner.
With regard to her allegations of "no job description" and "lack of training," Petitioner asserted that she had not known she was supposed to work in 27 counties, instead of in the three counties she had actually addressed during her employment with Respondent. Indeed, there is no written material in evidence stating that Petitioner was responsible for "27 counties," but it appears that in eight months of employment, Petitioner only held six teaching meetings or workshops.
Respondent did not terminate Petitioner specifically for not covering 27 counties. (See Finding of Fact 10.)
Respondent became concerned that Petitioner was falsifying records for the workshops she claimed to have conducted. Petitioner's supervisors and paymaster noted that Petitioner had been repeating locations and recipient agencies for her presentations instead of doing more workshops in many different locations. Accordingly, Respondent asked Petitioner to justify what she had been doing.
It is undisputed that on May 27, 2007, Petitioner went to "Starting Point," a facility for men with substance abuse problems, located about 30 miles from her home. She had been to that location and had collected her hourly wage for holding one or more workshops there in the past. She arrived at about 11:30
a.m. At about 12:00 p.m., facility residents, their wives, and their children arrived after having previously attended church services Lunch was served, and a "sobriety party" followed. Petitioner admitted that she presented no two-hour formal workshop that day, but she charged her employer for eight hours of work. During the approximately seven hours Petitioner spent at "Starting Point" that day, Petitioner answered two job- related questions while she socialized.
Respondent would have accepted a three-hour bill from Petitioner, based on an estimated total travel time in both
directions for one hour and for an estimated two-hour workshop. However, the sign-in sheet Petitioner provided to Respondent showed the same names as on the sign-in sheet for one or more previous workshops Petitioner had conducted. Mr. LaBelle thought Petitioner's immediate supervisors had previously counseled her about going to schools and about not repeating locations. When given a chance to explain what she did during the eight hours she was claiming on her May 27, 2007, timesheet, Petitioner explained the May 27, 2007, event as described in Finding of Fact 23. Accordingly, Respondent's management decided Petitioner was not fulfilling her job duties according to her job description, and she was, in effect, terminated for falsifying her timesheet by claiming she had worked a full eight hours on May 27, 2007.
Respondent's personnel manual provides, in pertinent
part:
5.6 Dismissal
* * *
. . . some offenses may warrant immediate dismissal. These include but are not limited to:
4) Falsifying or altering company records.
Petitioner admitted that she used Respondent's 501(c)3. tax-free identification card to get the electricity turned-on at a Tallahassee address.
Petitioner asserted that "no one told me not to" use the card for that purpose, but the written evidence she submitted and the more credible testimony of Mr. LaBelle support findings that Petitioner was given written instructions by her immediate supervisor on June 12, 2007, not to do anything more about the Tallahassee building until Petitioner received written authorization from her project director, and that Petitioner was orally instructed by Mr. LaBelle not to do anything with that location until Mr. LaBelle could review the donor's lease.
Written authorization by her supervisor was not produced by Petitioner. Mr. LaBelle never received a lease for review.
Respondent has a policy that its tax-free identification card may only be used by employees for travel (motels) and for the legitimate purchase of supplies. In light of Petitioner's acknowledgement that she was told that was the purpose of the card and the evidence as a whole, Petitioner's assertion that she had not been told that motels and supplies were the exclusive purposes of the card is not credible.
To her credit, Petitioner did not intend the Tallahassee building for her private use. Petitioner intended to use the building as a base for conducting Respondent's business. Petitioner expected the location to be donated to
Respondent, but what she did was clearly outside her delegated authority.
Mr. LaBelle viewed Petitioner's actions with regard to the Tallahassee building as dishonest and insubordinate, and he believed that Petitioner had exposed Respondent to potential liability as a result of her unauthorized actions. It was his ultimate decision to terminate Petitioner on June 20, 2007, for the three reasons set out in Finding of Fact 10.
Neither Respondent Employer's view of the building incident as "insubordination" nor Petitioner's regarding it as "employee initiative" bears any relationship to Petitioner's age or alleged disability.
After termination, Petitioner sought unemployment compensation from Respondent. Respondent defended against Petitioner's application as permitted by Chapter 443, Florida Statutes. Petitioner lost at one stage and prevailed on review by the appeals referee whose opinion states, in pertinent part, ". . . while the employer may have made a valid business decision in discharging [Petitioner], the allegations of misconduct connected with work have not been substantiated with a preponderance of competent substantial evidence."
At hearing, Petitioner asserted also that in April 2008, nearly a year after her termination, she was discriminated against because Respondent's personnel requested that she leave
a private party Respondent was giving at a Tallahassee restaurant. Respondent admits as fact that Respondent was requested to leave this event because she was no longer an employee; had not been invited; and because Respondent feared Petitioner might become disruptive due to this on-going litigation.
Petitioner apparently seeks $365,000.00 in back pay, and compensatory and punitive damages, but she presented no evidence to support that figure.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and Chapter 760, Florida Statutes (2007). Section 760.10(1)(a) prohibits discrimination in employment based upon, among other things, race, age, or handicap/disability.
Petitioner claims throughout her Proposed Recommended Order to have been more harshly treated than non-African- American employees. The evidence as a whole does not support this claim, but in any case, it is a moot point because she did not timely raise the issue of racial discrimination before the Florida Commission on Human Relations within the 365-day limitation of Section 760.11(1), Florida Statutes (2007). Therefore, the Division of Administrative Hearings does not have
jurisdiction of any issue related to racial discrimination. (See Ward v. Florida Dept. of Juvenile Justice, 212 F. Supp. 2d 1349 (N.D. Fla. 2002); Cox v. University of Florida, DOAH Case No. 03-4672 (RO: June 15, 2008; FO: not provided to DOAH by FCHR); Young v. Dept. of Business and Professional Regulation,
DOAH Case No. 03-1140 (RO: July 1, 2003; FO: February 26, 2004);
Luke v. Pic 'N' Save Drug Co., Inc., DOAH Case No. 94-0294 (RO: August 25, 1994; FO: December 8, 1995; Austin v. Florida Power
Corp., DOAH Case No. 90-5137 (RO: June 20, 1991; FO: October 24,
1991, filed October 30, 1991).
Petitioner's success with her unemployment compensation claim/appeal is not binding herein and has no effect in this forum. (See Newberry v. Florida Dept. of Law Enforcement, 585 So. 2d 500 (Fla. 3rd DCA 1991); Walley v. Florida Game & Fresh Water Fish Commission, 501 So. 2d 671 (Fla. 1st DCA 1987); Neidhart v. Federal Savings and Loan Assn., 498 So. 2d 594 (Fla. 2nd DCA 1986); Cf. City of Tampa v. Lewis, 488 So. 2d 860 (Fla. 2nd DCA 1986)).
Petitioner claimed to have been discriminated against on the basis of age and/or disability, but she did not establish as fact that she was denied a job description, training, or equipment, or that she was terminated on the basis of disability or age. She was not denied health insurance at all, let alone denied health insurance based on disability or age.
Furthermore, any delay in Petitioner's receiving her health insurance card or other verification of health insurance coverage was not the result of discrimination, but the result of postal or bureaucratic errors engendered by Petitioner's sequential list of addresses.
To establish a prima facie case of termination by an employer's discrimination based on a handicap, a petitioner must prove (1) she is handicapped within the meaning of Chapter 760, Florida Statutes, "The Civil Rights Act"; (2) she is otherwise qualified for her job, with or without reasonable accommodation; and (3) she was terminated solely by reason of her handicap.
See Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (11th Cir. 1999); Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907 (11th Cir. 1999); and Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).
Petitioner has failed to establish the first element of the prima facie test, because she has not shown that she is "handicapped" within the meaning of Chapter 760, Florida Statutes, or that her employer perceived her as handicapped.
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,
has a record of such impairment, or
is regarded as having such an impairment." Examples of major life activities including caring for oneself, breathing, learning, and working. (Emphasis supplied). Id. at 510, FN 10.
Almost the identical definition of "disability" is set out in the Americans With Disabilities Act (ADA). See 42 U.S.C.
§ 12102(2).
Many federal guidelines/regulations recognize diabetes as a "physical or mental impairment." See 45 C.F.R. 84.1(A)(A)(3), also cited as 45 C.F.R. Part 84, Appendix A, Subpart A, 3, dealing with Medicaid. However, nowhere have these guidelines been shown to create even a rebuttable presumption. Affirmative proof of "disability" (as opposed to merely "disease") is still required to state a prima facie case under both the ADA and The Rehabilitation Act.
In Toyota Manufacturing, Kentucky, Inc., v. Williams,
122 S. Ct. 681 (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. See also 42
U.S.C. Section 12112(a) (2000); Mont-Ros v. City of West Miami,
111 F. Supp. 2d. 1338 (S.D. Fla. 2000); D'Angelo v. Conagra Foods, Inc., 422 F.2d 1220 (11th Cir. 2005).
Merely having an "impairment" does not make one disabled for purposes of ADA. Claimants also need to demonstrate that their impairment substantially limits a "major life activity." The word "substantial" clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities. See Albertson's, Inc. v. Kirkinburg, 527 U.S. 555, 119 S. Ct.
2162 (1999) (explaining that a "mere difference" does not amount to a "significant restrict[tion] and therefore does not satisfy the EEOC's interpretation of "substantially limits"). To present a prima facie case, the employee must prove that the extent of limitation on a major life activity in terms of his own experience is substantial. Corrective measures (internal to the body and brain or external via hearing aids or glasses) must also be included within the assessment of disability.
"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 does not independently qualify as a major life activity, then together they must do so. To be "substantially limited," the employee must be significantly restricted in her ability to perform either a class of, or a
broad range of, jobs in various classes as compared to the average person having comparable training, skills, or abilities. 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, such as working. The impairment's impact must also be permanent or
long-term. See 29 C.F. R. § 1630.2(j)(2)(ii-iii) (2001); Richio v. Miami Dade County, 163 F. Supp. 2d 1352 (U.S. S.D. Fla.
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, and it is noted that Petitioner herein did not even submit such a medical diagnosis. Instead, the ADA requires those "claiming the Act's protection .
. . to prove 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, 527 U.S. at 567, 119 S. Ct. 2162.
An individual assessment of the effect of an impairment is particularly necessary when the impairment, like diabetes or high blood pressure, 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 his specific job. For his condition to be a "disability," the employee must be precluded by his condition from more than one type of job, even if the job foreclosed is his job of choice. Cash v. Smith, supra.
Herein, Petitioner only proved that she preferred not to drive long distances. She did not prove she could not drive to hold her workshops in her assigned region. Petitioner accordingly did not establish that she was disabled, and, ultimately, she conceded that every accommodation she had sought had been granted by Respondent Employer. An employee whose disability has been even reasonably accommodated by the employer cannot prevail.
Petitioner also cannot prevail on age discrimination.
While no specific age "group" is protected, Petitioner must, at a minimum, establish that she was treated differently than someone, because of her age. She did not prove this. There is no prima facie case herein based on age.
As to the allegation of discriminatory termination, Petitioner also fails. This employer's choice of words, "falsifying or altering records" comports with Section 5.6 of its personnel manual's terms for immediate dismissal, but it is
somewhat misleading. The cornerstone of one of Respondent's reasons for terminating Petitioner was not precisely that she "falsified" or "altered" records, but that she claimed pay for eight hours of work when, at most, she was entitled to only three hours. Petitioner's attending a social event in the same location as she had previously held a workshop with the same group of people was not necessarily inappropriate. However, when she simultaneously claimed to be working a full eight hours merely because she answered a few job-related questions during a social event, that was cause for termination, just as any "padding of an expense account" would be grounds for termination.
In summary, none of Petitioner's allegations of unequal treatment re: job description, training, or equipment were established as fact. Respondent's termination of Petitioner because it viewed as wrong her practice of exaggerating the number of hours she worked was not shown to be related to Petitioner's age or alleged disability. Petitioner's use of Respondent's tax-free status was also contrary to direct orders and amounted to insubordination, regardless of any good motive Petitioner may have had. Perceived insubordination resulted in her termination, and that perception by the employer was not shown to be related to Petitioner's age or alleged disability.
Although Petitioner and Respondent characterize the reasons she was terminated in different ways, there is no evidence that the reasons Respondent put forth for terminating Petitioner were pre-textual. Assuming arguendo, but not ruling, that a prima facie case was presented on any theory, it was amply rebutted by Respondent.
Finally, although the Federal Acts and the Florida Statute recognize the concept of discrimination via "retaliation" for filing a discrimination complaint, none of those concepts equate with compensating an uninvited former employee and active litigant who is refused admission to a former employer's appreciation and fundraising soiree held nearly a year after her termination. Moreover, Petitioner never amended her charge/petition in order to allege either "retaliation" or "on-going discrimination," so as to establish jurisdiction of that situation.
Petitioner has not borne her burden of proof under any theory.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief.
DONE AND ENTERED this 10th day of October, 2008, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2008.
1/ This item was not really a "complaint" at all, but legal argument. Because it was filed only one day before hearing, it was untimely. It also did not meet the requirement of having been addressed by FCHR prior to FCHR's Determination: No Cause, which Determination represents the "proposed final agency action" herein, pursuant to Chapter 120, Florida Statutes. (See Conclusions of Law.)
2/ The notary's documentation, as amended, is deemed sufficient for consideration of Ms. Bremer's telephone testimony.
3/ The parties used different titles. Petitioner filed her PRO on September 5, 2008. Respondent filed its PRO on September 3, 2008.
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.
