The Issue Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
Findings Of Fact At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time. Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990. Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination. Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination. Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law. An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter. By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back. Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside. When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990. At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations. On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date. The Petitioner testified that she did not return to work after October 24 because it was too painful for her to continue the work she had attempted. On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all. The October 26, 1990 letter sent by Ms. Battle provided in pertinent part: You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return. At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor. Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record. Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place. It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder. In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann. Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list. Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work. On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D) In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part: You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job. Your resignation is effective 12:01 a.m., November 2, 1990. Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990. Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990. DONE and ENTERED this 30th day of April, 1991, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 30th day of April, 1991.
The Issue Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?
Findings Of Fact The Petitioner began employment with the Respondent at its Lake City, Florida, plant during 1977 or 1978. The Respondent manufactures metal parts for automobiles. The Petitioner was employed by the Respondent as a parts assembly worker. At the time the Petitioner began employment with the Respondent, she informed the Respondent that she did not have any handicap. On June 28, 1984, the Petitioner was accidently struck on the head with a broom by another employee while at work. She was struck with the straw end of the broom. The Petitioner did not return to her job for approximately two months after being struck on the head. The Petitioner was treated by George G. Feussner, M.D. When Dr. Feussner authorized the Petitioner's return to work, he recommended that she not be required to perform any work requiring standing or leaning, climbing or operation of dangerous equipment for approximately three to four weeks. In September, 1985, the Petitioner experienced dizziness and fell while at work. In a letter dated October 2, 1985, Dr. Feussner informed the Respondent of the following: Despite and [sic] extensive evaluation of this lady, I cannot find objective findings to go along with her symptoms. I believe that she should be able to return to work at her regular job, but I still think that it would be dangerous considering her emotional dedication to her symptoms she is likely to injure herself if she works around dangerous equipment or at heights. She should therefore find a job that does not involve these activities... The Petitioner, when she tried to return to work, was not allowed to work because she had filed a workmen's compensation claim as a result of her alleged condition. This claim was being disputed by the Respondent's workmen compensation insurance carrier. On October 31, 1985, the Respondent laid off several employees with seniority equal to or greater than the Petitioner's seniority. Employees were laid off because of a lack of work. The Petitioner would have been laid off also, but was not because of the disputed claim over workmen's compensation. In November, 1985, the Petitioner's workmen compensation claim was denied. At that time the Petitioner was informed that she was also being laid off. In October, 1986, the Respondent began recalling the employees it had laid off in November, 1985. The Petitioner was not recalled, however, because of the restrictions on the Petitioner's ability to work. The Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Commission in October, 1986. On November 13, 1987, the Commission issued a Notice of Determination: No Cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order denying the Petitioner's Petition for Relief. DONE and ENTERED this 7th day of September, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988. COPIES FURNISHED: Ruby D. Johnson 1802 North Georgia Street Lake City, Florida 32055 William B. Hatfield Supervisor of Human Relations ITT Thompson Industries - Metal Division Post Office Box 928 Valdosta, Georgia 31603-0928 Donald A. Griffin Executive Director Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1025 =================================================================
The Issue The issue in this case is whether Petitioner was subjected to an unlawful employment practice, namely discrimination on the basis of age, with regard to Respondent's hiring of another applicant for the position sought by Petitioner. A secondary issue is whether Petitioner was constructively terminated from employment as a result of age discrimination.
Findings Of Fact Petitioner, Robert Jones, was born October 27, 1941. He was 52 years of age in March of 1994. Respondent is National Healthcare Center, a retirement home for elderly persons. Prior to March 28, 1994, the maintenance department at Respondent's facility consisted of one supervisory employee and one part-time employee, Jones. On March 28, 1994, Jones' immediate supervisor within the maintenance department resigned, effective April 8, 1994. In addition to his employment three days a week in the maintenance department, Jones also worked two days a week on the payroll of Respondent's facility in the housekeeping department. The administrator for Respondent's facility advertised the vacant maintenance supervisor position in the local newspaper. Approximately 35 applicants, including Petitioner, applied for the position. The administrator interviewed Petitioner and eight other applicants for the position, including the applicant who was eventually hired for the position. James French, the applicant hired for the position of maintenance supervisor, was serving as the head of maintenance at a 17 story, 163 unit condominium facility at the time of the interview. French supervised maintenance assistants at the condominium facility and was responsible for a wide array of maintenance services ranging from electrical, carpentry, plumbing, heating and air conditioning repairs to tests and maintenance of an emergency backup generator. The administrator, Steven Rykiel, was impressed by French and his eight years of maintenance experience. Rykiel was no novice in the hiring of personnel to run departments in facilities like Respondent's, having supervised the opening of a similar facility in Niceville, Florida where he hired department heads. Rykiel particularly liked French's expressed approach to performing maintenance: Fixing or repairing problems before the problems were pointed out by the boss. A comparison of French's candidacy for the maintenance supervisor position with Petitioner's reveals that French had recent experience in the supervision of maintenance personnel. While Petitioner had prior supervisory experience in other employment, he had not supervised employees since 1989. Rykiel followed his normal procedure in selecting the person to head the maintenance department at Respondent's facility. He reviewed the applications, interviewed the applicants, and checked the references of the one applicant who impressed him, James French. Ages of the respective applicants were not considered by Rykiel in his hiring decision. He was unaware of the age of either French or Petitioner at the time of their respective interviews. As previously noted, Petitioner was 52 years of age. French was 36 years of age. At the final hearing, Petitioner recanted his notarized statement in the Charge Of Discrimination dated July 18, 1994, which, in pertinent part, reads as follows: I trained the new supervisor and familiarized him with the inner workings of the nursing home until my resignation became effective on May 6, 1994. As explained by Petitioner at the final hearing, his sworn statement is technically untrue but he felt that he would be required to train the new supervisor and, consequently, decided to resign his position. Respondent's employee manual provides a procedure for employees to seek transfers and promotions. The manual does not set forth a directive requiring existing employees to be promoted over hiring a new employee. Specifically, the manual provides "[w]hen possible, a vacancy could be filled by a qualified employee of the health care center." Respondent does not have any policy that directs employment decisions be based on age of applicants. Rykiel did not hired French over Petitioner because of Petitioner's age. Petitioner was not told that he would have to train French. Consequently, there is no evidence to establish that such a directive placed Petitioner in intolerable working conditions. Although Petitioner has never failed, in the course of employment throughout his life, to obtain promotions sought by him, failure to obtain promotion in this instance does not constitute an intolerable working condition. Petitioner did not request a meeting with either Rykiel or any other higher superior in Respondent's organization, an opportunity provided by Respondent's procedures manual, prior to Petitioner's submittal of his voluntary resignation. Petitioner's resignation was submitted prior to French commencing employment with Respondent. Although Petitioner continued in Respondent's employment for a period of two days after French began work, Petitioner had little or no interaction with him. The hiring of French for the position of maintenance supervisor at Respondent's facility, as articulated by Respondent's personnel at the final hearing, was accomplished on the basis of legitimate, non-discriminatory reasons. French had more recent supervisory experience, experience in maintenance, and presented himself more dynamically in the course of the interview process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 8th day of November, 1995. DON W. DAVIS, 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 8th day of November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2. Accepted. Rejected, not materially dispositive. Rejected, subordinate to HO findings. 5.-6. Adopted by reference. Rejected, not materially dispositive. Rejected, relevance. Accepted. 10.-12. Rejected, not materially dispositive. 13. Rejected, Jones continued as the only maintenance person. No evidence suggests that he was ever permanently given the supervisor position. 14.-15. Accepted. 16.-25. Rejected, subordinate. 26. Accepted. 27.-34. Rejected, subordinate and not materially dispositive. 35. Rejected, relevance. 36.-38. Rejected, not materially dispositive. 39.-44. Rejected, subordinate to HO findings. 45.-53. Rejected, not materially dispositive. 54. Rejected, not supported by the weight of the evidence. 55.-57. Rejected, subordinate. Accepted. Rejected, mischaracterization of testimony, argumentative. 60.-63. Rejected, not materially dispositive. 64.-65. Rejected, relevance, weight of the evidence, mischaracterization of testimony. The budget increase reflected increased tasks being performed in house that were previously contracted. 66.-68. Rejected, not materially dispositive. 69. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-2. Accepted. 3. Rejected, relevance. 4.-19. Accepted, though not verbatim. COPIES FURNISHED: Jonathan S. Grout, Esq. Goldsmith & Grout, P.A. 307 W. Park Ave. Tallahassee, FL 32301 Cecile M. Scoon, Esq. 36 Oak Ave. Panama City, FL 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750 Dana Baird, Esquire Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750
The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Respondent operates a residential program for young, homeless women who are pregnant or have infants. Respondent is required by applicable state law to maintain minimum staffing requirements or expose its license to disciplinary action. Respondent employed Petitioner as a residential staff assistant (RSA) from sometime in August 2002 until February 2, 2004. Petitioner worked five days a week during shift hours that varied during her employment. As an RSA, Petitioner's duties included assisting residents with care for their babies, babysitting, assisting residents with meal planning and budgeting, writing staff notes for parent and child, driving residents to and from medical appointments, and otherwise "assist mother and child in anyway." With the exception of excessive absences discussed hereinafter, it is undisputed that Petitioner was able to perform the essential functions of her job and did so satisfactorily to Respondent. Sometime in May 2003, Petitioner suffered a back injury while riding a horse. Petitioner suffered a herniated disc located at L5-S1. After the injury, Petitioner experienced right-side pain and sought treatment initially from chiropractic therapy and acupuncture. However, Petitioner's symptoms persisted. Petitioner sought medical treatment sometime prior to July 2003. An MRI conducted on July 21, 2003, diagnosed the herniated disc, and Petitioner subsequently underwent surgery on September 11, 2003, identified in the record as a laminectomy. By a physician's note on a prescription pad dated October 29, 2003, the treating physician authorized Petitioner to return to work on November 2, 2003. The physician's note did not prescribe any limitations for Petitioner. Petitioner returned to work on the prescribed date. On November 10, 2003, a director for Respondent required Petitioner and a co-worker to close the security gate to the facility. The electric motor for the gate was not functioning, and the two co-workers had to close a heavy security gate by manually pulling until the facility was secure. By a physician's note on a prescription pad dated November 14, 2003, the treating physician prescribed "light duty" for Petitioner. The light-duty restrictions were limited to "no pulling." A preponderance of evidence does not support a finding that Respondent required Petitioner to perform any "pulling" after November 10, 2003. Petitioner's back condition is an impairment within the meaning of the Americans with Disabilities Act, 42 U.S.C. Section 12112, et seq. (ADA), and the Florida Civil Rights Act, Chapter 760, et seq., Florida Statutes (2003) (FCRA). After surgery, Petitioner continued to experience pain in her right side and, due to inactivity, gained approximately 100 pounds. Petitioner's resulting impairment has limited her ability to work by impairing her ability to sit for long periods, pull, lift, bend to retrieve files from lower file drawers, and drive. Petitioner's impairment is permanent. The surgery did not eliminate Petitioner's impairment, and Petitioner is relegated to physical therapy and pain medication as the sole medical treatment for her condition. After more than two years of such treatment, Petitioner's impairment persists. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. Disputed requests for accommodations in the form of a particular chair that was comfortable for Petitioner and in the form of the location of files in higher drawers for easier access by Petitioner were not necessary for Petitioner to perform the essential functions of her job. It is undisputed that Petitioner satisfactorily performed her job duties without those accommodations. Petitioner's impairment caused her to be absent from work six of 20 workdays between November 2 and 30, 2003, and nine of 52 workdays between December 4, 2003, and February 2, 2004. The first six absences were excessive pursuant to Respondent's written Policy HR 103. In addition, Petitioner did not provide a supervisor with prior notice or cause of absences. However, each absence was required for Petitioner to either attend physical therapy or for Petitioner to recover from physical therapy. After the first absence, Respondent knew the causes of the absences. On December 3, 2003, Petitioner and Respondent executed a Corrective Action Plan (CAP) in which Petitioner agreed there would be no further unscheduled absences. Respondent agreed to reduce the time required in HR 103 for prior notice from eight to six hours. After executing the CAP, Petitioner had nine unscheduled absences during approximately 52 workdays between December 3, 2003, and February 2, 2004. Petitioner was unable to call in to her supervisors because of problems with telephones and voicemails, including those at the facility and cellular telephones maintained by supervisors. However, Petitioner knew of the telephone problem and knew her therapy schedule. A preponderance of evidence does not support a finding that Petitioner requested Respondent either to utilize an alternative method of communication or to arrange her work schedule to accommodate Petitioner's therapy schedule. On January 30, 2003, Respondent notified Petitioner that Respondent was changing Petitioner's employment status to "on-call" because Petitioner was unable to satisfy the attendance requirements of an RSA. Petitioner refused to accept the change in status due to the uncertainties of pay and the loss of benefits. On February 2, 2004, Respondent terminated Petitioner from her employment. Petitioner's impairment is neither a "disability" nor a "handicap" within the meaning of the ADA and FCRA, respectively. The impairment did not substantially limit Petitioner's ability to perform the major life activity of working. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. A preponderance of evidence does not support a finding that Petitioner's impairment precludes her from either a class of jobs or a broad range of jobs. Petitioner showed that she has made a reasonable effort to secure other employment without success. However, a preponderance of evidence does not support a finding that Petitioner's impairment is the cause of her inability to obtain employment. The Social Security Administration denied Petitioner's disability claim. The agency found that Petitioner has received treatment for her impairment and that the impairment does affect her ability to work. However, the agency found that Petitioner is "still capable of performing" the duties of an RSA.
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 discriminate against Petitioner on the basis of a disability or handicap. DONE AND ENTERED this 31st of January, 2006, 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 31st day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Phyllis J. Towzey, Esquire Law Office of Phyllis J. Towzey, P.A. The Kress Building, Suite 401 475 Central Avenue St. Petersburg, Florida 33701 Theresa A. Deeb, Esquire Deeb & Brainard, P.A. 5999 Central Avenue, Suite 202 St. Petersburg, Florida 33710
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice as envisioned in Section 760.10, Florida Statutes (2005), on the basis of the Petitioner's disability or handicap, and his age. It must also be determined whether the Respondent committed retaliation against the Petitioner for the Petitioner's alleged exercise of statutorily protected rights in complaining about health, or safety concerns, regarding his operation of a machine or device while an employee of the Respondent.
Findings Of Fact Jimmy D. Forehand was hired by the Department of Management Services or its predecessor on January 21, 1977. He was employed at that Agency for approximately 27 and one-half years through June 30, 2004. For the last 19 years of his tenure he was classed as an electrician. This is the entry level electrician trade position and has fewer complex duties and skills required for its performance, as opposed to the more complex position of master electrician, in terms of working with complex wiring, wiring problems, electrical devices, and so forth associated with that latter position. It has been stipulated that through his termination date of June 30, 2004, Mr. Forehand, was qualified to perform the duties and functions of his job. The Respondent is an Agency of the State of Florida charged with managing all state government agency resources, services, properties, benefits, and procurement. It manages state-owned facilities, handles state human resources or personnel matters, employee benefit matters, as well as procurement of such things as office space and office supplies. It maintains the physical integrity of all state-owned properties. The Petitioner was employed for the Respondent by the Division of Facilities Management and Building Construction (Division of Facilities) which is responsible for managing and maintaining office complexes and other properties owned by the state. The Petitioner specifically worked for the electrician unit of that Division. The Disability Claim The Petitioner experienced several purported medical conditions which resulted in workers' compensation claims during his tenure as an employee. The ones relevant to this case commenced in approximately 1992. In 1992 the Petitioner was engaged in a repair work assignment at a DMS-administered office building in downtown Tallahassee. He allegedly became exposed to asbestos during that job. The Petitioner and the employer, DMS, initiated a First Report of Injury and a workers' compensation claim ensued regarding the asbestos incident. The progress of that workers' compensation claim and its disposition are not relevant to this case, aside from the diagnosis concerning that claim as a part of the predicate for showing a disability for purposes of the case at bar. In any event, in 1992, the Petitioner was diagnosed by a physician with asbestosis. Because of that diagnosis, through the workers' compensation process, the employer and carrier have authorized the Petitioner, in all the years since, to have an annual medical examination and chest X-ray under the auspices of the Division of Workers' Compensation, Department of Financial Services. This is for the purpose of monitoring the status of the asbestosis. The Respondent has stipulated that it was aware of the diagnosis of asbestosis. It does not agree that the asbestosis constitutes a disability for purposes of Chapter 760, Florida Statutes (i.e. handicap). The Petitioner was released from the physician with regard to the asbestosis situation without work limitations or restrictions due to that diagnosis. Sometime in 1999 the Petitioner injured his left knee on the job, apparently a severe sprain. A workers' compensation notice of injury was filed and a workers' compensation claim process ensued whereby he received treatment for his knee problem. When he reached maximum medical improvement he returned to work with a light duty recommendation from his treating physician, on a temporary basis. In fact, the Respondent accorded him a temporary light duty assignment after he returned to work from the knee injury. The Respondent, through the Petitioner's supervisors, particularly Joe Jacobson, generally made an effort to try to find the Petitioner a light duty assignment when he returned from illness or injury, based upon a doctor's recommendation and/or the Petitioner's own request for light duty. His supervisor, Mr. Jacobson, would customarily call other building managers, the "OP/CON Center" and other agencies in an effort to find a light duty post Mr. Forehand could perform in until he was ready for the full duties of his regular position. Thus, on several occasions Mr. Forehand was placed in light duty as a janitor or answering phones. It was not always possible to find temporary light duty for Mr. Forehand when he requested it or when a doctor recommended it. Apparently Mr. Forehand was on leave without pay for a number of months on at least one occasion when no light duty was available for him. In this connection, however, the Respondent, throughout Mr. Forehand's tenure as an employee or at least since his 1992 asbestosis diagnosis, has shown a penchant for allowing Mr. Forehand to occupy and perform his duties in his regular position of electrician by working at his own pace, without regard to any time limit for performing his duties, without prohibition on his taking frequent rest breaks, and with tolerance for his late arrival at work, if tardiness was related to his physical condition. Thus, in a defacto fashion, the Respondent accommodated what it knew of Mr. Forehand's impairments, as he related them to the Respondent, or as they learned of them from reports from his physicians and from the workers' compensation process (i.e., breathing difficulties and to some extent left knee impairment after 1999). In any event, the preponderant evidence establishes that when the Petitioner requested light duty and/or his physician recommended it, the Respondent would provide him with light duty if it was available, although it was not always available. It accommodated what it knew of his impairments when he worked in his regular position, performing his regular duties, by the means described above; even though the Petitioner did not for the most part request rest periods, frequent breaks from his duties, additional time to complete his assignments, or for permission to trade assignments with another worker who might have a less physically taxing job. In fact, when the matter of his physical difficulties came up, or was raised by the Petitioner in a conversation with his supervisor on at least one occasion, his supervisor told him in effect to "do the best you can." The implication thus clearly was that if the Petitioner needed rest breaks, needed additional time to do assignments, that the Respondent would accommodate him by not holding him to a strict standard as to when his job duties got performed. Since approximately the year 2000 or the fiscal year 2000-2001 the Respondent, like other state agencies, have been under a mandate from the Legislature and the Office of the Governor to save on costs and to become more efficient in its operations. One of the primary means of accomplishing this has been to require a reduction in the Agency's workforce. The Respondent has thus experienced a loss of employment positions since that fiscal year in each budget year and session of the Legislature. It has thus lost approximately 635 full-time positions over a four-year period ending with the 2005 Legislature and Appropriations Act. In fiscal year 2000-2001, the Petitioner's position was identified by the year 2000 Florida Legislature to be eliminated, by making it "non-recurring," such that his position would be cut or eliminated effective July 1, 2001. The Respondent's supervisors did not want him to be laid off. Therefore, they avoided his lay-off in that fiscal year by re- classifying him or his position into a vacant position within the Division of Facilities. They made the decision to retain him even with knowledge of his past workers' compensation claims, his asbestosis diagnosis and his knee injury of 1999 with related occasional light duty and time off from work. When the 2000 Legislature identified his position as being one which would be non-recurring or deleted after July 1, 2001, the Respondent held a meeting with the Petitioner and all other employees whose positions had been deemed non-critical and subject to deletion in the job force reduction. What had occurred was explained and their options and procedures to remain employed or become re-employed were explained. Because his supervisors wanted to save him from lay-off, and re- classified a different position to place him in, he was protected when the 2001 Legislature carried through with its previous year alteration of his position to non-recurring funding by withdrawing all funding and rate supporting his original position. In continuation of its mandate to reduce the work force, the 2003 Legislature made 20 positions non-recurring, including the Petitioner's. This meant that the funding was determined to be non-recurring, meaning that the positions would be funded one more year, but at the end of the fiscal year, on June 30, 2004, these positions would no longer be funded and would be abolished. In the Governor's and agency's budget preparation process thereafter, in 2003 and early 2004, the Legislatively- mandated reduction of 20 positions was incorporated. The Agency, however, in late 2003 or early 2004, arrived at the conclusion that it needed 15 of those 20 positions to be re- classified as critical positions necessary to its mission. Therefore, in the Legislative budget-making process, beginning in February and early March 2004, it sought to convince the Legislature's Appropriations staff and members that 15 of the positions were critical. It was successful in doing that during the Legislative session. The Petitioner's position was not re-established as a recurring, critical position. This was because his position had previously been determined to be non-critical in the 2000-2001 fiscal year, and, since his job duties and responsibilities had not changed since that time, his position was again deemed to be no longer critical to continued division operation. It was determined by the Respondent that the functions of his position could be performed by including them in the duties of other positions, to be performed by persons who qualified for and occupied those positions (such as master electricians). Although Mr. Jacobson, his supervisor, wanted to find a vacant position to place the Petitioner in as he had done in the 2000-2001 fiscal year job force reduction, there were no vacant positions available in which to place the Petitioner. Mr. Jacobson's testimony establishes this, as does that of Clint Sibille and Cherri Linn (Mr. Jacobson's supervisors). The fact that Mr. Jacobson had a desire to try to find a way to retain the Petitioner is somewhat corroborated by the statement or message from Ms. Linn to Mr. Jacobson to the effect that "you can't save him this time." This meant that, unlike the situation in 2000-2001, there were no vacant positions which could be converted to a position in which to place the Petitioner. Moreover, the testimony of the supervisory lead worker, Bill Kerr, corroborated that of Joe Jacobson and Clint Sibille that there were no vacant positions to place the Petitioner in or to convert to a position suitable for his qualifications. Their testimony shows that the Petitioner's position was not a critical one in the division, especially because it did not involve duties concerned with intricate electrical wiring, wiring repairs, working on complex electrical devices and other complex electrical work. This testimony established that it made no sense to convert a master electrician position into one which met Mr. Forehand's lesser qualifications because a qualified person in a master electrician position, can perform the Petitioner's duties and many more duties in terms of complexity and critical importance than can a person with the Petitioner's lesser qualifications in an entry-level electrician position. Mr. Forehand is not a licensed electrician. The Respondent thus determined that there were no positions which were vacant and sufficiently less critical to its operation as to justify it in converting such to one which met the Petitioner's qualifications (in a managerial context). The Petitioner was not told of his lay-off until June 14, 2004. In fact, Mr. Jacobson, his supervisor, did not know that it was certain to occur until immediately before Mr. Forehand was told, several days before at the most. Clint Sibille had told Mr. Jacobson before the Legislative session convened that Mr. Forehand's position might be eliminated but he was not certain at that time (approximately in December 2003 or January 2004). It is not clear which supervisor or manager made the initial decision that the Petitioner's position was not critical. It apparently was the recommendation of Clint Sibille, in concert with Cherri Linn, and with the final approval of the Division Director, then LeeAnn Korst. Mr. Jacobson, the Petitioner's immediate supervisor, did not request that his position be deleted. During most of 2003, the Petitioner's job duties included operation of a florescent bulb or lamp crushing system. This was a device known as a VRS Bulb Crusher also known as the "bulb eater." It had apparently been purchased by the Agency sometime in 2002. The device consists of a large drum with a vertical tube through which burned-out florescent light bulbs are inserted so that they fall into the large drum where a mechanical device is operated which crushes the bulbs for disposal. The Petitioner performed a large portion of the bulb crusher's operation. This was particularly true during early 2004, when the Petitioner used the machine at a more intense level. Sometime in February 2004, the exhaust or filtration system of the machine sustained damage, or a break, so that dust and particulate matter and any gaseous or chemical contents of the broken bulbs had the opportunity to leak out of the area of the break into the ambient air. A temporary repair was made and a permanent replacement part was ordered from the manufacturer. The machine continued to malfunction, however, and the repair did not hold. The Petitioner complained to Bill Kerr, his lead worker, concerning the dust and particulate matter the machine apparently sprayed into the air. He also complained to his supervisor, Joe Jacobson. The Petitioner stated that he believed that the dust and particulate matter and other unknown contents of the broken florescent bulbs might aggravate the breathing problems he professed to have, which he related to his original asbestosis diagnosis. These complaints began in early March 2004. The Petitioner also complained to Dave Wiggins, the Respondent's Environmental Supervisor in March of 2004. When the complaints were made and the temporary repair was not successful, the Respondent stopped all use of the bulb machine in early March 2004. This was contemporaneous with the time or occasion when the Petitioner refused to use the machine any longer. The complaints about the bulb crushing machine were reported up the "chain of command" so that on March 16, 2004, Glen Abbott, the Employee Relations Specialist of the Bureau of Personnel Management Services, made a written "medical report" (according to the Petitioner's testimony) concerning the Petitioner's reported exposure to "poisonous chemicals" in the fluorescent bulbs being crushed through operation of the machine. This report was apparently required for workers' compensation purposes. The Petitioner also told Clint Sibille, Mr. Jacobson's supervisor, of the machine's purported malfunction. Mr. Sibille asked Dave Wiggins, the Environmental Specialist, to investigate the machine to determine if the machine was malfunctioning or if the problem reported by the Petitioner was caused by operator error. Mr. Wiggins and Joe Jacobson, after investigating the matter, believed it to be caused by operator error in the manner in which the bulbs were inserted into the vertical tube of the machine. The Petitioner maintains that he asked Clint Sibille to send him to a doctor concerning his fears of heath problems related to the machine and states that Clint Sibille told him to "see his own doctor." Mr. Sibille did confer with Cherri Linn about the Petitioner's request and Cherri Linn informed him that the Petitioner would have to engage in the workers' compensation report and claim process in order to see a doctor concerning his health-related fears about the bulb crushing machine. Mr. Sibille then told the Petitioner's supervisor Joe Jacobson to tell the Petitioner of this. Thereafter, at some point during the period of March through June 2004, after the Petitioner reported his complaints concerning the use of the bulb crusher, Glenn Abbott told all the electricians and carpenters who had worked with the machine to obtain medical examinations under the normal workers' compensation procedure, to try to ascertain if there are any deleterious effects caused by these persons' operation of the machine. Sometime in early May of 2004, the Petitioner called the Department of Environmental Protection (DEP) and spoke to someone there and made a verbal report of his belief concerning unsafe conditions regarding operation of the bulb crushing machine. After the Petitioner left employment with the Respondent Agency in July of 2004, the machine and the warehouse space where it was located was examined by a representative of the DEP and samples were taken, in an effort to ascertain if any hazardous materials had been produced by the machine or were present in that working area. On May 18, 2004, the Petitioner re-injured the same knee which he had injured in 1999. A Notice of Injury concerning this knee injury was filed to trigger the workers' compensation process and the Petitioner saw a doctor through the workers' compensation procedure who examined and treated his knee problem (severe sprain). He was off work for a few days and then was sent back to work by the physician with a prescription of "light duty." He thus became available for work with light duty, at the doctor's recommendation, on or about June 1, 2004. At about this time he told his lead worker Bill Kerr, of his blood clot and showed him the doctor's report concerning leg swelling. He also informed Joe Jacobson of this. He sought light duty and indeed Joe Jacobson made substantial efforts to find light duty available for him by calling the various building managers and the "opcon" center to see if any light duty was available. Mr. Jacobson went so far as to try to ascertain if there were any office filing duties that the Petitioner could perform. He was unable to locate any light duty work for the Petitioner at this time. Joe Jacobson took annual leave in early June and while he was on annual leave, he received a call from his employer, (apparently Cherri Linn) around June 10th or 11, 2004, requiring him to come back to work because the job force reduction lay-off was going to be imposed on the Petitioner and his presence as his supervisor was apparently needed. On June 11, 2004, the Petitioner was called and told to report to work on Monday morning, June 14, 2004. On Monday the Petitioner was called in to a meeting with Joe Jacobson and Tim Carlisle and told of his lay-off. He was immediately required by the Department's Inspector General, Tim Carlisle, to take boxes and pack up his belongings and to leave the premises. Carlisle helped him pack his belongings and ushered him off the Respondent's premises. The Petitioner maintains that he did not know of his lay-off until that same day, which happened to be his fifty-fifth birthday. He was placed on leave with pay until June 30, 2004, his actual termination date. In July of 2004, apparently on or about July 2, 2004, he filed a formal written complaint to the Chief Inspector General regarding his concerns and feared health consequences of the operation of the bulb crushing machine. On or about July 20, 2004, Mr. Forehand visited a walk-in medical facility because he contends he was experiencing shortness of breath, chest pains, and tightness in his chest. He attributed these symptoms to use of the bulb crusher back in March and earlier. He testified that he was diagnosed with silicosis and that he physician determined that he could not tolerate walking 30 to 60 minutes at a time or lifting more than 15 or 20 pounds. Neither this physician nor any other testified, nor was non-hearing medical information admitted into evidence in this regard. Interestingly, Mr. Forehand's testimony indicates he was diagnosed with a heart condition, apparently based on these symptoms, and in late 2004 underwent insertion of an arterial stint. The Petitioner thus complained to his supervisors beginning in about early March 2004, concerning the fears he had about the results of the machine operations. He complained verbally to DEP in early May of 2004, but made no written formal complaint, to any agency or person, until after his termination in July 2004. The Petitioner was not asked to participate in an investigation, hearing or inquiry concerning the operation of the bulb crushing machine and made no written complaint to any supervisory officials of the Respondent, who could then themselves submit a complaint to the Inspector General or to the Human Relations Commission. In fact, in his own testimony the Petitioner admits that he made a written complaint in July of 2004. In an apparent effort to show that the Respondent's proffered non-discriminatory reason for his termination was pretextual, the Petitioner advanced testimony from a number of witnesses, including himself, which he maintains shows a pattern and practice by the Respondent of retaliating against, and, if necessary, effectively firing older, disabled employees or employees who complain of safety hazards. In this regard, of the five positions selected to be eliminated in the job force reduction of 2004, four had incumbents when the decision was made. All four of those incumbents were over 40 years of age. Two of those four positions, however, became vacant before they were eliminated by the job force reduction. Ms. Ashraf Achtchi was fired by the Respondent before her position became officially eliminated in the job force reduction and Preston Booth voluntarily resigned from his position for unknown reasons. Ms. Achtchi testified to the general effect that she felt she had been discriminated against because of being ill and under medical treatment, yet she was still singled out (in her view) for being absent or tardy. Although the record may establish that she is over 40 years of age, there is no persuasive evidence that she suffered from a legally cognizable disability as that condition or term is defined below, even if she was under a doctor's care, was ill, and had frequent tardiness or absentness due to illness or a doctor's visit during her employment tenure. In any event, other than her own subjective opinion and Mr. Forehand's speculations based upon hearsay, there is no persuasive, competent evidence to show that she was terminated for any reasons based upon an unproven disability, her age or due to any retaliation regarding any protected status within the purview of Chapter 760, Florida Statutes. The Petitioner maintains that both he and Mr. Feizi were over 40 and disabled. Whether or not the Petitioner established proof of disability will be dealt with in the conclusions of law below. Mr. Feizi apparently suffered from a disease of the nervous system (AMS) and was confined to a wheel chair much of the time. It may thus be inferred that, for purposes of the legal elements of disability referenced below, that Mr. Feizi was disabled. Other than his subjective opinion and Mr. Forehand's subjective testimonial speculation, based upon hearsay, however, there is no competent, persuasive evidence concerning the reasons Mr. Feizi was terminated, other than that his position was simply eliminated through a job force reduction in the manner described in the above findings of fact. There is no persuasive, credible evidence to show that he was dismissed from employment based upon his age or due to his disability or as retaliation, nor was that proven with regard to Ms Achtchi. Other employees testified concerning alleged retaliatory conduct on the part of the Respondent. Sid Palladino and John Corbin opined that they had been retaliated against for making safety complaints of various kinds, as well as for testifying on behalf of the Petitioner in this proceeding. Ralph Cleaver testified that he left the Department to work for the Department of Agriculture because he had filed a "whistle blower" claim and that the Respondent, in his view, would use retaliation for his taking such an action. Barry McDaniel was 60 years old when hired and, abruptly soon thereafter, was asked to resign, according to his testimony, without any given reason. He testified that Mr. Sibille had him read a book purportedly advocating hard work and the hiring of young workers. The book was entitled "The Go Getter." According to Mr. McDaniel's testimony, the book was required to be read by all employees under Mr. Sibille's supervision. There was no evidence, however, that although Mr. McDaniel was asked to resign, that any other employee was so treated. The book was not in evidence and the undersigned has only Mr. McDaniel's subjective testimony concerning his thoughts regarding the theme and content of the book, in relation to his subjective belief that his age was the reason he was asked to resign. He testified that his immediate superior, who was also 60 years of age, was "gone" shortly thereafter. There is no evidence of any circumstances or facts concerning why Mr. McDaniel or his supervisor were actually asked to resign or in the case of his supervisor, may have voluntarily resigned. There are insufficient facts and circumstances established by the evidence to show any discriminatory motive related to age or otherwise with regard to the terminations of either of these men. Sid Palladino testified that he was reprimanded for not wearing his uniform and that other employees were not reprimanded when they had not worn uniforms either. He also testified that he felt he was retaliated against for making safety complaints as well as for testifying in support of the Petitioner in this proceeding. In fact, his reprimand was rescinded shortly after it was given him when it was learned that he had not worn his uniform or worn it properly because the uniform supplied him did not fit. Additionally, other than their anecdotal comments in their testimony, there is no persuasive evidence that Mr. Palladino or Mr. Corbin were retaliated against for complaining of safety issues and the same is true of Ralph Cleaver opining that he was about to be retaliated against for being a whistle blower, and Barry McDaniel as well. There is simply no definitive, credible proof, other than these employees' own subjective opinions, upon which to base a finding that there was any pattern and practice of retaliation against employees for complaining about safety hazards, for supporting other employees' discrimination claims, for making whistle blower claims, for being disabled or on account of their age, which could be persuasively probative of the discrimination and retaliation claims of the Petitioner.1/ In this connection, it is also found that there are a number of remaining employees in the Petitioner's division, who were his age or older. Indeed, Mr. Robert Smith had retired and then was later re-hired by the Department and the Division after suffering at least one episode of injury and medically prescribed light duty. Likewise, there are an unknown number of disabled or physically impaired persons remaining employed by the Department, after the dates and circumstances occurred with regard to the Petitioner's discriminatory claims. At least two of them testified in this proceeding. These facts belie the existence of a systematic policy or practice of eliminating employees over age 40 or of Mr. Forehand's age or older, or those who might be disabled or suffering from physical or medical impairments.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S 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 29th day of August, 2006.
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of March, 1985.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 26, 2011.
Findings Of Fact Petitioner, Teresa Urbana, began employment with Sanmar Corporation (Sanmar) in August 2008 as a seasonal employee and worked there until November 2008. She was rehired in July 2009 in a Re-stocker position. She was promoted to Order Processor and was made a full-time regular employee later that year. Sanmar is a distributor of promotional apparel and accessories to companies that sell promotional apparel. The Jacksonville location is one of seven distribution centers (DC) throughout the country. The Jacksonville DC fulfills customer orders by receiving, picking, checking, packing and shipping them. Respondent is an employer as contemplated by chapter 760, Florida Statutes. An Order Processor is responsible for picking and checking the order, and then packing the order for distribution to Sanmar's customers. The position description for Order Processor includes the following: PHYSICAL DEMANDS: While performing the duties of this job, the employee is constantly required to walk and stand. The employee is frequently required to reach with hands and arms, handle or feel product, to pull/push cart with product, grasp and perform repetitive hand, wrist and arm motions. The employee is frequently required to climb, kneel/squat, bend and carry. The employee occasionally lifts and/or moves up to 40 pounds, and seldom lifts and/or moves up to 50 pounds. Specific vision abilities required by this job include close vision, color vision, peripheral vision, depth perception and ability to adjust focus. WORK ENVIRONMENT: Work environment is moderately noisy. The employee is occasionally required to work near conveyor systems. There is exposure to dust and changes in weather conditions. Employee must be able to handle stress that is involved in meeting strenuous customer deadlines, working in high volume areas, and be flexible and able to interact with employees at all times. Paul Rhodes is the Distribution Manager and Alice Torres is Human Resources Manager for Sanmar's Jacksonville DC. Ms. Torres reports to Olivia Thurmond, Senior Manager of Human Resources. Ms. Thurmond is in the corporate headquarters for Sanmar, which is located in Issaquah, Washington. Sanmar's Employee Handbook includes an Equal Employment Opportunity Policy, an Anti-Harassment and Non-Discrimination Policy, and a Reasonable Accommodation Policy. Petitioner received a copy of the Employee Handbook. Allegations Related to Disability On April 21, 2011, Petitioner approached Ms. Torres to inform her of pain Petitioner was having in her wrists and hands. Petitioner informed Ms. Torres that she believed that this condition was work-related. With the help of Ms. Torres' assistant, Yadira Batlle, Petitioner completed an Accident/Incident Report. Ms. Batlle actually completed the form based on information provided by Petitioner, because Petitioner is not fluent in English, as her primary language is Spanish. The Accident/Incident Report was signed by Petitioner and references carpel-tunnel in both hands as the description of the injury. On that same day, Sanmar provided Petitioner with contact information for Solantic Baptist Occupational Health (Solantic) so she could receive evaluation and treatment for her injury which Petitioner claimed was work related. While there was some dispute as to whether Petitioner's condition was work related and covered by workers' compensation, it is undisputed that Sanmar reported the injury to its workers' compensation carrier and Petitioner did receive benefits and medical treatment through workers' compensation. On April 22, 2011, Petitioner was evaluated at Solantic. As a result of her evaluation, Petitioner was released to return to work with a work restriction of wearing wrist braces. Petitioner continued to perform her Order Processor job duties wearing wrist braces. Petitioner also was evaluated by her personal physician, Dr. Esquivia-Munoz, who provided a note dated June 1, 2011, which stated as follows: This patient has bilateral moderate carpal tunnell [sic] syndrome worse at right wrist, which is interfering with her regular duties and regular activities for which she will need surgical decompression in the future. When Ms. Torres received this doctor's note, she explained to Petitioner that the note did not include any specifics as to any work restrictions. As a result, Ms. Torres advised Petitioner she could not allow her to return to work until the company received work restrictions from her doctor. Therefore, Sanmar placed Petitioner on a leave of absence under the Family and Medical Leave Act (FMLA). On June 2, 2012, Ms. Torres sent a fax to Dr. Esquivia-Munoz with a request that he complete an attached certification of Petitioner's health condition. He completed the form, but the information he provided essentially repeated what he wrote on the June 2, 2011, note, and did not provide specific working restrictions which Sanmar requested and needed to be able to provide appropriate and safe working restrictions for Petitioner. Ms. Torres forwarded these documents to Christy Hammond, Sanmar's Leave Supervisor, who is located in the Washington office. On June 3, 2012, Lori Shutter, Sanmar's Benefits Manager, faxed a request to Dr. Esquivia-Munoz, requesting that he complete an enclosed "release to return to work" form identifying work restrictions. She also attached a position description for the Order Processor position. Sanmar did not receive a completed form or further specific work restrictions from Dr. Esquivia-Munoz despite this request. Petitioner went back to Concentra, the workers' compensation medical provider, for further evaluation. Concentra identified her activity status as "modified activity" and identified her work restrictions as no pushing, pulling or lifting over zero pounds, and referred her to a hand surgeon. The facsimile shows that this information was faxed to Sanmar on June 13, 2011. Ms. Torres forwarded this information to Ms. Hammond in the corporate office, and discussed it with Mr. Rhodes. The Order Processor position involved frequent reaching, pushing, grasping, and performing repetitive hand motions. Pushing, pulling, and lifting are essential functions of the Order Processor job. Accordingly, the work restrictions received from Concentra prevented Petitioner from performing essential functions of the job of Order Processor, with or without reasonable accommodations. Sanmar found light-duty work that Petitioner could do within the work restrictions as set forth by Concentra. She was assigned to do "go-backs," which is part of the order processing job, but not the entire job. Go-backs are items, such as hats or t-shirts, found in the wrong bins. The go-back work required Petitioner to use a computer to find the product's correct location, write down that location, and carry the product to the correct location. There is no regular go-back position at Sanmar. This was a temporary assignment created to accommodate Petitioner by eliminating many of the regular functions of the Order Processor position, including pushing, pulling, picking, and packing items to fill customer orders. On June 13, 2011, Ms. Torres called Petitioner to advise her that Sanmar had light-duty work within Petitioner's work restrictions. Petitioner returned to work on June 15, 2011, performing go-backs at her regular rate of pay, i.e., as when she could perform all functions of the Order Processor position. On June 17, 2011, Petitioner submitted a Leave of Absence Request Form, requesting to commence leave on June 20, 2011. Ms. Torres then provided a Notice of Eligibility and Rights and Responsibilities for leave under FMLA to her. This document notified Petitioner that she was eligible to receive FMLA leave, and further notified her that she needed to provide sufficient certification to support her request for FMLA leave by July 1, 2011. On June 20, 2011, Petitioner clocked in at work at approximately 12:24 p.m., after an appointment with Petitioner's hand specialist, Dr. Greider. Petitioner immediately went to the Human Resources office and provided a note from Dr. Greider which confirmed that she had an appointment with him that morning, and left his office at 11:30. Petitioner also provided a doctor's note from Dr. Greider detailing Petitioner's work restrictions. She gave the note to Ms. Batlle, because Ms. Torres was out of the office at that time. The note reads as follows: LIGHT DUTY WORK RESTRICTIONS No repetitive gripping and pinching. No repetitive pulling and pushing. No lifting greater than 5 pounds. No production keying (until further notice) Frequent rest breaks- 5 minutes per hour. Effective until pending surgery. Ms. Batlle left copies of these doctor's notes for Ms. Torres, along with a handwritten note stating that Petitioner was going home for the day. Ms. Thurmond happened to be visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes, along with Ms. Hammond by telephone, discussed Petitioner's new work restrictions and concluded that, because processing go- backs required keyboarding, gripping and pinching, Petitioner could no longer perform that light-duty work.2/ Accordingly, Sanmar approved Petitioner's request for FMLA leave. Beginning June 21, 2011, Petitioner began taking the FMLA leave she had requested. During this leave, Petitioner had surgery on her right hand on July 21, 2011. Petitioner remained on FMLA leave until September 13, 2011, at which point she had exhausted her FMLA leave entitlement and had still not been released to work. Rather than terminating Petitioner's employment at that time, Sanmar provided additional leave until the company was able to determine whether Petitioner would be able to return to work. Sanmar provided Petitioner an FMLA Designation Notice which informed her that her absence from September 14 through September 25 would be provided to her "as a reasonable accommodation under the Americans with Disability Act (ADA)." On September 16, 2011, Ms. Hammond prepared a letter to Dr. Greider outlining the modified work description in doing go-backs, and asking him to advise whether or not she would be able to perform those duties. Dr. Greider faxed a reply to Ms. Hammond on September 20, 2011, advising that the activities described in Ms. Hammond's letter would be acceptable. Ms. Torres and Ms. Hammond prepared a letter to Petitioner dated September 22, 2011, advising her that Sanmar had received a written confirmation from Dr. Greider that she had been approved to return to work with the modified duties (performing go-backs). The letter further notified Petitioner that she was expected to return to work on September 26, 2011, which she did. Ms. Torres did not receive any complaints from Petitioner during the September to November timeframe regarding her ability to perform the go-backs duty. On November 2, 2011, Petitioner provided Ms. Torres with a note from Dr. Grieder confirming Petitioner would be out of work for surgery on her left hand from November 7 through 10, 2011. The note states the following: Patient is scheduled for hand surgery on 11/7/11 and may remain out of work from date of surgery until 11/10/11 at which point patient may return to work with no use of the left hand until follow up appointment on 11/21/11. Ms. Torres and Petitioner had a discussion regarding Dr. Greider's note during which Petitioner expressed doubt that she would be able to return to work November 10 as she still had restrictions on the use of her right hand and did not know what kind of work she would be able to perform after surgery on her left hand. Ms. Torres than contacted Ms. Hammond via e-mail requesting her assistance in confirming the work restrictions, if any, on Petitioner's use of her right hand. On November 8, 2011, Ms. Hammond, through the company's workers' compensation carrier, received confirmation from Dr. Greider's office that she was released from work restrictions with regard to her right hand as of October 17, 2011.3/ On November 9 and 10, Petitioner left voice mail messages for Ms. Torres and her assistant regarding her inability to work. On November 11, 2011, Petitioner did not report to work. Because this was the date that had been indicated by Dr. Greider as the date she was released to return to work (regarding her right hand), and after receiving guidance from Ms. Hammond and input from the workers' compensation carrier, Ms. Torres called Petitioner and informed her that Sanmar had not received any additional information from Dr. Grieder and advised Petitioner that it was Petitioner's responsibility to obtain a new note from her doctor if she could not work. Ms. Torres reminded Petitioner that she needed to come in to discuss her restrictions and possible light-duty work. Ms. Torres received another call from Petitioner on November 14, 2011. Ms. Torres reiterated to Petitioner that she needed to report to work with her restrictions so Sanmar could attempt to accommodate her appropriately. Petitioner reported to work later that same day. She met with Mr. Rhodes and Ms. Torres to discuss her ability to work and what accommodations would be necessary. Mr. Rhodes first advised Petitioner that she would be doing go-backs which could be performed without the use of her left hand. When Petitioner expressed concern about her ability to perform that task, Mr. Rhodes agreed to assign her a temporary light-duty position auditing the restock until they could review the matter further. Petitioner agreed to perform the restock work. Also on November 14, 2011, Ms. Torres received a fax from Dr. Grieder's office which attached the same November 2, 2011, note regarding Petitioner's restrictions. Nothing in the November 14, 2011, fax from Dr. Grieder's office changed Petitioner's work restrictions. Auditing the restock is not a regular position at Sanmar, but is one part of the many duties of the inventory department. In offering this temporary work to Petitioner, Sanmar eliminated many of the essential functions of the Order Processor job. Petitioner left the November 14 meeting with Ms. Torres and Mr. Rhodes and worked for about two hours. After about two hours, Petitioner apparently fainted and left work in an ambulance which transported her to the hospital. That was the last day Petitioner worked for Sanmar. Petitioner received notes from Dr. Greider dated November 21, 2011, and December 9, 2011, listing the same light duty restrictions (i.e., no repetitive gripping and pinching, no repetitive pulling and pushing, no lifting greater than five pounds, no production keying, and frequent rest breaks), valid for the left hand only. Petitioner also received a note from Dr. Greider dated January 23, 2012, indicating that she may continue previous restrictions until February 6, 2012, at which time the patient may return to work full duty. However, Ms. Hammond, Ms. Thurmond, and Ms. Torres, all testified that they did not receive this note. Petitioner was seen by an orthopedic doctor in August 2012. The doctor's note indicates that she has a permanent work restriction which precludes her from lifting more than 10 to 15 pounds. Facts regarding disciplinary action Through an employee loan program, Sanmar approves loans to employees under certain circumstances. In late December 2010, an incident arose involving Petitioner and her request for an employee loan. On December 28, 2010, Ms. Torres heard Petitioner speaking in a loud voice outside of Ms. Torres' office. She heard Petitioner accusing her assistant at that time, Sandra Colindres, of refusing to help her with papers required for such a loan. Petitioner spoke in a tone of voice that Ms. Torres felt was not appropriate for the office. She then asked Petitioner to meet with her in her office. While in Ms. Torres' office, Petitioner complained that Ms. Colindres was unwilling to help her with the loan paperwork. Petitioner had not been scheduled to work that day. Ms. Torres informed Petitioner that the loan process had very recently been changed, and that the loan would need to be approved by Human Resources if it were determined that there was a critical need. Ms. Torres considered Petitioner's tone of voice during this conversation in her office to be disrespectful, demanding and rude. At the end of this meeting, Ms. Torres told Ms. Colindres to give Petitioner the employee loan form. When Petitioner left Ms. Torres' office, Petitioner approached a co- worker who was also in the office and began talking in a loud voice about what had just happened. Ms. Torres overheard Petitioner talking about their meeting to another employee and asked Petitioner to discuss the issue in her office. Ms. Torres told Petitioner that her conduct was disruptive, unprofessional, and unacceptable. She told Petitioner that she had caused a disturbance in the workplace, that Ms. Torres would be informing the DC manager about this incident, and that Petitioner would likely be receiving corrective action.4/ Shortly thereafter, Ms. Torres accompanied a pest control representative to the break room. When they arrived in the break room, Ms. Torres observed Petitioner telling a group of employees her version of the events in her office. The employees dispersed when they saw Ms. Torres enter the break room. When Ms. Torres turned to leave the break room, she saw Petitioner complaining to yet another group of employees about the incident. Ms. Torres considered this behavior to be extremely disruptive. Ms. Torres then asked a supervisor, Tasha Porter, to instruct Petitioner to leave the premises. Ms. Torres was relatively new to the company, and she consulted with Paul Rhodes and Olivia Thurmond to determine appropriate disciplinary action that would be consistent with the company's response to similar instances of conduct. Mr. Rhodes was out of the office from December 27, 2010, through January 2, 2011. On January 3, 2011, Mr. Rhodes and Petitioner met to discuss the December 28, 2010, incident. Tasha Porter also attended the meeting and supervisor Daniel Serrano attended the meeting as an interpreter. Mr. Rhodes also spoke to and received written statements from Alice Torres, Sandra Colindres and Tasha Porter regarding the incident. After reviewing the matter, a decision was made to give Petitioner a final Written Warning for unprofessional conduct and disruptive behavior which had taken place on December 28, 2010. Petitioner refused to sign the final Written Warning, did not acknowledge that she committed the actions described, but acknowledged that the conduct described would be unacceptable and that a person engaging in such conduct could be terminated. The final Written Warning was given to Petitioner on January 10, 2011, by Mr. Serrano, who also speaks Spanish. Prior to receiving this final Written Warning, Petitioner had not reported a disability to anyone at Sanmar. There is nothing in the record to establish or suggest that any one at Sanmar knew, perceived or regarded Petitioner as having a disability at that time. On the evening of April 18, 2011, Group Lead Terri Andrews was supervising the employees on the lo-bay floor. Employees were working overtime to get all customer orders shipped by the end of the day. Ms. Andrews was at the print station, as Petitioner approached her. Ms. Andrews directed Petitioner to report to the pack line. Petitioner told Ms. Andrews that she wanted to go home. Ms. Andrews told Petitioner again to report to the pack line and Petitioner left the floor. Ms. Andrews described Petitioner as appearing agitated. Petitioner arrived at the pack line where Becquer Rosado, another Group Lead, was directing employees where they were needed the most. Mr. Becquer saw Petitioner approaching and before he could direct her to a position, she put her hand up in the air, walked past him, and told him that she would only take instructions from Patricia Alonso and not from him. This was done in front of other employees. Patricia Alonso was a Department Lead for the pack line. A Group Lead is superior to a Department Lead because Group Leads oversee several functions, while Department Leads only supervise a single function. Employees are expected to follow the directions of both Group and Department Leads. Mr. Rosado reported this incident to his supervisor, Lori Pritchard, and completed an Employee Concern form the following day. Ms. Andrews also reported Petitioner's behavior to Ms. Pritchard, and completed an Employee Concern form on April 21, 2011. It was that day that Petitioner approached Ms. Torres to talk about pain that Petitioner was having in her wrists and hands as more fully discussed in paragraph 6 above. Petitioner was not at work from April 21 until April 26, 2011. After reviewing the Employee Concern forms, Ms. Torres met with Petitioner regarding the April 18, 2011, incident. During this meeting, Petitioner denied being disrespectful to Ms. Andrews and Mr. Rosado. After speaking to Petitioner on April 26, 2011, Ms. Torres recommended that Petitioner be terminated for her actions of April 18, 2011, because Petitioner had just received a final Written Warning for her behavior on January 10, 2011. However, Mr. Rhodes decided to give Petitioner another chance and, instead of terminating Petitioner, decided that Sanmar would issue a Final Warning Follow Up Discussion Memo to Petitioner, which was done on May 5, 2011. This Discussion Memo reiterated that any future violation of company policy by Petitioner would result in further corrective action up to and including termination of employment. During May and June 2011, and pursuant to Sanmar's Voluntary Time Out (VTO) procedure, Petitioner volunteered on several occasions to go home when production was slow and Sanmar asked for volunteers. Employees interested in VTO simply had to write their names on the "Go Home Early Sheet." Sanmar then selected employees for VTO in the order in which the employees volunteered to go home early. Petitioner's name appears on the VTO sheets in evidence, and her name is near the top of the list on most days. She was not sent home early on days that she had not signed up for VTO on the Go Home Early sheet. On June 20, 2011, after leaving the doctor's notes referenced in paragraph 18 through 20 with Ms. Battle, Petitioner proceeded to the break room where Tasha Porter, a supervisor, found her engaged in a conversation with co-workers while on the clock and not on a break. When Ms. Porter asked Petitioner why she was in the break room while clocked in, Petitioner replied that she taking her break. Ms. Porter reported this to Ms. Torres. Afterwards, Petitioner returned to work processing go-backs, although another employee was doing the keyboarding, as further explained above. As discussed in paragraph 21 above, Ms. Thurmond was visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes discussed the incident in the break room and decided to issue a final Written Warning to Petitioner for falsification of time records for this incident of being "on the clock" while in the break room. This was the same meeting in which they discussed Petitioner's June 20, 2011, work restrictions. Ms. Torres and Ms. Thurmond issued a final Written Warning to Petitioner at the same meeting in which they notified her that Sanmar had approved Petitioner's request for FMLA leave. The weight of the evidence shows that this took place on June 21, 2011. On or around November 3, 2011, prior to Petitioner going on leave for her second hand surgery, Ms. Torres learned of an incident involving Petitioner and her son, Manuel Sanchez, who also worked for Sanmar. Specifically, Ms. Torres learned that Mr. Sanchez may have forged Petitioner's signature on a time-off request which asked for permission to be off work on October 28, 2011. After discussing this with Mr. Sanchez, Ms. Torres concluded that he had forged his mother's name on the time-off request at her request. Sanmar considered this to be falsification of company records. This is an offense for which Sanmar has disciplined employees in the past.5/ On Friday November 4, 2011, which was Petitioner's last day at work before taking leave for her second hand surgery, Ms. Torres discussed the forged time off request with Petitioner. Petitioner admitted that she had asked her son to fill out the request and sign her name. At the end of their conversation, Ms. Torres told Petitioner not to discuss their meeting or the situation with anyone, not even Petitioner's son, because the company was continuing to investigate the matter. Despite this instruction, Lori Pritchard, a supervisor, reported to Ms. Torres that Petitioner went directly to her son and had a heated discussion with him at the print station. Although Ms. Pritchard was unable to fully understand their conversation because it was in Spanish, Ms. Pritchard advised Ms. Torres that she believed they were discussing Ms. Torres' meeting with Petitioner. Following this incident, Ms. Torres met again with Mr. Sanchez and Mr. Sanchez admitted he and Petitioner were discussing the forged time off request at the print station on November 4. Ms. Torres, however, was unable to speak to Petitioner about this incident until November 14, 2011, when Petitioner returned to work after her November 7 (second) surgery. During the meeting with Petitioner upon her return to work on November 14, 2011, (see paragraph 30), Mr. Torres and Mr. Rhodes told Petitioner the company was still reviewing the incident regarding the forged time-off request. They advised Petitioner that they had confirmation she and Mr. Sanchez discussed the forged time off request at the print station. While Petitioner denied this, she admitted she talked about the incident with her son at home, where Mr. Sanchez also resided. Ms. Torres and Mr. Rhodes believed Petitioner should be terminated for the November 4 incident, because it involved an incident of insubordination, following the previous warnings of unprofessional conduct issued In January and May 2011. However, they wanted to discuss their recommendation with Ms. Thurmond and Marty Rask, Operations Manager, in keeping with the company's normal practice. Although they planned to talk to Ms. Thurmond and Mr. Rask and, with their concurrence, terminate Petitioner later during the day on November 14, they were not able to do so because of Petitioner unexpectedly became ill on that day. This began a lengthy leave of absence from which she never returned. Mr. Rhodes and Ms. Torres recommended that Sanmar terminate Petitioner for her insubordination on November 4, when she discussed the document falsification issue with her son in violation of Ms. Torres' instructions, as well as her dishonest and evasive response on November 14, when Mr. Rhodes and Ms. Torres spoke to her about the incident. The final decision to terminate Petitioner was made on November 30, 2011. However, Sanmar did not communicate the termination decision to Petitioner until January 24, 2012. This delay resulted from circumstances related to Petitioner's medical leave and on-going workers' compensation proceedings.6/ Sanmar decided to move forward with its November 30, 2011, termination decision. Sanmar's usual practice of communicating employee termination is to inform the employee in person. However, Christy Hammond had been communicating with Petitioner and respected Petitioner's request that she not be required to come to the workplace only to be fired. Therefore, Sanmar decided to issue the termination letter via mail. Accordingly, on January 24, 2012, Sanmar sent Petitioner a termination letter signed by Olivia Thurmond. Enclosed with the letter was a documentation form explaining the reasons for Petitioner's termination, i.e., Petitioner's insubordination on November 4 and her dishonest and evasive behavior on November 14, combined with her prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Teresa Urbina. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 30th day of November, 2012.
