The Issue Whether Petitioner was subjected to age, marital status, and disability or perceived disability discrimination while employed by Respondent, in violation of Subsection 760.10(1)(a), Florida Statutes (2009).1 Whether Petitioner was subjected to retaliation while employed by Respondent, in violation of Subsection 760.10(7), Florida Statutes.
Findings Of Fact Petitioner, Deborah McRae, is a registered pharmacist, licensed in Florida and Georgia since January 25, 1978. Petitioner has been employed by Respondent, Kash N' Karry, d/b/a Sweetbay Supermarket (Sweetbay or Respondent), from January 2005 to the present. Petitioner is currently on an extended leave of absence, but remains employed by Respondent. Respondent is an employer under the Florida Civil Rights Act (FCRA) of 1992. Petitioner’s Employment at the Daniels Parkway Store From January 2005 until December 2008, Petitioner worked as an assistant pharmacy manager inside Sweetbay store located on Daniels Parkway in Fort Myers, Florida. Her job duties included filling and dispensing prescriptions, counseling customers, screening for drug interactions or patient allergies, communicating with physicians to clarify prescriptions, and contacting insurance companies when necessary. Although the Daniels Parkway pharmacy was relatively slow, Respondent never promised Petitioner that she would not be required to work at a high-volume store. In fact, during the time she was employed at the Daniels Parkway store, she covered shifts at higher-volume stores, including the North Fort Myers store, whose pharmacy had at least double the weekly volume of the Daniels Parkway store. Although upper management had not been informed of problems with Petitioner’s job performance at the Daniels Parkway store, the pharmacy manager and store management received some complaints from customers about Petitioner being rude and providing poor customer service. Store management handled these complaints informally by speaking directly to Petitioner about them. Petitioner’s pharmacy manager at the Daniels Parkway store was Patrick Fung (Fung). In addition to a few customer complaints to Fung, Petitioner would leave a lot of tasks for Fung to complete the following day and would create difficulties with respect to the pharmacy schedule. In February 2009, Respondent permanently closed the Daniels Parkway store. Earlier, in mid-January 2009, the company announced to the associates that the Daniels Parkway store would be closing. In December 2008, Petitioner took a medical leave of absence for back surgery. Although she mentioned that she was having back surgery, Petitioner did not inform anyone in Respondent's management that she had a permanent disability concerning her back or that she had any other disability. Respondent's management did not know Petitioner had, nor did it regard Petitioner as having, a permanent disability. Petitioner never asked for an accommodation for her back pain or any mental health disability. Indeed, Petitioner never submitted any documents to Respondent, stating that she had a disability or any type of mental health condition. Petitioner never told Respondent that she had a mental health condition. No one in Respondent's management knew or thought that Petitioner had a mental condition and never saw any documentation to that effect. Petitioner was still on a medical leave of absence in early February 2009, when the Daniels Parkway store closed. Employment and Promotion to Pharmacy Manager Position at Lehigh Acres In mid-January 2009, when the company announced the Daniels Parkway store closing, there were only two open pharmacy positions in the region: the assistant pharmacy manager position at the store in Lehigh Acres near Fort Myers, Florida, and the assistant pharmacy manager position in the store in Estero, Florida. The regional pharmacy business supervisor during the relevant time period was Diane Fagan (Fagan). Fagan made an effort to place Petitioner and Fung into the two open pharmacy positions. Fagan felt both Fung and Petitioner were good pharmacists and wished to retain them with Respondent. Because Fung was a pharmacy manager and actively on the payroll, he was given the option of accepting either of the two open assistant pharmacy manager positions or, alternatively, to accept a severance package. Fung voluntarily selected the Estero position, to become effective after the Daniels Parkway store closed. In doing so, Fung voluntarily accepted a demotion with a concomitant reduction in pay. It is undisputed that Fung was qualified for the Estero position, he was Petitioner’s supervisor at the time, and, therefore, it was reasonable that he be offered the position first. By allowing Fung to decide between the two positions, Fagan did not consider Petitioner’s or Fung’s age, marital status, or disability status. Petitioner failed to provide any evidence as to Fung’s age, marital status or disability status, and whether they differed from Petitioner’s. There is no evidence on this issue that demonstrated that any decisions made by Respondent regarding Petitioner’s employment were made because of age, her marital status, disability or the perception that she had a disability. After Fung selected the Estero position, Petitioner was offered the remaining assistant pharmacy manager position at the Lehigh Acres store, to become effective after the Daniels Parkway store closed, and when she returned from medical leave. At the time, Petitioner did not yet have a projected release date to return to work. Alternatively, she was offered a severance package. In late February 2009, the pharmacy manager at the Lehigh Acres store abruptly resigned her position. On March 5, 2009, the two positions were offered to Petitioner. The following day, Petitioner voluntarily accepted the position of pharmacy manager. This was a promotion for Petitioner, which came with an increase in salary and additional benefits. During these discussions, Petitioner was offered the option of either a 30-hour or 36-hour work week (the 36-hour week came with the pro rata increase in pay). Petitioner voluntarily selected the 30-hour work week. Petitioner expressed that a 30-hour work week would be a positive for her. Petitioner never informed Respondent that she could not go to the Lehigh Acres store or that working at the Lehigh Acres store, in any way, would or did affect her back condition or any other alleged disability she may have had. Petitioner never informed Respondent that she had a permanent disability of any kind. Petitioner claims that she told Fagan that “she does not do well under stress.” Assuming that to be true, that statement does not qualify as informing Respondent that she had a mental health disability, and Petitioner never asked for a reasonable accommodation for any mental condition or disability. She never filed a request in writing for reasonable accommodation. The discussions about the job transfer and promotion were communicated to Petitioner while she was out on leave for the back surgery. Petitioner never indicated that the phone calls made to her by Fagan were inappropriate or unwelcomed. To the extent Petitioner contends the Lehigh Acres store was stressful due to high volume, the evidence shows that the Lehigh Acres pharmacy, although busier than the Daniels Parkway store, was a low-volume pharmacy, in comparison to other pharmacies in the region. Petitioner started in her pharmacy manager position at the Lehigh Acres Pharmacy on March 15, 2009, after she had been released by her doctor to return to work without restrictions of any kind. The job duties of a pharmacy manager are substantially the same as the job duties of an assistant pharmacy manager, the position Petitioner held at the Daniels Parkway store. The primary additional duty was that Petitioner was charged with the duty of working out the schedule between her and the assistant pharmacist and has input as to the pharmacy technician’s work schedule. Petitioner’s assistant pharmacist at the Lehigh Acres store was Opal Gagliardo (Gagliardo). Petitioner presented no evidence as to Gagliardo’s age or disability status, but testimony showed that she was married. In addition, Eron Goffena worked as a pharmacy technician at the Lehigh Acres pharmacy on Mondays and Tuesdays. Shortly after Petitioner started at the Lehigh Acres store, Respondent started receiving customer complaints about her. These included complaints about disorganization, inaccurate and incomplete filling of prescriptions, failure to fill prescriptions in a timely manner, and talking on the phone while ignoring customers for extended periods of time. Some customers became so dissatisfied that they transferred their prescriptions to another store. The Lehigh Acres pharmacy was open six days per week and was closed on Sundays. Petitioner was scheduled to work three 10-hour shifts per week. When Petitioner started at the Lehigh Acres store, Gagliardo was scheduled to work two 10-hour shifts per week, and the other shift was covered by another rotating pharmacist. Soon thereafter, in March 2009, Gagliardo agreed to become full-time and, like Petitioner, worked three 10-hour shifts per week. Consistent with normal practice, Petitioner and Gagliardo worked together to agree to a mutually-acceptable schedule: two-day-on/two-day-off, with each having every other weekend off. However, Petitioner later decided she no longer wanted to work this schedule and sought to make changes to it. This gave rise to an ongoing disagreement between Petitioner and Gagliardo regarding the schedule, which was not resolved by the time Petitioner went out on her second leave of absence. In addition, Petitioner failed to complete many of her daily pharmacist duties. The testimony is credible that she failed to consistently fill the prescriptions that came in during her shift; instead, leaving them for the next shift’s pharmacist. Petitioner was disorganized and did not follow the proper workflow procedures. This resulted in customers’ prescriptions not being completed in a timely manner. Additionally, Petitioner did not answer the telephone often while she was working, failed to put up the stock that came in during her shift, left the pharmacy messy, and would not empty her garbage, leaving it overnight for the next pharmacist to do. Petitioner did not work well with her coworkers and, unlike other pharmacists, delegated problems and insurance issues to the pharmacy technicians, or left them for Gagliardo. On Saturday, March 21, 2009, Gagliardo wrote a note to Petitioner setting forth her concerns about her work and customer complaints, and how it was affecting Gagliardo’s working conditions. Gagliardo left the note next to the pharmacy computer for Petitioner to read during her next scheduled shift. When Fagan learned of customer complaints about Petitioner and issues regarding the timeliness of processing prescriptions, she asked her pharmacy specialist, Christine Stills (Stills), to visit the store to introduce the company’s pharmacy workflow program to Petitioner, in order to reduce the level of stress and improve customer service. On March 23, 2009, Stills, Anna Winters (Winters), and Petitioner met in Winters’ office to discuss the workflow procedures. In response, Petitioner indicated that she wanted additional technician hours to help with the workflow. Petitioner did not express or suggest that her desire for more technician hours was, in any way, due to, or a request for accommodation for any disability. Respondent has company-wide guidelines for determining the number of pharmacy technician hours that can be used in each store, based on the number of prescription filled by the store per week. The staffing at the Lehigh Acres pharmacy was consistent with these guidelines and was consistent with staffing before and after Petitioner worked there. Although Petitioner disagreed with the guidelines, Petitioner’s pharmacy technician hours actually exceeded the company guidelines. Pursuant to the guidelines, a pharmacy with Lehigh Acres’ volume was allotted six hours of technician help per week. During Petitioner’s tenure, the Lehigh Acres pharmacy was provided at least 13 hours of technician help. In addition, Petitioner had a trainee helping her on the cash register for at least two days. The Lehigh Acres pharmacy also was staffed similarly pursuant to the guidelines under the previous pharmacy manager, Anna Lowry. The customer volume (and number of technician hours) at the Lehigh Acres pharmacy has remained approximately the same since Petitioner went out on a second leave of absence. Following the March 23, 2009, meeting, Petitioner went back to the pharmacy and found the note Gagliardo had left by the computer. Petitioner returned to Stills and accused Gagliardo of “sabotaging” her. Petitioner also called Gagliardo at home that evening and was very belligerent, accusing Gagliardo of “sabotage” and stating that Gagliardo had “crucified her” and “nailed her to the cross.” On Friday, April 3, 2009, a meeting was held at the Lehigh Acres store between Petitioner, Fagan, Stills and Winters. This meeting was to be a fact-finding meeting to let Petitioner know her performance was not at the expected level, to discuss the customer complaints and concerns, and to get some feedback from Petitioner as to why this was happening. During this meeting, Petitioner was counseled with respect to the customer complaints about her. In response, Petitioner blamed Gagliardo for at least one of the complaints and again accused Gagliardo of “sabotaging” her. The only example Petitioner could provide of purported “sabotage” was that a box of paper clips she had placed on the pharmacy counter had been moved, and she believed that Gagliardo hid them (although the paper clips later were found in a drawer marked “pharmacy supplies”). Fagan asked Petitioner for other examples of “sabotage,” to which Petitioner pulled out a bundle of notes, which, she suggested may reflect additional examples, but Petitioner would not turn them over or allow anyone to read them. Petitioner also responded that the pharmacy manager duties were overwhelming. When asked for specifics, she could not provide any examples of duties she had as a pharmacy manager that were over and above what she previously had as the assistant pharmacy manager. Instead, Petitioner again requested that she needed more pharmacy technician hours. The pharmacy staffing guidelines were again explained to her, and her request was denied. Near the conclusion of the meeting, Fagan asked Petitioner if she had any questions or comments in response to what had been presented, but Petitioner did not offer any questions or comments. At no time during the meeting did Petitioner say anything about age or disability discrimination, or retaliation. At no time during the meeting was Petitioner ever told that her employment was being terminated, that she was being suspended or demoted, or that she was being subjected to a reduction in salary or benefits, or any other adverse employment action. Petitioner’s counseling had no tangible impact on terms, conditions, or privileges of her employment. Petitioner was never suspended, her employment was not terminated, and her salary and benefits were not reduced. Following the meeting, Petitioner went to the store pharmacy, gathered her personal belongings and pharmacy license, packed them up, and left the store. She was not asked to do this, nor was it even suggested; rather, she took it upon herself to behave as if she would not be returning to the store. A Counseling Memo was prepared specifying the concerns and issues shared with Petitioner during the meeting. A Counseling Memo is a document on which company management highlights an issue related to job performance. It coaches an associate, as to, how that issue can be addressed and resolved. Neither the meeting nor the Counseling Memo were in any way based on Petitioner’s age, marital status, disability or any perceived disability. Because Petitioner had removed her possessions from the pharmacy, management was concerned she may not be returning for her next scheduled shift: Monday, April 6, 2009. Thus, Stills (who was responsible for insuring pharmacy coverage) called Petitioner and asked her if she was reporting to work on Monday. Winters also called Petitioner to see how she was doing. Although Petitioner was offended, these calls did not constitute adverse employment actions. Petitioner reported to work for her next shift on Monday, April 6, 2009, where she was presented the Counseling Memo. Petitioner was not being demoted, fired, suspended or otherwise suffering adverse employment action. In response, Petitioner wrote management, stating that she “did not realize the full responsibilities of pharmacy manager,” but did not make any reference to age or disability discrimination, or retaliation. Petitioner’s Second Leave of Absence The following day, April 7, 2009, was the last day Petitioner worked before going back out on a medical leave of absence. The reason for this second leave of absence was a recurrence of her back pain. Prior to taking this leave of absence, Petitioner had not told anyone that her back condition was bothering her while at the Lehigh Acres store. Since going out on this second leave of absence, Petitioner has not submitted any documentation to Respondent, which indicated that she is able to return to work in any capacity. Petitioner did testify that she expects to be released to return to work in the future. In June 2009, Petitioner did receive documentation from her physician indicating she was able to return to light-duty work, but Petitioner never submitted this documentation to Respondent and never requested Respondent to provide her any kind of light-duty work. Instead, she went to a different doctor, who stated that she was unable to return to work at that time, and submitted that documentation to Respondent. Petitioner remains employed by Respondent and is still on a leave of absence. She received short-term disability benefits of 100 percent of her salary for six months after going out on a leave of absence on April 7, 2009. Following the expiration of short-term disability benefits, and up to the present, Petitioner has received long-term disability benefits equivalent to one-third of her monthly salary. Since going out on a leave of absence, Petitioner has not sought any other employment except to submit an application for employment to Publix. She did not disclose to Publix that she had a disability. Alleged Discrimination/Retaliation Respondent has an anti-discrimination policy, which contains a complaint procedure under which employees are required to report any discrimination that they feel they are experiencing in the workplace. Petitioner was familiar with this policy and knew how to report perceived discrimination. Petitioner never reported any form of discrimination to Respondent. Therefore, no decisions made by Respondent regarding Petitioner’s employment were made in retaliation for reporting discrimination. The evidence does not show that any decisions made by Respondent's officials regarding Petitioner’s employment were made due to her age, marital status, disability, or any perceived disability. Petitioner speculates that Respondent's management may have viewed her personal pharmacy records and saw that she took anti-depressants and/or anti-anxiety medication and, from that, concluded that she suffered from a mental disability. Petitioner introduced no evidence supporting this theory. Petitioner admitted that she has no personal knowledge whether Respondent's management viewed her personal pharmacy records. Petitioner admits that the conditions she alleges were discriminatory (e.g., the allegedly stressful environment at the Lehigh Acres store) were not in any way related to her back condition. Rather, Petitioner theorizes that the allegedly stressful environment exacerbated her alleged mental condition. Petitioner failed to prove that she suffered age, marital status, or disability discrimination.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's petition for age and disability discrimination and retaliation under the Florida Civil Rights Act. DONE AND ENTERED this 29th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2010.
The Issue Whether Florida Power & Light Company (hereinafter referred to as "FPL") properly refused the request of Globe International Realty & Mortgage, Inc. (hereinafter referred to as "Globe") to supply electric service to the premises located at 808 Northeast Third Avenue, Fort Lauderdale, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Kenneth V. Hemmerle, Sr., is a real estate developer. Matthew Renda is a real estate and mortgage broker. Hemmerle and Renda have known each other since about 1986. At the suggestion of Hemmerle, in February of 1993, Renda, along with Hemmerle, formed Globe. At the time, Hemmerle was involved in a development project on the west coast of Florida and he wanted Renda, through Globe, to handle "the selling and so forth for the project." Globe was incorporated under the laws of Florida. The articles of incorporation filed with the Department of State, Division of Corporations (hereinafter referred to as the "Division of Corporations") reflected that: Renda was the president of the corporation; Hemmerle was its secretary; Renda and Hemmerle were the incorporators of the corporation, owning 250 shares of stock each; they also comprised the corporation's board of directors; and the corporation's place of business, as well as its principal office, were located at 808 Northeast Third Avenue in Fort Lauderdale, Florida (hereinafter referred to as the "808 Building"). Globe is now, and has been since its incorporation, an active Florida corporation. Annual reports were filed on behalf of Globe with the Division of Corporations in both 1994 (on April 19th of that year) and 1995 (on March 23rd of that year). The 1994 annual report reflected that Renda and Hemmerle remained the officers and directors of the corporation. The 1995 annual report reflected that Renda was still an officer and director of the corporation, but that Hemmerle had "resigned 9-2-93." Both the 1994 and 1995 annual reports reflected that the 808 Building remained the corporation's place of business and its corporate address. The 808 Building is a concrete block building with a stucco finish housing eight separate offices. The entire building is served by one electric meter. At all times material to the instant case, Southern Atlantic Construction Corporation of Florida (hereinafter referred to as "Southern") owned the 808 Building. Southern was incorporated under the laws of Florida in June of 1973, and administratively dissolved on October 9, 1992. Hemmerle owns a majority of the shares of the corporation's stock. The last annual report that Southern filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. From 1975 until September 6, 1994, FPL provided electric service to the 808 Building. Charges for such service were billed to an account (hereinafter referred to as the "808 account") that had been established by, and was in the name of, Hemmerle Development Corporation (hereinafter referred to as "HDC"). HDC was incorporated under the laws of Florida in 1975, and administratively dissolved on October 9, 1992. At the time of HDC's incorporation, Hemmerle owned 250 of the 500 shares of stock issued by the corporation. The last annual report that HDC filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. Following the administrative dissolution of the corporation, Hemmerle continued to transact business with FPL in the corporation's name, notwithstanding that he was aware that the corporation had been administratively dissolved. At no time has Renda owned any shares of HDC's stock or served on its board of directors. He and Hemmerle have served together as officers and directors of only two corporations: Globe and Hemmerle's Helpers, Inc. The latter was incorporated under the laws of Florida as a nonprofit corporation in March of 1992, and was administratively dissolved on August 13, 1993. Its articles of incorporation reflected that its place of operation, as well as its principal office, were located in the 808 Building. Pursuant to arrangements Renda and Hemmerle had made (which were not reduced to writing), Globe occupied office space in the 808 Building from March of 1993, through September 6, 1994 (hereinafter referred to as the "rental period"). Renda and Hemmerle had initially agreed that the rent Globe would pay for leasing the space would come from any profits Globe made as a result of its participation in Hemmerle's Florida west coast development project. Renda and Hemmerle subsequently decided, however, that Globe would instead pay a monthly rental fee of $300 for each office it occupied in the building. 1/ Globe (which occupied only one office in the building during the rental period) did not pay in full the monies it owed under this rental agreement. The office Globe occupied in the 808 Building was the first office to the right upon entering the building. It was across the lobby from the office from which Hemmerle conducted business on behalf of his various enterprises. Globe voluntarily and knowingly accepted, used and benefited from the electric service FPL provided to its office and the common areas in the building during the rental period. Under the agreement Renda and Hemmerle had reached, Globe was not responsible for making any payments (in addition to the $300 monthly rental fee) for such service. On July 26, 1994, the 808 account was in a collectible status and an FPL field collector was dispatched to the service address. There, he encountered Hemmerle, who gave him a check made out to FPL in the amount of $2,216.37. Hemmerle had noted the following on the back of the check: "Payment made under protest due to now [sic] owning [sic] of such billing amount to prevent discontinuance of power." The check was drawn on a Sunniland Bank checking account that was in the name of Florida Kenmar, Inc., (hereinafter referred to as "Kenmar"), a Florida corporation that had been incorporated in May of 1984, 2/ and administratively dissolved on November 9, 1990. (The last annual report that Kenmar filed with the Division of Corporations, which was filed on June 10, 1991, reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; and the corporation's principal office was located in the 808 Building.) Hemmerle told the field collector, upon handing him the check, that there were no funds in the Kenmar checking account. Nonetheless, the field collector accepted the check. FPL deposited the check in its account at Barnett Bank of South Florida. The check was subsequently returned due to "insufficient funds." On the same day that he was visited by the FPL field collector, Hemmerle telephoned Sandra Lowery, an FPL customer service lead representative for recovery, complaining about, among other things, a debit that he claimed had been improperly charged to the 808 account. As a result of her conversation with Hemmerle, Lowery authorized the removal of the debit and all late payment charges associated with the debit from the 808 account. Following the July 26, 1994, removal of the debit and associated late payment charges, the balance due on the account was $1,953.91, an amount that Hemmerle still disputed. In an effort to demonstrate that a lesser amount was owed, Hemmerle sent Lowery copies of cancelled checks that, he claimed, had been remitted to FPL as payment for electric service billed to the 808 account. Some of these checks, however, had been used to pay for charges billed to other accounts that Hemmerle (or corporations with which he was associated) had with FPL. As of August 29, 1994, the 808 account had a balance due of $2,387.47. These unpaid charges were for service provided between March of 1993 and August 10, 1994. On August 29, 1994, Hemmerle showed Renda a notice that he had received from FPL advising that electric service to the 808 Building would be terminated if the balance owing on the 808 account was not paid within the time frame specified in the notice. Hemmerle suggested to Renda that, in light of FPL's announced intention to close the 808 account and terminate service, Renda should either apply for electric service to the 808 Building in Globe's name or relocate to another office building. Renda decided to initially pursue the former option. Later that same day, Renda telephoned FPL to request that an account for electric service to the 808 Building be opened in Globe's name. Gigi Marshall was the FPL representative to whom he spoke. She obtained from Renda the information FPL requires from an applicant for electric service. During his telephone conversation with Marshall, Renda mentioned, among other things, that Globe had been a tenant at the 808 Building since the previous year and that it was his understanding that FPL was going to discontinue electric service to the building because of the current customer's failure to timely pay its bills. Renda claimed that Globe was not in any way responsible for payment of these past-due bills. From an examination of FPL's computerized records (to which she had access from her work station), Marshall confirmed, while still on the telephone with Renda, that the 808 account was in arrears and that FPL had sent a disconnect notice to the current customer at the service address. Marshall believed that, under such circumstances, it would be imprudent to approve Globe's application for electric service without further investigation. She therefore ended her conversation with Renda by telling him that she would conduct such an investigation and then get back with him. After speaking with Renda, Marshall went to her supervisor, Carol Sue Ryan, for guidance and direction. Like Marshall, Ryan questioned whether Globe's application for service should be approved. She suggested that Marshall telephone Renda and advise him that FPL needed additional time to complete the investigation related to Globe's application. Some time after 12:30 p.m. on that same day (August 29, 1994), Marshall followed Ryan's suggestion and telephoned Renda. Ryan was on the line when Marshall spoke with Renda and she participated in the conversation. Among the things Ryan told Renda was that a meter reader would be dispatched to the 808 Building the following day to read the meter so that the information gleaned from such a reading would be available in the event that Globe's application for service was approved. At no time did either Marshall or Ryan indicate to Renda that Globe's application was, or would be, approved. Ryan referred Globe's application to Larry Johnson of FPL's Collection Department, who, in turn, brought the matter to the attention of Thomas Eichas, an FPL fraud investigator. After completing his investigation of the matter, which included an examination of the Broward County property tax rolls (which revealed that Southern owned the 808 Building), as well a search of the records relating to Globe, HDC and Southern maintained by the Division of Corporations, Eichas determined that Globe's application for service should be denied on the basis of the "prior indebtedness rule." Eichas informed Johnson of his decision and instructed him to act accordingly. Electric service to the 808 Building was terminated on September 6, 1994. As of that date, the 808 account had a past-due balance that was still in excess of $2,000.00. Although he conducted his business activities primarily from his home following the termination of electric service to the 808 Building, Hemmerle continued to have access to the building until March of 1995 (as did Renda). 3/ During this period, Hemmerle still had office equipment in the building and he went there on almost a daily basis to see if any mail had been delivered for him. It was his intention to again actively conduct business from his office in the building if electric service to the building was restored. Hemmerle (and the corporations on whose behalf he acted) therefore would have benefited had there been such a restoration of service. After discovering that electric service to the 808 Building had been terminated, Renda telephoned FPL to inquire about the application for service he had made on behalf of Globe. He was advised that, unless FPL was paid the more than $2,000.00 it was owed for electric service previously supplied to the building, service to the building would not be restored in Globe's name. Thereafter, Renda, on behalf of Globe, telephoned the PSC and complained about FPL's refusal to approve Globe's application for service. FPL responded to the complaint in writing. In its response, it explained why it had refused to approve the application. On or about November 15, 1994, the Chief of PSC's Bureau of Complaint Resolution sent Renda a letter which read as follows: The staff has completed its review of your complaint concerning Florida Power & Light's (FPL) refusal to establish service in the name of Globe Realty, Inc. at the above- referenced location. Our review indicates that FPL appears to have complied with all applicable Commission Rules in refusing to establish service. Our review of the customer billing history indicates that the past-due balance is for service at this location and not attributable to the judgment against Mr. Hemmerle for service at another location. The interlocking directorships of Globe International Realty & Mortgage, Inc. and Hemmerle Development, Inc. suggest that the request to establish service in the name of Globe Realty is an artifice to avoid payment of the outstanding balance and not a result of any change in the use or occupancy of the building. Thus, FPL's refusal to establish service is in compliance with Rule 25-6.105(8)(a), Florida Administrative Code. Please note that this determination is subject to further review by the Florida Public Service Commission. You have the right to request an informal conference pursuant to Rule 25-22.032(4), Florida Administrative Code. Should that conference fail to resolve the matter, the staff will make a recommenda- tion to the Commissioners for decision. If you are dissatisfied with the Commission decision, you may request a formal Administrative hearing pursuant to Section 120.57(1), Florida Statutes. After receiving this letter, Renda, on behalf of Globe, requested an informal conference. The informal conference was held on November 30, 1994. At the informal conference, the parties explained their respective positions on the matter in dispute. No resolution, however, was reached. Adopting the recommendation of its staff, the PSC, in an order issued January 31, 1995, preliminarily held that there was no merit to Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. Thereafter, Renda, on behalf of Globe, requested a formal Section 120.57 hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the PSC enter a final order dismissing Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1995.
Findings Of Fact Dr. Gracita Rodriguez Abella (nee: Rodriguez) graduated from medical school in the Philippines in 1961. She began an internship in the United States at St. Vincent's Hospital, Erie, Pennsylvania, in 1962. Upon completion of her internship in 1963, she began a rotating residency in anesthesiology at Philadelphia General Hospital. Upon completion of her residency in 1966, she practiced anesthesiology at the General Hospital of the District of Columbia for fifteen (15) months. In 1967, she left the United States and returned to the Philippines. In the Philippines, Dr. Abella practiced as a general practitioner and anesthesiologist on the staff of four hospitals. During this period of time, she never had any complaints lodged against her and did not abuse drugs. In August, 1973, Dr. Abella returned to the United States. In the interim, Dr. Abella had married, and her husband, Orlando Abella, returned to the United States with her. Dr. Abella practiced as an anesthesiologist at Long Island General Hospital, Brooklyn, New York, from 1973, until 1975. During this period of time she had no complaints lodged against her. In 1975, Dr. Abella left Long Island General Hospital and went Lo the Jewish Hospital, Brooklyn, New York. After six months, she left the Jewish Hospital in Brooklyn, New York, and began work as an anesthesiologist at St. Mary's Hospital, Brooklyn, New York. During this time, she began to abuse Demerol. Her physical symptoms were noted by other members of the staff, who reported her abuse of drugs to her supervisor. Dr. Abella's employment was terminated in April of 1977. During this period, Dr. Abella was using drugs while on duty. She was at that time using approximately 100 mg. of Demerol per day. Between her discharge from St. Mary's Hospital in April and May of 1977, Dr. Abella did not work. In May of 1977, Dr. Abella joined two other physicians in Leesburg, Florida, in the Mid-Florida Anesthesiology Group. During this period she was drug-free and remained so until her husband arrived in Florida. Dr. Abella's husband caused her a great deal of difficulty, harassing her while on duty, making threats to turn her in because of her use of drugs in New York, and physically abusing her. Dr. Abella began using Demerol again, which was discovered quickly by her associates who talked her into going to Gainesville for treatment at Shand's Teaching Hospital, University of Florida, Gainesville, Florida. She received treatment at Shand's and was discharged drug-free, returning to practice in Venice, Florida, with a group of physicians beginning to set up a practice. During the period of her practice in Venice, she commuted from Leesburg, Florida. Again, her husband began to harass her, and Dr. Abella again began taking Demerol. She was arrested on April 14, 1977, for forging a Demerol prescription and again for the same offense on April 17, 1977. Upon her second arrest, Dr. Abella was held in the county jail. She remained incarcerated until after her plea of nolo contendere and being placed on probation by the court, and her subsequent transfer from the county jail to Bowling Green Treatment Facility near Orlando. After Dr. Abella left Bowling Green, she went to the Chronic Alcoholic Rehabilitation Program (CARP) in West Palm Beach, where she worked essentially as a nurse in the admitting section. In July of 1978, while working at CARP, she was observed by staff members to be under the influence of a drug. She subsequently admitted having taken Nembutal from CARP supplies to assist her in sleeping after having had an automobile accident in which she severely injured her face. Dr. Abella testified that this was the only time she had used drugs since her arrest in April of 1978. Because of her unlawful use of controlled substances, an administrative complaint was filed against her by the Board of Medical Examiners in April of 1978. Dr. Abella surrendered her license voluntarily on April 24, 1978. She applied for relicensure in July, 1978; however, because of the incident involving Nembutal, she withdrew that earlier petition. The testimony of Dr. Abella and the assessment of various counselors reflect that her drug involvement has been directly related to her inability to cope with her role as a physician and with her husband's expectations of her as a wife. While her testimony tends to diminish the pressures placed upon her by her husband, she is intellectually aware of those pressures her husband has placed upon her. Because of her cultural and religious background, Dr. Abella has been reluctant to accept a civil dissolution of her marital relationship. Dr. Abella's testimony shows her acceptance of the civil dissolution of her marriage as a means of resolving the conflicts with her husband; however, she has not instituted proceedings because of her current probationary status with the court and her unlicensed status as a physician. Dr. Abella is currently working six and one-half days a week in two separate jobs as a medical assistant and is the primary source of support for her children. The record shows that Dr. Abella needs continuing treatment to assist her in resolving the problems underlying her drug usage; however, she cannot reasonably attain this treatment while working six and one-half days a week to support herself and her children. Furthermore, without the added income of her salary as a physician, she lacks the financial independence necessary to support herself and her children, and obtain such treatment. Dr. Abella has taken medical courses during the past year to maintain her professional competency. The physicians with whom Dr. Abella is now working recommend her for relicensure. Dr. Potash of the Airport Medical Clinic indicates his willingness to employ Dr. Abella if she is relicensed. The Airport Medical Clinic is primarily engaged in the administration of employment physicals and the treatment of job-related injuries. Dr. Abella has stipulated to specific restrictions on her license to practice medicine in the State of Florida, and to a probationary period established by the Board. Although Dr. Abella is presently drug-free, her ability to remain so and to meet the professional responsibilities of the practice of medicine and the responsibilities of being a mother, and to deal with the trauma of a disillusionment proceeding cannot be predicted. However, they are hurdles which she must overcome without returning to drug usage in order to reestablish her professional credibility. While it is inappropriate to anticipate her response, it is prudent to institute a probationary period to protect the public, should the Board determine that Dr. Abella be relicensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the Stipulation entered into by Dr. Gracita Rodriguez Abella and the proposed findings of fact submitted by the parties, the Hearing Officer recommends that the Board of Medical Examiners relicense the Petitioner under the provisions of said Stipulation, extending the period of probation until such time that the Board is satisfied that Dr. Abella can practice without supervision outside a controlled or structured environment, and until the Petitioner has resolved her personal crises centering on her professional and personal roles. Further, the Hearing Officer would recommend that Paragraph 8 of the Stipulation, calling for individual and/or group therapy and/or counseling on an outpatient basis during the period of probation be specifically implemented, and that the Petitioner accept unannounced periodic urine screening as an integral part of her probation. DONE and ORDERED this 5th day of September, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley, Esquire 666 Lewis State Bank Building Tallahassee, Florida 32301 Kevin K. Broderick, Esquire 6155 South Florida Avernie Post Office Box 5378 Lakeland, Florida 33803
The Issue The issue is whether the Respondent violated the statutes and rules as alleged in the Administrative Complaint.
Findings Of Fact Lester Henderson is a pharmacist holding license number 0015985 issued by the Department of Professional Regulation. The Respondent's last known address is 4029 Eastridge Drive, Valrico, Florida 33594. At all times relevant to the allegations contained in the Administrative Complaint, the Respondent was the pharmacist of record at Tampa Park Plaza pharmacy, 1497 Nebraska Avenue, Tampa, Florida 33602. On February 16, 1983, an audit of the Tampa Park Plaza Pharmacy was conducted by the Department. This audit revealed seven prescriptions purportedly issued by Dr. Vinai Artyamsoal for the following amounts Schedule II substances prescribed for Carrie (or Connie) Chambers: 5/18/82 Demerol 50 mg. 100 tabs 8/16/84 Demerol 50 mg. 100 tabs 9/10/82 Demerol 50 mg. 100 tabs 10/8/82 Dilaudid 50 mg. 200 tabs 11/23/82 Dilaudid 4 mg. 200 tabs 12/23/82 Dilaudid 4 mg. 100 tabs 1/20/84 Demerol 100 mg. 100 tabs (See petitioner's Exhibit 3(a) through (g). Dr. Vinai Artyamsoal is a physician specializing in obstetrics and gynecology with offices in Plant City and Zephyr Hills, Florida. Notarized affidavits of Dr. Artyamsoal were received, each of which bears a copy of one of the prescriptions described in paragraph above. Each affidavit contains a statement of Dr. Artyamsoal that he did not issue, authorize, or consent to making the prescriptions depicted within the affidavit. The Board's investigator who is a pharmacist stated "it was a good practice" to check with a doctor to see if the prescription was valid if the doctor was from out of town. (T-52). He also thought a pharmacist should scrutinize such prescriptions more carefully. The Respondent testified that he attempted to contact Dr. Artyamsoal to check on one of the subject prescriptions; however, he was unable to contact the doctor. It was the doctor's practice to personally verify prescriptions with pharmacists by talking with the pharmacist directly. A check of the doctor's records revealed no record for a Carrie (or Connie) Chambers. The Respondent admitted that on April 19, 1983, the pharmacy was unlocked while he was not present at the pharmacy and although he was scheduled to work at that time. There was not an appropriate door or similar structure which could be locked to bar access to the prescription department. There was no sign displayed at said time stating the prescription department was closed. There was a theft of controlled substances from the pharmacy. The Respondent reported this theft to the Federal Drug Enforcement Administration. The Respondent also reported the theft to the state authorities. The Respondent, was one of four partners who owned the pharmacy. The FDEA sent certain forms to the Respondent to be filled out about the theft. The Respondent gave these forms to the partner in charge of business paperwork to fill out. The forms were not sent to FDEA. Because the forms were not returned t FDEA, all of the records were not complete concerning the shortage. The Respondent as the managing pharmacist was attempting to carry the sole work load of this business while working full time at another job which he could not do. This was the reason for the failure to get all of the records complete and be on duty as scheduled.
Conclusions Count I alleges that the Respondent violated Section 465.016(1)(i), Florida Statutes which provides as follows: Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this paragraph, it shall be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy. This count specifically alleges that the Respondent failed to verify the prescriptions. (See Prehearing Stipulation.) The facts reveal that the Respondent attempted to check the prescriptions on one occasion, and that the Board's own investigator did not say it was unprofessional not to check the prescriptions. It was not alleged and not proven the amounts of the, prescriptions were excessive. Therefore, proof of this Count is wholly dependent upon competent substantial testimony that it is outside the course of professional pharmacy to fill prescriptions without checking with the doctors. The Board's witness did not testify to such a standard. He said it was a good investigative practice to check out of town prescriptions. This is substantially short of stating a professional standard from which a pharmacist cannot depart. This Count was not proven. COUNT II Count II alleges the Respondent was not on duty from 10:15 a.m. until 2:00 p.m., on April 19, 1983 when the pharmacy was inspected. At said time, the pharmacy was not locked and a sign was not posted, contrary to Rule 21S-1.14, FAC, saying the department was closed. This rule says in pertinent part that when a pharmacist is not on duty the pharmacy department is considered closed even if the store is open. When the pharmacy department is closed, a sign shall be displayed saying it is closed. The rule also provides that the pharmacy department shall be locked to prevent entry when it is closed. The Respondent admits that on April 19, 1983 the pharmacy was not locked; that he was supposed to be on duty; that he was not at the pharmacy; that a sign was not so posted; and the pharmacy was not locked. However, the Administrative Complaint does not allege that this violation is punishable under the statute and the rules do not provide a penalty for violation. COUNT III Count III alleges Respondent violated 893.07(1)(b), Florida Statutes by failing to keep all of the records re- quired. The Respondent failed to complete the report of that theft to FDEA, although he reported the theft to federal and state authorities. The Respondent had turned the work over to one of the other partners to be done. It was not done. There was a technical failure to complete the reports to FDEA. The DEA elected not to act upon this violation. Ironically, the Department of Professional Regulation had apparently lost its copies of the Respondent's report of the theft in a move, and the Board did not have all of its records. The Respondent is in technical violation of 465.016(1)(e) MITIGATION The Respondent is a minority business man. He and his partners starred a pharmacy in a predominantly black area of their community. They borrowed money to do this and the Respondent has worked hard; in fact, too hard to make this success. Respondent was working at least one other full-time job and often two jobs to get additional money, for his family to protect the business. Because of this, the recommendation does not levy a civil fine. It does not provide for a suspension which would tend to penalize Respondent who was only one of four partners, at least one other of whom was a pharmacist. It appears many of their violations were the result of Respondent attempting to do too much and inadequate technical knowledge of the rules.
Recommendation Having found the Respondent guilty of a technical violation, as alleged in Count III, it is recommended that the Respondent be placed upon probation for two years during which he would be prohibited from working more than 60 hours per week as a pharmacist or working as a managing pharmacist and be required to take a course on the records required to be kept by Chapter 893 and the Federal DEA. DONE and RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lester Henderson 1497 Nebraska Avenue Tampa, Florida 33602 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Winn Dixie, discriminated against Petitioner, Simon Rowland, on the basis of his disability (cerebral palsy) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is an elderly man who has had cerebral palsy since birth. In August 2004, Petitioner went to work at the Dundee, Florida, Winn Dixie store as a courtesy clerk or bagger. His duties were to retrieve shopping carts from the parking lot, help customers, clean restrooms, and other general duties. He was not as fast a worker as others, but Winn Dixie accommodated him so that he could continue working. Petitioner claims that he was initially told he would work 20 to 25 hours per week. Winn Dixie asserts that he was given no indication of hours he might work. It is clear that Petitioner worked approximately ten hours per week during his employment. Lora Prine was the manager of the Dundee store, and Petitioner enjoyed working with Prine. Prine was later transferred to the Winter Haven store, and Petitioner asked to be transferred there, as well. There was no position open at first, but when a position became available, Prine contacted Petitioner to apply. When he was hired at the Winter Haven store, Petitioner was told that he would average between ten and 15 hours per week. While Petitioner was working at the Winter Haven store, Prine would make sure that his duties were consistent with his capabilities. She would make sure that Petitioner had assistance when lifting heavy objects, for example, when he was bagging groceries. Prine also allowed Petitioner to leave work early on many occasions due to illness and to miss work altogether at times, e.g., when he needed to visit his ailing brother in Gainesville. Petitioner freely admits that Prine and Winn Dixie accommodated him when he was working there. In November 2009, Petitioner was hospitalized for a week. The hospitalization involved an unnamed malady, but Petitioner was adamant that it did not involve a stroke. There is no evidence that Winn Dixie believes Petitioner suffered a stroke at that time. Upon release from the hospital, Petitioner was provided with portable oxygen. He said that the oxygen was supposed to be used while he was sleeping, but he used it a few times during the day right after he got out of the hospital. Prine learned from Petitioner's son that Petitioner was using oxygen. In mid-January 2010, Petitioner called Prine to see about coming back to work. Prine had just returned from medical leave and asked Petitioner to call her back in a few days. When Petitioner called back, he discussed his hospitalization and convalescence with Prine. He informed Prine of his need to utilize oxygen as a result of his illness. Prine suggested to Petitioner that maybe it was time for him to retire; Petitioner agreed with Prine that it was time. Prine annotated Petitioner's work file to indicate he was on retired status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Simon Rowland's, Petition for Relief in full. DONE AND ENTERED this 19th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2011.
