The Issue In a short pre-hearing discussion it was determined that the Division of Retirement did not controvert the status of the applicant as being totally and permanently disabled; however, it did controvert whether the disability arose totally out of an in-line duty accident, although the Division of Retirement did not controvert the fact that the applicant had had an accident on duty which had resulted in some degree of physical impairment. Specifically at issue were the affects of a mastectomy and of a degenerative bone disease upon the applicant's total physical disability. It was also agreed that the applicant had no psychological overlay contributing to her disability.
Findings Of Fact The applicant testified that she had hurt her back transferring a patient from the operating table to a stretcher and that as a result she immediately felt a sharp pain in the middle of her lower back radiating upward. She testified that she had later leaned over to take off her operating booties and had been unable to straighten up whereupon she reported to the hospital health center. There she was given some medicine and put on physical therapy. This back pain continued to worsen and although the applicant returned to work during the time between her injury and her application for retirement, she was unable to perform her duties which involved a substantial amount of bending, stooping and similar physical activity. While she was being treated for her back condition over one year after the original injury, she contracted breast cancer, and a radical mastectomy was performed on August 9, 1974. The Division of Retirement has controverted the application primarily because of the encouraging reports of Dr. Parker of May 27, 1974 (Exhibit 7), which was followed by the entirely opposite report of September 3, 1974 (Exhibit 8); the mastectomy having occurred in the interim. The Division of Retirement asserts Dr. Parker's report of September 29, 1974, in which he references the mastectomy, supports the Division's position. "Mrs. Purcell was seen and examined in the office on September 27, 1974. She continues to have intermittent severe back and hip pain. This is somewhat more severe recently, probably because of the possible adjustment caused by her mastectomy. I do not feel she will be able to return to her previous work. The applicant testified that although she had had some pain associated with the surgery but that after she had recovered and received physical therapy for the affected arm, she had not been bothered any further. Avis Garrett as investigator for the County of Dade testified that she had visited the applicant ten times on an unscheduled basis in fifteen months and had almost always found her in bed or at rest. During Garrett's visits the applicant manifested pain by her walk, stance and by complaining of great pain. Garrett visited the applicant within a few weeks after the mastectomy and was uaware of the operation, the applicant not having mentioned or complained of it, until some comment related to it was made as she was leaving. Beyond the passing comment contained in Dr. Parker's medical report quoted above there is no other medical opinion expressed regarding the mastectomy affecting the applicant's condition. Both medical reports of Dr. Parker and dr. Herskowitz, dated September 16, 1975, supporting the application, diagnose the applicant's physical diability as a back injury. In neither case do the doctors' reports indicate the radical mastectomy as contributing to the patient's disability as indicated by their response to questions 2 and 7 (respectively Exhibits 22 and 23). I find that the report of Dr. Parker dated September 29, 1974, quoted above, consistent with the applicant's testimony that she had some difficulty in movement associated with the then recent surgery. Based on the foregoing, I find that the mastectomy is not a contributing factor to the existing physical disability. There is some indication that the lack of activity enforced by the back injury has caused the development of a disease of the bone; however, I find that it is the lack of mobility resulting from the disability which has aggravated or "caused" the disease and not the disease that has caused the disability.
The Issue The issue presented is whether Respondent Wildwood Golf Operations, LLC, committed an unfair employment practice by discriminating against Petitioner when it terminated Petitioner's employment.
Findings Of Fact Respondent Wildwood Golf Operations, LLC, is a multi- faceted business, consisting of a 71-room hotel with meeting facilities, a 5,000-square-feet restaurant with banquet facilities, tennis courts, a swimming pool, a driving range, and a golf course. While Petitioner's nephew was employed by Respondent as a clerk in its pro shop, he introduced Petitioner to Peter Sands, the director of golf, and Paul Earnhart, the golf manager. The four of them played golf together on several occasions, and Petitioner was considered to be a pleasant, cheerful person like his nephew. When Petitioner's nephew was about to leave Respondent's employ, he recommended to Sands that Sands hire Petitioner as his nephew's replacement. Sands and Earnhart were amenable to the idea. In July 2009 Petitioner completed an application for employment form and was subsequently hired to work part-time in the pro shop. He also gave golf lessons and continued to play golf on Respondent's course. On his application for employment, Petitioner left blank the section asking for information on Petitioner's prior employment. He did answer the question asking if he had ever been convicted or pled guilty to any crime, felony or misdemeanor, other than a minor traffic offense. By answering that question in the negative, he failed to disclose his two prior convictions for shoplifting, to which crimes he had pled guilty. Shoplifting is an offense which would have prevented Petitioner from being hired. Membership information, including the types of memberships Respondent offers together with cost information, was kept in a file folder in an open file folder holder behind the counter in the pro shop. It was part of Petitioner's job duties, as it was for Respondent's other employees, to provide that membership information to anyone inquiring. The importance of selling memberships for the economic viability of Respondent's business was stressed to Respondent's employees. On three separate occasions, Earnhart came into the pro shop and asked Petitioner for a copy of the membership information which was kept in the file. On the first occasion, when Petitioner was unable to retrieve it, Earnhart retrieved the information himself and explained to Petitioner that providing membership information was an important part of Petitioner's job duties. On the second occasion, which occurred approximately a week later, Earnhart again came into the pro shop and asked Petitioner for the membership information. When Petitioner was unable to comply with his request, Earnhart again showed Petitioner where the information was kept. He also told Petitioner that that was the second time he was unable to provide membership information to Earnhart and that Petitioner should not let that happen again. Approximately a week later, on September 27, 2009, Earnhart again came into the pro shop and requested a copy of the corporate membership information from Petitioner. When Petitioner was unable to provide it, Earnhart went to the computer in the pro shop and printed a copy from Respondent's website. While Earnhart was at the computer, Petitioner came to him, bent down next to Earnhart's face, probably less than a foot away, and said, essentially, that he was too well-educated to be reprimanded. Earnhart was shocked and angered by Petitioner's belligerent and confrontational manner. Earnhart retorted rudely and left the pro shop. He encountered Peter Sands, who was on his way into the pro shop, and told Sands what had happened, told him that was Petitioner's third and last time, and instructed Sands to find a replacement for Petitioner, train the replacement, and then terminate Petitioner's employment. On October 14, 2009, Sands had a conversation with Petitioner advising Petitioner that Petitioner's employment was going to be terminated. On October 21, 2009, Respondent terminated Petitioner's employment. At that time, Petitioner was still within his probationary period, which, under Respondent's policies, meant he could be terminated without cause. The day after he was fired, Petitioner sent a letter to Respondent advising that he was disabled and requesting accommodations under the Americans with Disabilities Act. The letter did not specify what disability Petitioner was claiming. Until receipt of that letter, Petitioner had never advised Respondent that he was disabled and he had not been perceived to be disabled by any of Respondent's employees who testified in this proceeding. During the term of his employment by Respondent, Petitioner made no request for accommodations due to any disability. While he did request a footstool to put his feet on while he was sitting behind the counter in the pro shop, he did not advise that his request was related to a disability rather than simple comfort. Likewise, when Petitioner requested to not work the normal Sunday 12-hour shift, he did not mention it was related to a disability. He was given a shorter Sunday shift as were other employees who requested one. Although Petitioner used a handicapped flag on occasion on his golf cart when he was playing golf, so do other people who are not handicapped but simply want to enjoy the privilege of driving closer to a green. In 1996 Petitioner was involved in an accident while working as a paramedic. He suffered a broken arm and tendon damage "throughout his body." After he was rehabilitated, he returned to work for another three years before he lost his job. Petitioner exhibited reluctance to disclose the nature of his alleged disability during the final hearing in this cause. He eventually disclosed at the final hearing that he was 100 percent disabled for "physical limitations," post-traumatic stress disorder, and chronic depression, but identified his disability in his deposition as post-traumatic stress disorder and insomnia. No medical evidence was offered to support Petitioner's allegations that he is disabled. He relied, instead, on hearsay documents, such as his motor-vehicle- handicapped-parking placard, his Medicare card, and his social security card. No competent evidence was offered as to whether Petitioner still has the disability he had when those documents were obtained or for which alleged disability each of those documents was issued. Rather, Petitioner admitted during the final hearing that his insomnia is controlled by medication, that it has been over five years since he received any treatment for post- traumatic stress disorder, and that he doesn't remember who diagnosed him with that condition. He testified in deposition and at final hearing that his post-traumatic stress disorder and his insomnia do not affect his ability or prevent him from being employed. More importantly, Petitioner testified at the final hearing that his alleged conditions did not affect his ability to retrieve membership information from the file folder and, further, that he does not believe that he was terminated by Respondent based on his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of committing an unfair employment practice and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 9th day of September, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 9th day of September, 2010. COPIES FURNISHED: John J. Joubert 7 Farrier Lane Crawfordville, Florida 32327 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Grubbs, Esquire Quintairos Prieto Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Daniel Flint was born on May 3, 2014, at Bayfront Health Spring Hill in Spring Hill, Florida. Daniel weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Daniel's medical records. In a medical report dated June 2, 2015, Dr. Willis made the following findings and expressed the following opinion: In summary, fetal bradycardia developed during labor and required emergency Cesarean delivery. The baby was severely depressed at birth with Apgar scores of 0 at one and five minutes. A heart rate was not present until after 10 minutes of vigorous resuscitation. The initial blood gas was consistent with acidosis. The base was -22. Seizures occurred within the first hour of life. The baby was diagnosed with HIE and managed with whole body cooling. The baby was found to have a single mutation for the Prothrombin II mutation. I do not believe this was a factor in the oxygen deprivation at birth. There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. Seizure activity shortly after birth would be consistent with brain injury as a result of the oxygen deprivation. I am unable to comment about the severity of the brain injury. Dr. Willis' opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post-delivery period, and that seizure activity shortly after birth would be consistent with brain injury as a result of oxygen deprivation is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Daniel. Dr. Duchowny reviewed Daniel's medical records and performed an independent medical examination on him on May 13, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows: In SUMMARY Daniel's neurological examination reveals very mild plantar-grade foot positioning without corroborating evidence of increased muscle tone. The elevated (3+) knee jerks are consistent with an extremely mild spastic diparesis. He additionally evidences borderline microcephaly. I was surprised by this finding as his head appeared normal to inspection; I re-measured the head circumference several times to confirm. Daniel's motor impairment is judged to be mild and I did not find evidence of many [sic] mental impairment. A review of medical records sent on April 16th reveals that following Daniel's birth at Bayfront Health at Springhill Hospital at 38 4/7 weeks gestation he was transferred to All Children's Hospital. Because of concern over low Apgar scores of 0, 0, 2, 4 and 5 at 1, 5, 10, 15 and 20 minutes, lethargy and tremors, he was placed in a hypothermic protpocol at 1 hour of life which was formally implemented upon arrival at All Children's Hospital. Daniel underwent total body cooling for 3 days. He developed seizures within 35 minutes of delivery and was treated with phenobarbital. Dopamine and hydrocortisone were administered. His nursery course was complicated by MRSA colonization which stabilized. He was found to be heterozygous with a prothrombin gene mutation. An MRI scan of the brain obtained on May 12 revealed a questionable area of thrombosis but a repeat MRI scan on May 22 was significant only for enlarged extraaxial spaces. In summary, Daniel has done remarkably well and now has only a very mild motor impairment affecting his gait and to a lesser degree his oroalimentary coordination. His head growth is borderline. I believe the hypothermia protocol played a role in improving his long- term prognosis. Daniel does not have either a substantial mental or motor impairment and I am not recommending him for consideration within the NICA Program. Dr. Duchowny was deposed on January 15, 2015, wherein he testified in pertinent part as follows: Q. Okay. All right. And these records discuss and describe certain issues, and I know you said you read the mom's deposition. She raised some issues about the child's coordination running or about some of the swallowing issues. Is it fair to say that any issue that's been raised, either by Mom in her deposition or by any of the health care providers in the records that you reviewed or any issues that you noted in your report, are all related to this developmentally based disorder that was established in utero? A. That's what I believe, yes. Q. And is that your opinion within a reasonable degree of medical probability? A. It is. * * * Q. Doctor, are you familiar with the term or definition of birth-related neurological injury as it's used with Chapter 766 of the Florida Statutes? A. I believe so, yes. Q. Okay. So I want to ask you then: Do you have an opinion whether Daniel is permanently and substantially mentally and physically impaired? MS. DAWSON: Form THE WITNESS: I do BY MR. GRACE: Q. What's that opinion Doctor? A. I do not believe that he has a substantial mental or physical impairment. Q. And just in summary fashion – I'm not asking for you to re-testify about all your prior opinions. But in summary fashion, tell us the basis for that opinion and where you gathered your support. A. It's because I believe that Daniel's motor dysfunction is mild and primarily is associated with incoordination which will improve over time. And I also believe that his delayed expressive language development will also improve over time. So they're mild now and will continue to improve. Therefore, neither domain represents a substantial impairment. Q. Is that opinion given within a reasonable degree of medical probability? A. Yes. Q. Doctor, in response to Mr. Valenzuela's question, you briefly touched on MRI scans that were done. Did you review the actual films, or did you rely on the reports? A. I can't recall. I have not reviewed them recently. If I had to guess, I would say that I relied on the reports at that time, but I honestly can't recall. Q. Okay. There were two scans done. And with regard to those scans, you indicated in your report on page 5 there was a questionable area of thrombosis? A. Yes, that was on the first one I believe. Q. All right, what is thrombosis? A. Blood clot. Q. And are you able to tell us what you attribute that clot to? A. I don't know. Q. Then there was a repeat MRI scan done on May 22nd, correct? A. Yes sir. Q. All right. And what were the findings on that? A. That showed no abnormalities in the brain, no evidence of thrombosis, and an extra-axial collection of fluid, meaning a collection of fluid outside the brain, not within the brain substance itself. Q. With regard to your opinion that Daniel has not suffered a birth-related neurological injury, did you rely on these MRI's to formulate that opinion? A. Yes, that was one component. Q. Okay. And how did you rely on these? What's the significance? A. Well, I don't think it's -- that you can rely on any one aspect. What I did was factor the findings on the MRI with the history and with my findings on physical examination as well as the history of Daniel's development. Putting all of that information together, in my opinion, yields a consistent pattern and diagnosis of developmental delay. I thought Daniel's examination revealed developmental findings, as I've stated previously. And the fact that his follow-up MRI showed no evidence of a structural brain injury, in my opinion, supported that diagnosis. Dr. Willis is of the opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the post- delivery period, and that seizure activity shortly after birth is consistent with brain injury as the result of oxygen deprivation. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny's opinion that Daniel does not have a substantial mental or physical impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny that Daniel does not have a substantial mental and physical impairment. While Daniel has some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
Findings Of Fact Petitioner was employed by Respondent from April 29, 1979 until she was terminated on November 8, 1983. From approximately December 1982 to the time of her termination, Petitioner was a deli clerk. No evidence was presented of her job classification or duties from April 29, 1979 to December, 1982. On October 23, 1979 Petitioner was injured on the job while working for Respondent. She missed three weeks of work due to this injury. Petitioner sustained a second accident on the job on September 14, 1982 when she tripped over a protruding metal bar and fell, injuring her back, hip, arm and neck. Although she did not immediately miss any work following this second accident, she was out of work from early February 1983 until late April, 1983 while she was under a doctor's care for her injuries. She was released by her doctor to return to work on or about April 21, 1983. On September 29, 1983 Petitioner received a written warning from her supervisor for poor performance on the job, and violation of store procedures. Specifically, she was spending too much time with some customers while leaving other customers waiting, and was not properly making sandwiches pursuant to store procedures. Petitioner received no raises or promotions during the time material hereto, and other employees were hired after her for the same job at a higher rate of pay. Other employees did receive pay raises during this time. October 27, 1983 was Petitioner's last day of work. She went for a myelogram on the next day, her day off, and thereafter was told by the deli manager to take the rest of the week off. When she returned to work on November 7, 1983 she was told she had been replaced. On November 8, 1983 her supervisor met with her and officially terminated her. Petitioner testified the reason she was given for her termination was she "was not doing her work" and her supervisor "could no longer have her around" the store. Petitioner disputes these reasons for her termination. As a result of her injuries, Petitioner had to wear a back brace on the job, and she was in pain. However, she testified she always did her job, carried out all assigned tasks, including cleaning an 8 foot oven, assisted her co-workers in their jobs, and was always courteous and attentive to customers. Seven former co-workers called by Petitioner testified on her behalf and confirmed her testimony. Arnold Banals found no fault with Petitioner as a co- worker and tried unsuccessfully to get her a raise; Pam Meers had no problem working with Petitioner, and stated she was always on the job and courteous to customers; Betty Barrett described Petitioner as a hard worker and dependable; Mark Frierson considered Petitioner one of the best employees in the store who went cut of her way to help customers and co-workers; Mark Bradstock testified that Petitioner never took breaks and never complained about her back pain; Christina Dahl confirmed that Petitioner was a good worker and testified she cleaned the 8 foot oven spotless; and Sherrie Myers, Petitioner's daughter, Mark Frierson and Christina Dahl all confirmed they were making more than Petitioner and received raises, although Petitioner was employed by Respondent longer than them. Respondent admitted, through the testimony of Marshall Glass, that Petitioner was a conscientious worker who was good to some customers and co- workers. However, Glass testified Petitioner's injuries did adversely affect her job performance, and therefore, he stated that the termination was due solely to Petitioner's inability to do her job. A medical statement from Lawrence S. Cohen, M.D., dated November 28, 1983, which was approximately three weeks after her termination, states she had been cut of work for a month with shingles and a sprained ankle, and further, required brace immobilization. It indicates she would be returning to work in two days, but would require re-evaluation in 6 weeks. This statement contradicts Petitioner's position that she was able to work in early November, 1983. In fact, she had to have a myelogram, was suffering from shingles and a sprained ankle, and was immobilized with a back brace at that time. By November 30, 1984 Petitioner's back and hip condition associated with her injuries had deteriorated to the extent that Tomas E. Delgado, M.D., expressed the opinion that she had reached maximum medical improvement but could still not bend, lift more than 15 pounds, or stand for more than one hour at a time nor more than a total of four hours in a day. In September, 1985 C. Jin Whang, M.D., found Petitioner had reached maximum medical benefit. He advised her not to lift anything over 40 pounds and to avoid excessive lower back and neck movement. The medical diagnosis, nature and extent of her injuries is unclear since the medical statements submitted in evidence conflict in certain respects. Nevertheless, it is clear that from at least early November, 1983, Petitioner has been unable to stand for extended periods, lift, or perform movements associated with her former position of deli clerk. At the time of her termination in November, 1983, the evidence establishes that Petitioner was carrying out her job responsibilities in a satisfactory manner as far as her co- workers were concerned. However, medical statements confirm Respondent's testimony that her condition had deteriorated, and she could not perform her job in a manner that was satisfactory to her employer. Petitioner was 52 years of age at the time of her termination. There is no competent substantial evidence that she was terminated due to unlawful discrimination based on age. Other than the injuries discussed above, there is no competent substantial evidence of any handicap, nor of any unlawful discrimination based on a handicap. Regarding Petitioner's charge that Respondent unlawfully discriminated against her due to her injuries, and resulting disability sustained while on the job, Petitioner has not established a prima facie case of discrimination. Respondent has articulated a nondiscriminatory reason for the termination of Petitioner on November 8, 1983. The evidence does establish that Petitioner was unable to perform her job duties at the time of her termination, and therefore Respondent had legitimate, nondiscriminatory reasons for terminating her. Petitioner has not shown that she could have continued to perform her job duties during and after November, 1983, and therefore has not established that her termination at that time was pretextual. Petitioner has received workers' compensation benefits for lost wages from November 9, 1983 to the present. On the basis of this, Glass asserted, as Respondent's Comptroller, that Petitioner has sustained no economic loss even if unlawful discrimination occurred. Petitioner offered absolutely no evidence regarding her rate of pay with Respondent, the extent of her workers' compensation benefits and any economic loss she has sustained. She did not refute or in any way contest Glass' assertion, and admitted she has received workers' compensation benefits for all lost wages. Therefore, there is no basis for any finding of economic loss. Respondent does not contest that it is an "employer" with the meaning of Florida Human Rights Act of 1977, Chapter 760, Florida Statutes.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 30th day of March, 1987 in Tallahassee, Florida. DONALD D. CONN 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 30th day of March, 1987. COPIES FURNISHED: Effie C. Tew 1902 Meridel Avenue Tampa, Fl 33612 Marshall R. Glass Post Office Box 1808 Tampa, Fl 33601 Regina McGriff, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was employed as a cabin services attendant by the Respondent, Aircraft Service International, Inc., at the Tampa International Airport. For the most part, he was working the 8:00 PM to 5:00 AM shift. Petitioner started working for Respondent in October, 1988. His duties were to maintain both the inside and outside of commercial passenger aircraft, the owners of which had contracted with Respondent for their cleaning, servicing and supply. When he was first hired by Respondent, Petitioner was given training in the requirements of his duties by video tape. The language used was English and Petitioner is not fluent in English. Nonetheless, he was able to understand the requirements of his job from observing the video and what was depicted thereon. The duties did not change over the approximately 4 years he worked for the Respondent. Petitioner claims that the majority of his duties were outside the aircraft. At the time of his employment, Petitioner was also furnished with several documents, all of which were in English, and none of which did he understand. He signed them all, however, on the recommendation of his friend who had brought him to the company and assisted him in getting the job. Other documentation was explained to him by Mr. Goerbelini, one of his supervisors. At no time, however, did Petitioner feel comfortable with the use of English, and he relied upon others to explain to him what he was signing when any documentation was given to him for signature. Petitioner claims that throughout the entire period he was employed by Respondent he was never late for work. Notwithstanding that claim, Petitioner admitted having received one counselling form and one letter of warning, both of which, it appears, referred to his continuing tardiness and absenteeism. The absenteeism did not begin, however, until toward the end of his employment. Company records show that during 1990 he was absent only 5 days, all of which were sick days. In 1991 he was also absent for 5 sick days. In 1992, however, he was absent 22 days, of which 14 are reflected as sick days, and this was prior to his termination from employment in September, 1992. Petitioner claims that he had no trouble with his coworkers and was satisfied with his job. His performance was described as adequate when he was on duty, and he was never disciplined for improper performance of his duties. In June, 1992, however, after Petitioner had experienced several episodes of dizziness and sleepiness on the job, he went to see Dr. Santayana, an internal medicine specialist, who, after testing, determined that Petitioner was suffering from the onset of diabetes which, the doctor felt, could be treated and controlled by diet. He so advised the Petitioner. The first visit was on June 25, 1992. On August 10, 1992, Petitioner returned to the doctor, having lost 10 pounds, and reported he felt "much better." Again, on September 11, 1992, Petitioner reported to the doctor he had lost an additional 6 pounds and felt "great." Petitioner did not return to see Dr. Santayana after that visit, however. Petitioner claims that while he was suffering the symptoms of his onset diabetes, he would become dizzy, sometimes while he was driving service equipment around aircraft or while he was climbing the 21 or more feet of an entrance gateway in order to service the plane. When he reported this to Mr. Goerbelini, he asserts, he was advised to go home and stay there until he felt better. He did this, but Dr. Santayana indicates there was no medical reason for Petitioner to remain away from work and at no time did he indicate to Petitioner it was necessary for him to do this. On one occasion, Petitioner requested a physician's statement testifying to the diabetic condition, which the doctor provided. On several other occasions, Petitioner requested notes from the doctor that it was all right for him to return to work, and on both occasions, the doctor obliged. On neither, however, did he indicate the reason for Petitioner's absence though Petitioner asserts it was because of his diabetic condition. Petitioner claims he delivered not only the physician's written diagnosis of diabetes but also the two return to work excuses given him by the doctor to Ms. Amorelli, the secretary in the office. She, however, has no recollection of ever having received them, though it appears the work excuses were in the company records. They were not introduced into evidence, however. It appears that the discharge of Petitioner was predicated upon his absenteeism and his tardiness. The company documentation supporting this was not offered into evidence. Testimony of Respondent's witnesses, nonetheless, appears to indicate a repeated period of tardiness, most of which, however, are indicated as being no more than one or two minutes in duration. Petitioner, while denying he was ever tardy, nonetheless indicated that he was shown to be tardy because when he would appear at work to clock in on time, he was not allowed to do so before the regular start of work time. As a result, all shift workers, some 8 to 10 people, were attempting to clock in at the same time. This was impossible, and some, including Petitioner, were, perforce, late. The clock records were not offered, however, and it is difficult to determine the exact number of tardinesses or when they occurred. However, the company witness indicated that Petitioner was late 18 times in 1990, 31 times in 1991, and 8 times in 1992 until his discharge on September 10. There is also some evidence, and Petitioner admits, that while he was working for Respondent, he was also detailing automobiles for extra income. Dr. Santayana indicated that Petitioner's condition should not have any impact on his use of equipment. The diabetes was to be controlled by diet, not medication. At no time did the doctor ever tell Petitioner not to work with the equipment. So long as the diabetes was controlled and did not result in either drowsiness or dizziness, there was no reason that Petitioner could not work. It would appear from the doctor's testimony and records, that the diabetes was being satisfactorily controlled by diet since Petitioner reported his condition had improved and his health was much better. In any case, his diabetes would not have required any special work accommodation. Petitioner alleges that on one visit to the doctor he was advised to remain home from work, but the doctor denies ever having told him this. Petitioner reports that while his diabetes was a problem, he went to Mr. Goerbelini and requested a change to the day shift. He never received it. Petitioner also allegedly reported his condition to a Mr. Rodriguez and to several of his coworkers, yet testimony of the witnesses called by Respondent indicated neither of these ever reported they were aware of his condition. Mr. McClure, the station manager, at no time was made aware of Petitioner's physical problems. He first found out Petitioner had diabetes when he learned the EEOC complaint was filed. Of the more than 200 employees Respondent has at its Tampa operation, approximately 40 percent are Latin. Of the balance, approximately 15 percent are African American and 45 percent are Caucasian. Seventy percent of those who do the type of work done by Petitioner are Latin. Nonetheless, all operations manuals are in English and Respondent has a requirement that all people who work for it at this installation must be able to speak and understand English. This is predicated upon safety conditions and the requirements of at least one of the carriers whose planes are serviced by Respondent, who requires employees working on its aircraft be conversant in English. The written job description also requires familiarity with English. Though Mr. McClure did not hire Petitioner, he is satisfied the procedures in this case, requiring a demonstrated ability to use and understand English, would have been followed in Petitioner's case as they have been in the past. Respondent is familiar with and complies with the requirements of the Americans with Disabilities Act and the Florida Civil Rights Act. Mr. McClure has notified his supervisors that any employee claiming a disability should be brought to his attention personally so that, if possible, an accommodation can be made for that handicap. This is done routinely, and at the present time, there are several employees, many of whom were hired as early as the late 1960's, whose handicaps are accommodated by the Respondent. Respondent contends, and there is no evidence to show it not to be true, that its requirements, rules and regulations dealing with tardiness, absenteeism, and the requirement to be conversant in English are uniformly applied throughout and across the work force. Other employees have been counselled for tardiness and some have been discharged because of attendance problems including tardiness. Notwithstanding Petitioner's claims that he was not counselled regarding his tardiness, Mr. Wells indicates he had discussed Petitioner's tardiness and absenteeism, along with other employees, with Mr. Goerbelini. The latter counselled the Petitioner and this was memorialized on counselling forms, but it is important to note that Petitioner was not the only person being counselled for attendance problems. He was warned in both English and Spanish that his job was in jeopardy, and when his attendance did not improve after the warnings, he was terminated. Notwithstanding the appearance of the doctor's return to work notes in Respondent's records, Mr. Wells indicates that at no time did Petitioner give any explanation for his absences, other than that he was sick. None of Petitioner's drowsy or dizzy spells were brought to his attention. Had he been told that Petitioner's condition was hazardous to him or other workers, they would have found other work for him to do until he improved. Mr. Wells indicates he had difficulty speaking with Petitioner because of language, but after Petitioner was trained, it was clear he spoke enough English to do the job required of him. Wells did not know of Petitioner's diabetes until after he had been fired. Neither Petitioner nor anyone else had brought that information to his attention. Ms. Amorelli was the person who dealt primarily with Petitioner when he would come to work, other than his supervisor. She conversed with him primarily in Spanish since he had difficulty expressing himself in English. Nevertheless, she is satisfied he understood English. When the first written counselling regarding Petitioner's absenteeism and tardiness was completed, she gave it to him to read and he did so. She is satisfied he understood it. The second warning, which was also in writing, was given to him to read and he appeared to understand it as well. She did not receive the discharge statement nor the doctor's undated letter of diagnosis. By the same token, she asserts Petitioner never discussed his illness with her nor did she know he had been diagnosed as having diabetes. According to company policy, when an employee is ill and not going to come to work, he or she is supposed to call her or, in her absence, the immediate supervisor. At no time did Petitioner ever call her about an absence. Her duty hours were usually inconsistent with his, however. She does not know if he called his immediate supervisor. All of Respondent's witnesses testified that while a lateness of one minute would not result in discharge, continued and repeated lateness does, and though other employees were disciplined and ultimately discharged for tardiness, Petitioner stands out, in Ms. Amorelli's mind, as being late more than most employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Jorge Pacheco's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of handicap be denied. RECOMMENDED this 23rd day of March, 1994 in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of March, 1994. COPIES FURNISHED: Norman A. Palumbo, Esquire Post Office Box 10845 Tampa, Florida 33679 Terry Rinehart Qualified Representative Aircraft Service International, Incorporated 8240 NW 52nd Terrace, Suite 200 Miami, Florida 33165 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Eleanor Breen Zayas was born on May 8, 2015, at University of South Florida Health, South Tampa Center, in Tampa, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Eleanor. In an affidavit dated October 28, 2016, Dr. Willis described his findings in pertinent part as follows: In summary, delivery was complicated by a prolonged FHR deceleration about 8 hours prior to delivery, maternal chrioamnionitis and fetal tachycardia. Cesarean section was done with thick Meconium present. The baby was not depressed at birth. Cord blood gas pH was normal (pH 7.36). However, oxygen desaturation occurred at 5 hours after birth with seizure activity following shortly after. MRI within 24-hours of birth showed acute cerebral infarction. The baby suffered a cerebral infarction. The exact timing of the infarction is difficult to determine. However, it is possible the infarction occurred during the severe and prolonged FHR deceleration 8 hours prior to birth. It appears the baby recovered from this hypoxic event during the remaining 8 hours of labor. Therefore, the cord blood gas was not abnormal at birth and the baby was not depressed at birth. Infection (Choriomnionitis) could be a contributing factor. The other opinion would be the infarct occurred after delivery, primarily related to infection. There was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor. Oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the injury. Dr. Willis’ opinion that there was an apparent obstetrical event that may have resulted in loss of oxygen to the baby’s brain during labor is credited. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Eleanor. Dr. Sigurdardottir reviewed Eleanor’s medical records, and performed an independent medical examination on her on August 10, 2016. In a neurology evaluation based upon this examination and a medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a 14-month-old girl with a sinus vein thrombosis at birth, focal seizures and possible subsequent infarction. This is likely a birth related injury. Her recovery has been remarkable and neurologic exam today is suggestive of mild expressive language delay, but no focal motor abnormalities are found. Results as to Question 1: The patient is found to have no substantial physical or mental impairment at this time. Results as to Question 2: Eleanor’s injury is a neurologic injury to the brain occurred [sic] due to oxygen deprivation and is felt to be birth related. Results as to Question 3: Eleanor’s prognosis for full recovery is extremely good and mild expressive delays are not likely to have any lasting ill effect. In light of the above-mentioned details, although clear evidence is that Eleanor’s infarct and thrombosis was due to a difficult prolonged birth with chrioamnionitis and recurrent decelerations, she has made such good recovery that at this time I do not recommend Eleanor being included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. In order for a birth-related injury to be compensable under the NICA Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that Eleanor does not have a substantial physical or mental impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir that Eleanor does not have a substantial physical or mental impairment.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
Findings Of Fact Melina Antunes was born on August 27, 2015, at Florida Hospital, located in Orlando, Florida. Melina weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Melina. In a medical report dated December 12, 2016, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, induction of labor was complicated by a spontaneous uterine rupture. The baby and placenta were expelled into the maternal abdomen. The baby was depressed at birth with low Apgar scores and a cord blood gas consistent with acidosis (pH 6.65). MRI was consistent with HIE. There was an apparent obstetrical event (uterine rupture) that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Melina and to review her medical records. Dr. Sigurdardottir examined Melina on February 15, 2017. In a medical report dated February 15, 2017, Dr. Sigurdardottir summarized her examination of Melina and opined in pertinent part as follows: Summary: Here we have a 17-month-old born after a sudden uterine rupture during active labor. The patient had neurologic depression at birth, significant acidosis with a pH of 6.6 and required active cooling as well as supportive medication for seizures in the neonatal period. She did have well documented injury on MRI but has made a remarkable recovery. Neurologic exam today, has mild abnormalities, but no standardized developmental testing is available for our review. Result as to question 1: Melina is not found to have substantial physical or mental impairment at this time. Results as to question 2: In review of available documents, Melina does have the clinical picture of an acute birth related hypoxic injury with both the clinical features of hypoxic encephalopathy and electrographic and MRI evidence to suggest hypoxic injury. Result as to question 3: The prognosis for full motor and mental recovery currently is excellent and her life expectancy is full. In light of her normal cognitive abilities and near normal neurologic exam, I do not feel that Melina should be included in the NICA program. If needed, I will be happy to answer additional questions or review further documentation of her developmental status. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Melina does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
