The Issue The issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).
Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Proposed Florida Administrative Code Rules 65G- 4.0021, 65G-4.0022, 65G-4.0023, 65G-4.0024, and 65G-4.0025 are invalid exercises of delegated legislative authority.
Findings Of Fact The Agency for Health Care Administration (AHCA) is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, called the "Medicaid program." See § 409.902, Fla. Stat. (2008). The Respondent, Agency for Persons with Disabilities (APD), is the responsible agency, as defined in Chapter 393, Florida Statutes (2008), for the operation of the Medicaid Waiver program for developmentally disabled persons. The individual Petitioners are clients in the Medicaid Waiver program. They are eligible for services because they have a developmental disability, as defined in Subsection 393.063(9), Florida Statutes, which is as follows: “Developmental disability" means a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely. The other Petitioner, the Advocacy Center for Persons with Disabilities, Inc., is a not-for-profit group that represents persons with disabilities. Typically, a person who meets the statutory definition for eligibility has the assistance of a waiver support coordinator (WSC), trained by APD, whose role is described in the Agency for Health Care Administration's Developmental Disabilities Waiver Services Coverage and Limitations Handbook (the “Handbook”). The Handbook has been adopted, by reference, in Florida Administrative Code Rule 59G-13.080(12). The WSC assesses the needs of the person for medical, physical and functional services and assists the individual in selecting the services in development of a support plan. The support plan is individualized, based on the preferences, interests, talents, attributes and needs of the recipient. From the support plan, the WSC develops a proposed cost plan that reflects the level, intensity, duration, and types of services needed, and the cost of the services. The WSC submits the proposed cost plan for Prior Service Authorization review and approval, by one of the APD- contract companies, MAXIMUS and APS Healthcare. If approved, the eligible person with the documented "medical necessity" for services becomes a waiver client with an approved cost plan for one fiscal year. The WSC is supposed to conduct cost plan reviews at least once a year to determine if a change in circumstances necessitates a change in services and costs. Rulemaking Authority In 2007, the Florida Legislature amended Section 393.0661, Florida Statute (2008), related to home and community- based services, which are available pursuant to the Medicaid Waiver program, to provide, in part, as follows: § 393.0661. Home and community-based services delivery system; comprehensive redesign The Legislature finds that the home and community-based services delivery system for persons with developmental disabilities and the availability of appropriated funds are two of the critical elements in making services available. Therefore, it is the intent of the Legislature that the Agency for Persons with Disabilities shall develop and implement a comprehensive redesign of the system. The redesign of the home and community-based services system shall include, at a minimum, all actions necessary to achieve an appropriate rate structure, client choice within a specified service package, appropriate assessment strategies, an efficient billing process that contains reconciliation and monitoring components, a redefined role for support coordinators that avoids potential conflicts of interest, and ensures that family/client budgets are linked to levels of need. * * * (b) The agency, with the concurrence of the Agency for Health Care Administration, may contract for the determination of medical necessity and establishment of individual budgets. A provider of services rendered to persons with developmental disabilities pursuant to a federally approved waiver shall be reimbursed according to a rate methodology based upon an analysis of the expenditure history and prospective costs of providers participating in the waiver program, or under any other methodology developed by the Agency for Health Care Administration, in consultation with the Agency for Persons with Disabilities, and approved by the Federal Government in accordance with the waiver. The Agency for Health Care Administration, in consultation with the agency, shall seek federal approval and implement a four-tiered waiver system to serve clients with developmental disabilities in the developmental disabilities and family and supported living waivers. The agency shall assign all clients receiving services through the developmental disabilities waiver to a tier based on a valid assessment instrument, client characteristics, and other appropriate assessment methods. * * * The Agency for Health Care Administration shall also seek federal approval to provide a consumer-directed option for persons with developmental disabilities which corresponds to the funding levels in each of the waiver tiers. The agency shall implement the four-tiered waiver system beginning with tiers one, three, and four and followed by tier two. The agency and the Agency for Health Care Administration may adopt any rules necessary to administer this subsection. The agency shall seek federal waivers and amend contracts as necessary to make changes to services defined in federal waiver programs administered by the agency as follows: Supported living coaching services shall not exceed 20 hours per month for persons who also receive in-home support services. Limited support coordination services shall be the only type of support coordination service provided to persons under the age of 18 who live in the family home. Personal care assistance services shall be limited to no more than 180 hours per calendar month and shall not include rate modifiers. Additional hours may be authorized for persons who have intensive physical, medical, or adaptive needs if such hours are essential for avoiding institutionalization. Residential habilitation services shall be limited to 8 hours per day. Additional hours may be authorized for persons who have intensive medical or adaptive needs and if such hours are essential for avoiding institutionalization, or for persons who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harming themselves or others. This restriction shall be in effect until the four-tiered waiver system is fully implemented. Chore services, nonresidential support services, and homemaker services shall be eliminated. The agency shall expand the definition of in-home support services to enable the provider of the service to include activities previously provided in these eliminated services. Massage therapy and psychological assessment services shall be eliminated. The agency shall conduct supplemental cost plan reviews to verify the medical necessity of authorized services for plans that have increased by more than 8 percent during either of the 2 preceding fiscal years. The agency shall implement a consolidated residential habilitation rate structure to increase savings to the state through a more cost-effective payment method and establish uniform rates for intensive behavioral residential habilitation services. Pending federal approval, the agency is authorized to extend current support plans for clients receiving services under Medicaid waivers for 1 year beginning July 1, 2007, or from the date approved, whichever is later. Clients who have a substantial change in circumstances which threatens their health and safety may be reassessed during this year in order to determine the necessity for a change in their support plan. Nothing in this section or in any administrative rule shall be construed to prevent or limit the Agency for Health Care Administration, in consultation with the Agency for Persons with Disabilities, from adjusting fees, reimbursement rates, lengths of stay, number of visits, or number of services, or from limiting enrollment, or making any other adjustment necessary to comply with the availability of moneys and any limitations or directions provided for in the General Appropriations Act. The Agency for Persons with Disabilities shall submit quarterly status reports to the Executive Office of the Governor, the chair of the Senate Ways and Means Committee or its successor, and the chair of the House Fiscal Council or its successor regarding the financial status of home and community-based services, including the number of enrolled individuals who are receiving services through one or more programs; the number of individuals who have requested services who are not enrolled but who are receiving services through one or more programs, with a description indicating the programs from which the individual is receiving services; the number of individuals who have refused an offer of services but who choose to remain on the list of individuals waiting for services; the number of individuals who have requested services but who are receiving no services; a frequency distribution indicating the length of time individuals have been waiting for services; and information concerning the actual and projected costs compared to the amount of the appropriation available to the program and any projected surpluses or deficits. If at any time an analysis by the agency, in consultation with the Agency for Health Care Administration, indicates that the cost of services is expected to exceed the amount appropriated, the agency shall submit a plan in accordance with subsection to the Executive Office of the Governor, the chair of the Senate Ways and Means Committee or its successor, and the chair of the House Fiscal Council or its successor to remain within the amount appropriated. The agency shall work with the Agency for Health Care Administration to implement the plan so as to remain within the appropriation. [Emphasis added.] The statute also continues to provide, as before, that no monetary limit is set for the total budget in a cost plan year for the Mental Retardation and Developmental Disabilities Waiver, also known as the "DD Waiver" or "big waiver," now known as Tier One. It establishes limits of $55,000, and $35,000 a year for newly-created Tier Two and Tier Three Waivers, respectively. Tier Four, also previously known as the Family and Supported Living Waiver, continues to have an annual cost budget limit of $14,792. Federal Approval AHCA, in consultation with APD, obtained federal approval to implement the four-tiered waiver system to serve clients with developmental disabilities. The Federal Center for Medicaid and Medicare Services (CMS) approved the creation of the Mental Retardation and Developmental Disabilities Waiver, which is now Tier One, in 2003. CMS approved the creation of the Family and Supported Living Waiver, which is now comparable to Tier Four, with a limit on spending of $14,792.00, in 2005. In February 2008, CMS approved Florida's request to implement Tiers Two and Three with spending limits of $55,000 and $35,000, respectively. Rulemaking Requirements On December 7, 2007, APD published a Notice of Rule Development and Workshop, in Volume 33, Number 49, Florida Administrative Weekly. On March 28, 2008, APD published the Notice of Proposed Rule and Public Hearing, in Volume 34, Number 13, Florida Administrative Weekly. On May 6, 2008, Joint Administrative Procedures Committee issued the certification of the tier rules, which are challenged in this proceeding. During the rulemaking process, APD invited stakeholders, including family members and organizations representing various different interests in the developmental disability community, to participate in the development of the tier rules. APD and AHCA conducted a Rule Development Workshop on December 21, 2007, and a public hearing on April 24, 2008. Representatives of waiver recipients and family members, WSCs and other service providers, and associations and interest groups for the developmental disabilities waiver community attended the public hearing. At both the rule workshop and the public hearing, APD received oral and written comments. Most speakers opposed the proposed tier rules. A major concern was the potential lack of a mechanism for "migration" or "transition" among tiers as a client's condition and circumstances change. As a result, the following Subsection was added to Proposed Rule 65G-4.0021: (5) The Agency will review a client’s tier eligibility when a client has a significant change in circumstance or condition that impacts on the client’s health, safety, or welfare or when a change in the client’s plan of care is required to avoid institutionalization. The information identifying and documenting a significant change in circumstance or condition that necessitates additional or different services must be submitted by the client’s Waiver Support Coordinator to the appropriate Agency Area office for determination. APD presented evidence that the provision for review of tier eligibility based on a "significant change in circumstance or condition" is less onerous than the current requirement for a client to be in "crisis." It also noted that WSCs are well-trained to prepare assessments and to provide appropriate documentation of significant changes in circumstances and conditions. Petitioners' expert testified that the phrase "when a change in the client’s plan of care is required to avoid institutionalization” is unnecessarily restrictive, in that it fails to consider the need to maintain a person's quality of life. That interpretation ignores the preceding phrase that requires consideration of changes "that impact on the client’s health, safety, or welfare." Currently, clients who are receiving waiver services have received notice that the tier system was in the process of being implemented and that APD would be providing additional information in the future. As of this time, APD has not made any tier assignments, although preliminary analyses have been conducted by APD and by some WSCs. The evidence demonstrated that APD followed proper rulemaking procedures, including taking into consideration the comments suggesting a procedure for transitions between tiers when warranted. Tier Assignment Assessment Instrument In addition to the requirement in Subsection 393.0661(3), Florida Statutes (2008), for a valid assessment instrument for the assignment of clients to a tier, Subsection 393.0661(1)(a), Florida Statutes, more specifically provides that: The agency shall use an assessment instrument that is reliable and valid. The agency may contract with an external vendor or may use support coordinators to complete client assessments if it develops sufficient safeguards and training to ensure ongoing inter-rater reliability. [Emphasis added]. Petitioners noted that the proposed rules lack a provision requiring or designating any assessment instrument. Petitioners also presented evidence that APD is using the Questionnaire for Situational Information (QSI) as an assessment instrument, and asserted that it has not been tested for reliability and validity. APD is planning to test the QSI and instructed WSCs to begin using it in January 2008, but APD plans to use the Individual Cost Guidelines (ICGs) that were administered through December 2007, not the QSI, as the assessment instrument for use in the tier assignment process. The ICG has been used since 2003, and is administered every three years. WSCs and APD staff were trained, and WSCs certified, after passing examinations, to administer the ICG. The ICG is the approved assessment in the Handbook. The "validity" of the ICG, meaning its usefulness as a tool for its intended purpose and, in this case, the planning of service utilization and costs, was established in a study by Mercer Human Resource Consulting in March 2004. The "reliability" of the ICG, the ability of different raters over time to use it to achieve an acceptably similar range of results was tested by MGT of America. The MGT report of January 19, 2005, indicated an acceptable, fairly consistent inter-rater reliability, after face-to-face interviews and a sample size of 213 or 219, although an ideal sample size would have been 250 or 260 subjects. APD staff and WSCs were trained and certified on the ICG again, when it was revised as to cost estimates, although the questions and scoring system were not changed, in 2006. Petitioners' expert testified that an assessment instrument, to be valid and reliable for support planning, should be administered every three years, as the ICG has been, and that the ICG is reliable and valid to assess support needs. Petitioners' expert expressed the opinion that the ICG has not been validated for the purpose of making tier assignments. By contrast, APD's expert reasonably testified that, while not appropriate as the sole instrument to be used to assign clients to tiers, the ICG is useful in the process of assessing service needs and costs. Therefore, the ICG is useful to the extent that costs are a factor and, in fact, it is reasonable to conclude that the annual budgeted cost for services is one of the most objective factors in the tier assignment process. Petitioners' argument is essentially that the failure to designate an assessment instrument in the rule renders the rule invalid. That argument ignores the inclusion of the Handbook which does designate the ICG and which is incorporated by reference in Rule 59G-13, the rule that is included in the tier assignment criteria of Florida Administrative Code Proposed Rule 65G-4.0021(1). See Findings of Fact No. 25. Tier Assignment Process Subsections 393.0661(1) and (3), Florida Statutes (2008), require that appropriate assessment strategies and methods be used in the redesign of the waiver system, and for the assignment of clients to tiers. Petitioners' expert testified that the tier assignment rules create a process that is vague, and that creates arbitrary preconditions, including residency, that take priority over the needs of clients. Proposed Rule 65G-4.0021(1) states that: The Agency for Persons with Disabilities will assign clients of home and community-based waiver services for persons with developmental disabilities to one of the four Tier Waivers created by Section 393.0661, Florida Statutes (2007). The agency will determine the Tier Waiver for which the client is eligible and assign the client to that waiver based on the developmental disabilities waiver criteria and limitations provided in Chapters 393 and 409, F.S., Rule Chapter 59G-13, F.A.C., and this rule Chapter and the Agency’s evaluation of the following information: The client’s level of need in functional, medical, and behavioral areas, as determined through Agency evaluation of client characteristics, the Agency approved assessment process, and support planning information; The client’s service needs as determined through the Agency’s prior service authorization process to be medically necessary; The client’s age and the current living setting; and The availability of supports and services from other sources, including natural and community supports. The reference in the Rule to Florida Administrative Code Chapter 59G-13, includes the Handbook that sets forth specific conditions that, with a determination of medical necessity, require specific services. Client characteristics are assessed using APD worksheets reporting on clients' physical abilities, handicapping conditions, and major life activities. Support plan worksheets include data on strengths, communication style, type of residence, goals, capabilities, adaptive or assistive equipment, and medications or, in other words, a rather comprehensive assessment of conditions, circumstances, and needs. In addition, the need for Specialized Services may also be documents by assessments by various health care professional, such as doctor’s prescriptions, physical therapy and mental health behavioral assessments. Strictly medical services are, however, in general, provided under the Medicaid state plan not the waiver plan. The criteria in statutes and the Handbook when read, in pari materia, with Proposed Rule 65G-4.0021(1) provide comprehensive, appropriate strategies and methods for implementing a tier assignment process that is not vague or arbitrary. Repeated statutory references to residential placements, residential facilities, and living situations single out these factors as reasonable and important in making tier assignments and, therefore, appropriate for inclusion in the rules, unless a specific tier assignment rule contravenes the statute that it purports to implement. Specific Tier Assignments Section 393.0661 and the rules implementing that comprehensive redesign of the Waiver program expands the levels of services from two to four tiers. The individual Petitioners expressed concern that the application of the proposed tier rules to them will arbitrarily cause a reduction in their services. Those concerns are considered in understanding the challenge to the rules, but the individual Petitioners are not entitled to relief in this challenge to the facial validity of the rules as they would be in a proceeding brought under Sections 120.569 and 120.57, Florida Statutes. Proposed Rule 65G-4.0021(2) provides for a continuation of the existing DD Waiver services for Tiers One, Two, and Three, but not for Tier Four, as discussed in Findings of Fact 53 and 54. The services described by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, July 2007 (hereinafter referred to as the “DD Handbook”), adopted by Rule 59G-13.080, F.A.C. and incorporated herein by reference, are available to clients of the Developmental Disabilities Waiver (hereinafter called “the Tier One Waiver”), the Developmental Disabilities Tier Two Waiver (hereinafter called “the Tier Two Waiver”), and Developmental Disabilities Tier Three Waiver (hereinafter called “the Tier Three Waiver”). APD does not take into consideration all available services in making the tier assignments. For example, adult dental services, emergency response needs, adult day training, and supported employment are not considered. APD explained that need for these types of services transcends tiers and are still available to clients, although recipients admittedly will be requires to prioritize their needs within the monetary caps, established by statute. Subsection 393.0661(3)(a) provides: Tier one shall be limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others. Proposed Rule 65G-4.0022, intended to implement tier one, provides: 2) Clients living in a licensed residential facility receiving any of the following services shall be assigned to the Tier One Waiver: Intensive behavioral residential habilitation services; Behavior focus residential habilitation services at the moderate or above level of support; or Standard residential habilitation at the extensive 1, or higher, level of support; or Special medical home care. Nursing service needs that can be met through the Tier Two, Tier Three, or Tier Four Waivers are not “services” or “service needs” that support assignment to the Tier One Waiver. By describing both the residential settings and the level of services required, Proposed Rule 65G-4.0022 describes in logical and reasonable detail the clients, who based on these circumstances, have the most intense needs for Tier One Waiver services. Although Proposed Rule 65G-4.0022 does not define the criteria for intense medical and adaptive needs, by using the Handbook, that is understood to mean an adult who needs personal care assistance with feeding, toileting, and other activities of daily living. Petitioner Geraud Moreland Petitioner Geraud Moreland II is a 34-year-old man who lives with his parents who both work full-time. He receives waiver services because he had a stroke when he was 18 months old and now suffers from severe seizures. His ICG has not been updated since September 2006. In the interim, he has had significant changes in his medical condition. His epilepsy has caused him to lose skills, including the ability to sign words. Petitioner Moreland currently receives personal care assistance for most activities of daily living, supported employment, respite care, companion care, and support coordination services that have been determined to be medically necessary under the DD Waiver. These services total more than $70,000 per year. Petitioner Moreland's supported employment services enable him to work cleaning a school for four hours a day, two days a week. He owns a vending machine business. He cleans his 22 machines, takes out the money, and refills the machines with the assistance of his caregiver. There are no available alternatives or natural supports available to substitute for Petitioner Moreland's personal care assistance and supported employment services, and those services are expected to be unavailable if as his parents have been told, he is assigned permanently to Tier Three, as he is already preliminarily assigned. Despite his change in circumstances since 2006, Petitioner Moreland’s family and WSC have not requested a review of his ICG. If, in fact, Petitioner Moreland is assigned to Tier Three, as his parents expect, APD takes the position that he can decide to use the money up to the cap for his biggest outcome goal, supported employment, even though it is not used as a tier assignment criterion. Obviously, other services that he receives would be reduced, but the monetary cap is set by statute not rule. Petitioner Collin Cone Petitioner Collin Cone is a 14-year-old boy, who is receiving services under the Consumer Directed Care Plus (CDC+) program. He lives with his mother and she provides his personal care assistance that is included in his total cost plan of approximately $60,000 a year. His last ICG was administered in 2006. Since that time he has been diagnosed with irritable bowel syndrome, scoliosis, and worsening eyesight and leg functions. Based on his WSC's projections, Petitioner Collin's mother believes that, because he lives at home, he will be assigned to Tier Four, which has a cap of $14,792. That amount would not be sufficient to allow her to stay home to provide the personal care assistance that he needs, currently compensated at the rate of $18.00 an hour. Although, APD has indicated that Petitioner Collin's personal care assistance could be transferred to the Medicaid State Plan program, the family has received no information regarding the transfer, and understands that the State Plan prohibits the primary care giver from being the personal care assistance provider. APD’s witness indicated that the CDC+ program for personal care assistance by the primary care giver will continue in the Waiver program. The cost is being limited, however, as of July 1, 2008, to $15.00 an hour. The Medicaid State Plan is expanding to include personal care assistance, but that would require the use of a State plan provider. Petitioner Will Baker Petitioner Will Baker is a 77-year-old man, who receives adult dental, support coordination, one-on-one adult training, behavior analysis, incontinence supplies, and residential habilitation services in the DD Waiver program. He has lived in the same group home for at least 10 years and has no family. Petitioner Baker's total cost plan for services is approximately $69,800 a year. His support coordinator expressed the opinion that Petitioner Baker could be placed in Tiers One, Two, or Three, but that he would be a candidate for institutionalization if he is not in Tier One. An APD witness testified that a client assessed with the need for a behavior-focused program in a residential habilitation setting will meet the criteria for intense needs in Tier One. Until the assignments are made, any challenge to Petitioner Baker's tier and services is premature and inappropriate in this rule challenge case. Subsection 393.0661(3)(b) describes Tier Two: Tier two shall be limited to clients whose service needs include a licensed residential facility and greater than 5 hours per day in residential habilitation services or clients in supported living who receive greater than 6 hours a day of in- home support services. Total annual expenditures under tier two may not exceed $55,000 per client each year. Proposed Rule 65G-4.0023 describes the Tier Two Waiver as follows: The total budget in a cost plan year for each Tier Two Waiver client shall not exceed $55,000. The Tier Two Waiver is limited to clients who meet the following criteria: (1) The client’s service needs include placement in a licensed residential facility and authorization for greater than five hours per day of residential habilitation services; or (2) The client is supported living and is authorized to receive more than six hours a day of in-home support services. Proposed Rule 65G-4.0023 matches the statutory description of Tier Two and does not contravene, enlarge or modify the statue. It is reasonable to include a description of Tier Two to make the tier rules complete, even though the statute has the requisite detail for implementation. Subsection 393.0661(3)(c) creates Tier Three as follows: Tier three shall include, but is not limited to, clients requiring residential placements, clients in independent or supported living situations, and clients who live in their family home. Total annual expenditures under tier three may not exceed $35,000 per client each year. The proposed rule to implement the Tier Three statutory provision is: 65G-4.0024 Tier Three Waiver. (1) The total budget in a cost plan year for each Tier Three Waiver client shall not exceed $35,000. A client must meet at least one of the following criteria for assignment to the Tier Three Waiver: (a) The client resides in a licensed residential facility and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (b) The client is 21 or older, resides in their own home and receives Live-in In-Home Support Services and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (c) The client is 21 or older and is authorized to receive Personal Care Assistance services at the moderate level of support as defined in the DD Handbook. (d) The client is 21 or older and is authorized to receive Skilled or Private Duty Nursing Services and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (e) The client is 22 or older and is authorized to receive services of a behavior analyst and/or a behavior assistant. (f) The client is under the age of 22 and authorized to receive the combined services of a behavior analyst and/or a behavior assistant for more than 60 hours per month and is not eligible for the Tier One Waiver or the Tier Two Waiver. (g) The client is 21 or older and is authorized to receive at least one of the following services: (i) Occupational Therapy; or (ii) Physical Therapy; or (iii) Speech Therapy; or (iv) Respiratory Therapy. Tier Three is intended for people who do not qualify for Tier One and Two services, but who live in a residential facility. APD deemed that essential because residential habilitation is not permitted in Tier Four. Subsections (a) and (f) may also include children, and (f) may include children who live in the family home. APD justified the age limits in Tier Three based on the alternative availability of services through the Medicaid State Plan for persons under the age of 21, from the Department of Education for persons under the age of 22 who attend public schools, as well as some vocational rehabilitation services. The exceptions in Subsections (a) and (f) are for any client in a residential facility or one in need of behavioral interventions and assistance for more than 60 hours a month but not at the intensity levels for Tiers One and Two. Section 393.0661(3)(d), Florida Statutes, is a restatement of the existing, most limited level of waiver services. (d) Tier four is the family and supported living waiver. Tier four shall include, but is not limited to, clients in independent or supported living situations and client who live in their family home. An increase to the number of services available to clients in this tier shall not take effect prior to July 1, 2008. Total annual expenditures under tier four may not exceed $14,792 per client each year. With regard to Tier Four, Proposed Rules 65G-4.0021 and 65G-4.0025 provide: The following services described in the DD Handbook are available to clients assigned to the Tier Four Waiver (presently known as The Family and Supported Living Waiver): Adult Day Training; (b) Behavior Analysis; (c) Behavior Assistance; (d) Consumable Medical Supplies; (e) Durable Medical Equipment; (f) Environmental Accessibility Adaptations; In-Home Support Service; Personal Emergency Response System; (i) Respite Care; (j) Support Coordination; (k) Supported Employment; (l) Supported Living Coaching; and (m) Transportation. 65G-4.0025 Tier Four Waiver. The total budget in a cost plan year for each Tier Four Waiver client shall not exceed $14,792 per year. Clients who are not eligible for assignment to the Tier One Waiver, the Tier Two Waiver, or the Tier Three Waiver shall be assigned to the Tier Four Waiver. The criteria for the Tier 4 Waiver includes, but is not limited to: Clients who are currently assigned to receive services through the Family and Supported Living Waiver unless there is a significant change in condition or circumstance as described in subsection 65G- 4.0021(4), F.A.C.; or Clients who are under the age of 22 and residing in their own home or the family home, or Clients who are dependent children who reside in residential facilities licensed by the Department of Children and Families under Section 409.175 F.S.; Tier Four has been in existence in Florida since the State received federal approval in 2005. Petitioners question the logic of placing most children in Tier Four, although, as APD explained with regard to Tiers Three and Four, children are eligible for comparable services through other programs. Petitioners asserted that DD Waiver services are not available in Tier Four in contravention of the last sentence in Subsection 393.0661(3), which states: The Agency for Health Care Administration, in consultation with the agency, shall seek federal approval and implement a four-tiered waiver system to serve clients with developmental disabilities in the developmental disabilities and family and supported living waivers. The agency shall assign all clients receiving services through the developmental disabilities waiver to a tier based on a valid assessment instrument, client characteristics, and other appropriate assessment methods. All services covered under the current developmental disabilities waiver shall be available to all clients in all tiers where appropriate, except as otherwise provided in this subsection or in the General Appropriations Act. (Emphasis added.) That Subsection also directs that the Family and Supported Living Waiver clients be included in the tier system, and the services listed in the rule are the same as those that have always been available in the Family and Supported Living Waiver program.
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
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate. Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.
Findings Of Fact In their joint prehearing statement, filed at hearing, the parties stipulated to the following: During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4) The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987. The Petitioner delivered a child on September 10, 1987. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987. Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.) Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G- 3, P-1, who had a natural delivery in 1981 with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.) Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that: It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied) We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.) By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows: In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith, my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding. Presently, she is doing well and I feel that under the circumstances she has approximately 5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.) On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of April, 1989. COPIES FURNISHED: Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037 Edward H. Feege, Esquire Post Office Box 2165 Lehigh Valley, PA 18001-2165 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Cavalier is in the business of providing various types of telephone services including landline communications, DSL, and Internet TV. They have as many as 150 employees in the Pensacola area and have offices in other locations. Cavalier acquired Talk America, Inc., a predecessor corporation, on April 20, 2006. Ms. Smith began working for Cavalier as a sales representative in December of 2006. As a sales representative for Cavalier, Ms. Smith called potential customers and attempted to sell them services and products provided by Cavalier. She was very successful at this work and was considered to be an excellent employee. Her sales were high, and she was awarded bonuses. On April 19, 2007, Ms. Smith suffered a mini-stroke and was absent from her work until May 2, 2007. At that time, she assumed that she had recovered and reported for work. Her supervisor, Floor Manager Cassandra Pressley, and fellow employees were happy to see her return. To celebrate her return, Ms. Pressley and other employees contributed money that was used to buy flowers for Ms. Smith. As the day progressed, Ms. Pressley noticed Ms. Smith slumped over in her chair and was concerned. Ms. Pressley offered her extra breaks, but Ms. Smith refused her entreaties. Eventually, Ms. Smith became clearly unwell, and with Ms. Pressley's encouragement, she departed with a co-worker who followed her home. On May 2, 2007, Ms. Smith learned from her doctor that she would have to take, or continue with, medical leave. When Ms. Pressley became aware of this, she caused Ms. Smith to communicate with Suzanne Altare, Cavalier's director of human relations for the southeast area. Ms. Altare explained Cavalier's company leave policy. Ms. Altare informed Ms. Smith that she was ineligible for leave pursuant to the Family Medical Leave Act because she had been employed with the company for less than a year. Nevertheless, Ms. Altare told Ms. Smith that she could have eight weeks of unpaid discretionary leave. This leave became effective May 2, 2007. Ms. Altare's actions complied with Cavalier's Employee Handbook. The Employee Handbook requires equal treatment of all employees. Subsequent to May 2, 2007, Ms. Pressley and Ms. Altare both checked in with Ms. Smith by telephone on more than one occasion to see how she was doing and inquired if her doctor was going to provide her with a release so that she might return to work at the end of the eight-week leave. On or about July 5, 2007, in the ninth week of her absence, both Ms. Pressley and Ms. Altare communicated with Ms. Smith by telephone. Ms. Smith informed them that her doctor had not released her for return to employment. Since she could not provide an estimated time of return, she was terminated. Because Ms. Smith was an especially valued employee, Ms. Altare informed her that she would process her termination as voluntary so that when she was physically able, she could return to work at Cavalier. This coincided with what Cavalier had done with other employees who had to stop working temporarily due to an illness. At least one of those had in fact returned upon receiving a release from her doctor. No evidence was adduced by any witness that Ms. Smith either complained of discrimination or requested an accommodation. In September 2007, Ms. Pressley was asked by a person identified as Ms. Smith's husband to help Ms. Smith at a check- cashing facility that was located close to the Cavalier workplace. Ms. Pressley went with him to the check-cashing facility. Ms. Smith approached Ms. Pressley and hugged her. Ms. Pressley inquired as to when Ms. Smith would return. She told Ms. Pressley that she had not been released by her doctor. Ms. Smith testified that she received "disability payments" until December 16, 2007, when her doctor informed her that she could go back to work. Ms. Smith testified, "I figured they would rehire me, anyway, because of my good sales, yes, sir." However, at least up until the time of the hearing, Ms. Smith had not asked to return to her job.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Sarah L. Smith. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lori Y. Baggett, Esquire Carlton Fields 4221 West Bay Scout Boulevard Post Office Box 3239 Tampa, Florida 33607 Sharon Glover, Esquire 2134 West Laburnum Richmond, Virginia 23227 Sarah L. Smith 513 North Reus Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether Petitioner was the subject of an unlawful employment practice by Respondent based on her sex.
Findings Of Fact Bay is a nursing home and rehabilitation center for those in medical need of such services. It is located in Port. St. Joe, Florida. The facility has a number of residents staying at the facility who require help with mobility, standing and walking. The payroll services for Bay are performed by Signature Payroll Services, LLC, which is affiliated with Bay through a parent company. Bay offers all employees a package of employment benefits, including disability benefits. Section 7.2 of the Stakeholder Handbook states: Short & Long Term Disability In the event Stakeholders become disabled due to sickness, pregnancy or accidental injury, the company offers disability insurance . . . Short Term Disability provides for 60% of the Stakeholder's gross weekly wages up to a maximum of twenty four (24) weeks post fourteen (14) days of accident/injury. Long Term Disability provides for 60% of the Stakeholder's monthly wages up to one hundred eight[sic] (180) days after exhausting the Short Term Disability benefit. Please see Human Resources to review detailed summary plan documents for maximums. All new employees are offered the opportunity to enroll in Bay's employment benefit package for 90 days after their employment date. Each employee must affirmatively elect the employment benefits they wish to have and must pay any premiums for those benefits. After 90 days, an employee can only make changes to his or her benefit plan during the employee's annual enrollment period. In addition to the benefit plan, Bay also offers all employees Family Medical Leave for up to 12 weeks and/or a personal leave of absence when the employee is not eligible for leave under other company policies. Leave is addressed in section 8 of the Stakeholder Handbook. Petitioner is a Certified Nurse Assistant (CNA). She was employed by Bay on August 25, 2007. As a CNA, Petitioner was responsible for the direct care of residents at Bay. Her duties included lifting and moving residents as needed. Because of her duties, Petitioner was required to be able to lift a minimum of 50 pounds. Over that amount of weight, Petitioner had extra help and devices to assist with lifting. Throughout her employment, Petitioner was considered a diligent employee that performed her duties well. When Petitioner was hired, Bay offered her the opportunity to enroll in all of the benefits in its employment benefit plan, including disability insurance. Petitioner elected to enroll in life, health, dental and vision insurance. At the time of her hire, the only disability insurance offered to any employee by Bay was insurance under a MetLife group policy for Disability Income Insurance: Long Term Benefits issued to Signature Payroll. There was no evidence of any short-term disability insurance benefit offered to any of Bay's employees other than the MetLife policy described above. Given that there was no short-term disability insurance available to Bay's employees, it was not a discriminatory act for Respondent to not offer Petitioner short-term disability insurance. The insurance was simply not part of the benefit package offered by Bay at the time Petitioner was hired and Petitioner did not elect to enroll in either short term or long-term disability insurance. Petitioner did not change her enrollment elections during the 90-day period after her employment. She was therefore not eligible to add disability insurance to her benefit plan until late 2008. In November or December 2007, Ms. Mills sometimes worked with another CNA named Courtney Preston. At the time, Ms. Preston was pregnant. When Petitioner asked for some help lifting a resident, Ms. Preston told Petitioner that she was on light-duty due to her pregnancy. The charge nurse for the unit, who is the unit supervisor for any given shift, confirmed that Ms. Preston was on light-duty. However, the charge nurse had no authority to place an employee on light-duty. Additionally, there was no evidence in Ms. Preston?s personnel file that she had officially been placed on light-duty by anyone with the authority to do so. At best, it appears that Ms. Preston was simply being treated kindly by her fellow employees and was not officially placed on light-duty by a person with authority to do so. Ms. Preston eventually lost her baby while Petitioner was employed at Bay. The evidence was not clear as to the cause of Ms. Preston's miscarriage. However, the evidence established that Ms. Preston had a risky pregnancy of which the staff at Bay was aware. Later, Ms. Preston again became pregnant and again had a risky pregnancy. She was counseled on several occasions for her excessive absenteeism. In order to help Ms. Preston with her absenteeism, she was offered on-call status with less duty hours if she wanted it. Eventually, sometime after April 30, 2008, Bay terminated Ms. Preston for excessive absences caused, in part, by her pregnancy. On the other hand, Ms. Preston was clearly accommodated during both of her pregnancies while she was employed at Bay. In January or February 2008, Petitioner became pregnant. On February 15, 2008, Petitioner visited her doctor and was given a doctor?s note to limit her lifting to no more than 20 pounds even though she was not having any difficulty performing her job duties. The evidence was unclear as to why the doctor placed Petitioner under lifting restrictions since the doctor, within one to two weeks, raised those restrictions to not over a minimum of 50 pounds after Petitioner told him about the impact the lower-weight restrictions had on her job with Bay. On February 16, 2008, Petitioner gave a copy of the doctor?s note with the 20-pound lifting restrictions to the personnel department. On February 18, 2008, she discussed the lifting restrictions with her supervisors, Cathy Epps and Shannon Guy. They thought light-duty work could be arranged. On February 20, 2008, she discussed the lifting restrictions with David Kendrick, the corporate director of human resources, who was visiting Bay that day. He also thought that some light- duty work might be arranged. However, all of these supervisors wanted other higher-level corporate officials to have input on whether light-duty work was available. Eventually, the corporate legal counsel and the corporate risk manager were consulted on the issue of whether light-duty work was available. Petitioner did not receive light-duty work. Instead, on February 21, 2008, Petitioner was called into a meeting with Cathy Epps and Shannon Guy. Ms. Guy was very upset and tearfully told Petitioner that no light-duty was available and that Petitioner was terminated. Ms. Guy was upset because Petitioner was a good employee that she did not want to lose. Ms. Epps also wanted to keep Petitioner as an employee. Ms. Guy explained that someone from the corporate office decided Petitioner was terminated because they were afraid Petitioner was too much of a risk to employ since she could not meet the minimum-lifting requirements and "as a CNA she would be expected to assist residents, and . . . if we had a resident who was falling and she would be presented with a choice of either go to help the resident or run the risk of hurting herself or, . . . not helping the resident and, . . . allowing something to happen." Ms. Guy told Ms. Mills that she could return to work once her pregnancy was over. Importantly, Petitioner had been performing her normal duties without any problems or need for assistance throughout the several days that the corporate office was making a decision about whether light-duty work was available to Petitioner. This activity alone shows Petitioner was still qualified for her job since she continued to perform her job duties. During this period, no one from the corporate office or on the facility's premises expressed any concern that Petitioner continued to perform her regular job duties. Clearly, no one was relying on the restrictions in the doctor's note. There was no evidence to suggest that Petitioner would ignore any resident's needs while she was pregnant or would try to protect herself more than any other employee at the facility did. As indicated, Petitioner was simply terminated. There was no consideration given to whether she could still perform her duties as she clearly could do. She was not offered any leave time or even allowed to request leave as mentioned in Section 8 of the Stakeholder Handbook. The abruptness of the termination when Petitioner could still perform her job duties and the failure to offer leave were discriminatory acts on the part of Bay against Petitioner based on her pregnancy. Around February 29, 2008, eight days after her termination, Petitioner called David Kendrick to ask him about receiving light-duty. He told her that light-duty was available only for employees injured on the job. This policy is neutral on its face and there was no evidence that demonstrated the restriction of light-duty work to employees who are injured on the job had a disparate impact on pregnant women. Petitioner told Mr. Kendrick that her doctor had raised her lifting restrictions to 50 pounds. However, the new restriction did not satisfy the corporate perception that she was too much of a risk and could not perform her required duties even though she met the minimum job qualifications and had been a good employee. In ignoring the fact that she was qualified to perform her duties, Mr. Kendrick's reasoning is further evidence of Respondent's earlier intent to discriminate against Petitioner based solely on her pregnancy. Mr. Kendrick also advised Petitioner that she could not obtain the disability insurance employee benefit because she had not been an employee for more than a year and had not elected to enroll in the coverage during the 90-day period from when she was hired. There was no evidence that demonstrated Bay's denial of disability insurance coverage to Petitioner was a discriminatory act since Petitioner, like all of Bay's employees, had been offered the insurance when she was hired, had not selected the insurance as a benefit within 90 days after her hire date, and could not make changes to her benefit plan until sometime in late 2008. On or about April 28, 2008, Ms. Mills filed a complaint with FCHR/EEOC alleging gender discrimination based on sex due to her pregnancy. In early May 2008, Ms. Mills suffered a miscarriage and lost her baby. Sometime around June 1, 2008, a few weeks after her miscarriage, Ms. Mills returned to Bay and met with Cathy Epps and Gayle Scarborough. She asked to be rehired since she was no longer pregnant. Both were aware of the Petitioner's pending EEOC/FCHR complaint. Ms. Scarborough told Petitioner that she could possibly be rehired if she dropped her EEOC claim. Later, Ms. Scarborough called Ms Guy and spoke with her about rehiring Petitioner. Ms. Guy asked David Kendrick, who inquired further in the corporation. Ms. Guy does not recall receiving a response to her inquiry. However, she later called Petitioner asking if she would display a negative attitude if she were rehired and asking if she had dropped her EEOC claim. Petitioner was so discouraged by the phone call that she did not pursue getting rehired further. Because she was not rehired by Bay, Petitioner was out of work for an extended period of time. She eventually was hired and has continued her employment with a variety of employers. She was and is required to travel some distance to maintain her employment at greater expense than if she were employed in Port St. Joe. Because she lives in Port St. Joe, she wants to be reinstated to her earlier position. Petitioner is entitled to reinstatement as a CNA and to back wages and benefits until she is reinstated, less any unemployment compensation, wages and benefits earned during said period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order requiring: Reinstatement of Petitioner's employment with Respondent with all seniority and benefits as if she had not been terminated; and Payment of lost wages to Petitioner from the date of termination to reinstatement less any unemployment compensation, wages and benefits she received during the same period. DONE AND ENTERED this 7th day of October, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 7th day of October, 2010. COPIES FURNISHED: Sandra Adams, Esquire Home Quality Management 2979 PGA Boulevard Palm Beach Gardens, Florida 33410 Ashley Nicole Richardson, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. 1709 Hermitage Boulevard, Suite 200 Tallahassee, Florida 32302 Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter." The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times. While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist. Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working. Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her. Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3 In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off. To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work. Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed. In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4 Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination. DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 3rd day of April, 2006.
The Issue The issue is whether Respondent has engaged in an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on his disability.
Findings Of Fact Petitioner has been employed as a correctional officer by Respondent at all times pertinent to this proceeding at Tomoka Correctional Institution (TCI) in Volusia County, Florida. The prison houses adult male inmates. Staff at TCI has the primary mission of providing for the public safety through the care, custody and control of the inmates housed in that facility. In early 1998, Petitioner was diagnosed with Non- Hodgkin's Lymphoma and began treatment for the disease. He was granted leave as needed for treatment and continued otherwise to work. Petitioner requested and was eventually granted the privilege of working a double shift only in those situations where he could take the next day off. In December of 2000, he requested that he be assigned to a perimeter post half of the time, and that he not be assigned to the chow hall or to guard sick inmates. Since Petitioner did not provide sufficient medical information to support the requested accommodation, it was denied. Respondent assigned Petitioner to be a "roving perimeter officer" on June 18, 2001. These officers observe the secure perimeter of the facility to ensure that no unauthorized entry into or out of the facility takes place. Each officer on this assignment is issued a shotgun, revolver and a motor vehicle. Each officer has a specific part of the perimeter fence to guard. Petitioner, as a result of medication he takes for his condition, experienced an urgent need to defecate, and left his post after calling for a replacement. As a consequence, Petitioner was thereafter assigned duty only where he would have immediate access to bathroom facilities. Petitioner provided documentation from his health care provider to Respondent indicating that Petitioner could work any post in the facility subject to certain qualifications. He should be given 16 hours' advance notice of the assignment to permit him to plan his medication schedule if he were assigned to the perimeter or other station where bathrooms were not readily available. Additionally, Petitioner was to be relieved within nine minutes of requesting a needed bathroom break. Petitioner also needed to have constant access to cold water and not be subjected to temperatures in excess of 90 degrees for more than an hour. As a result of his special needs, Petitioner remained assigned mainly to inside posts. He meets all requirements to work in the TCI observation towers, which have bathroom facilities and are climate controlled. He is assigned to such a tower one day per week. Respondent will not provide Petitioner 16 hours' notification of a future assignment so as to permit him to schedule his medication in such a way as to avoid urgent bathroom usage. Further, Respondent will not provide relief within nine minutes so that Petitioner can use the restrooms when necessary. Petitioner is generally assigned by Respondent to dormitory duty with the exception of tower duty one day per week. The dormitory is air-conditioned, but such assignment is stressful, fatiguing, and could adversely affect Petitioner's physical condition of lymphoma which is presently in remission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S 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 22nd day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Lawrence A. Lopenski 2482 Barbarossa Avenue Deltona, Florida 32524 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
