The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2014.
The Issue The issue is whether Respondent discriminated against Petitioner based on his handicap contrary to Section 760.23, Florida Statutes (2009), Fair Housing Act, as amended (the Act).
Findings Of Fact Respondent is a public housing authority that administers the U.S. Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, known as the “Section 8” program, within Bay County, Florida, pursuant to 42 U.S.C. § 1437f. Under the Section 8 program, Respondent uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased “unit” directly to the landlord. The Section 8 tenant pays the balance of the monthly rent to the landlord. The percentage paid by Respondent on each Section 8 voucher is determined by the family’s size, income, medical expenses and other similar factors. The percentage is reevaluated annually when the voucher holder is “recertified” for continuing eligibility for the Section 8 program by Respondent’s staff. As part of each recertification, the voucher holder signs a form listing “Family Obligations” required by HUD. In part, the “Family Obligations” require a Section 8 tenant to keep utilities on in the unit and to give the landlord and Respondent written notice before moving out of a unit. After Petitioner moved from New Jersey to Panama City, Florida, he received a Housing Choice Voucher from Respondent on March 23, 2005. He executed a lease for a HUD-approved unit on March 22, 2005. The lease was originally for a term of one year and then automatically became a month-to-month tenancy. Paragraph 27 of the lease requires 14-days’ written notice to terminate the lease. On June 16, 2009, Petitioner visited Respondent’s office and spoke with Andrea Lawson, the Assistant Section 8 Coordinator. She knew Petitioner from several re-certifications she had conducted on his voucher, the most recent one being on February 4, 2009. On June 16, 2009, Petitioner told Ms. Lawson that he wanted to move to be closer to friends and family, and that he and Ms. Maldonado were “bored” because there were not enough activities going on in the area. For these reasons, Petitioner wanted his Section 8 voucher transferred to Osceola County, under the "portability" provision of the Section 8 program. As was her normal custom, Ms. Lawson hand-wrote a memo for the file memorializing the conversation. Petitioner's testimony relative to the above-referenced conversation with Ms. Lawson is not credible. There is no persuasive evidence that Petitioner's apartment flooded in February 2009, or that he requested to have his Section 8 voucher transferred to Osceola County because he was getting sicker and the doctors in Panama City did not "understand" him. The same day as Petitioner’s visit, Ms. Lawson sent an inquiry, via telefax, to the housing authority in Osceola County, asking if they were “absorbing” Section 8 voucher holders. That term means that the receiving housing authority agrees to pay the voucher holder’s rent subsidy in the new locale, and that the original housing authority will have no further obligations to fund the voucher. The housing authority in Osceola County replied that they were not absorbing at that time. Ms. Lawson telephoned Petitioner to inform him of Osceola’s answer. In late fall of 2009, Petitioner telephoned Carol Ramer, a Section 8 Coordinator, several times. He first requested that she again ask the housing authority in Osceola County if it was absorbing, and later twice requested that she ask Orange County if it was absorbing. The replies from both authorities were that they were not absorbing. Letters mailed by Ms. Ramer to the Petitioner, to inform him of the negative replies, were returned to her as undeliverable. In early January 2010, Respondent received a letter from an attorney, on behalf of Petitioner, requesting that Respondent make a reasonable accommodation for Petitioner’s handicap by agreeing to pay the voucher subsidy for him in Osceola County. The situation where the original housing authority agrees to pay for a voucher outside its jurisdiction is referred to in the lexicon of Section 8 as “porting” or “to port”. The letter was the first time Respondent was asked to make an accommodation, or to agree to “porting” the Petitioner. The letter was also the first indication that Respondent received, indicating that Petitioner may have moved to Kissimmee in Osceola County on his own. Because of the letter, Ms. Ramer went to the unit in Parker, Florida, to see if Petitioner was still residing there. She found three United Parcel Service delivery notice stickers affixed to the front door; all three were dated in mid-August 2009. She also found no signs that the unit was occupied. Ms. Ramer then contacted the City of Parker water department and was told the water service to the unit had been shut off at the customer’s request on June 18, 2009. Petitioner and his cousin admitted during the hearing that they put the water “on-hold” before they left. Petitioner asserts that while “passing through the streets” of Kissimmee, he found several apartments that were cheaper than the rent on his unit in Parker. However, he admitted that he did not know if those cheaper units met HUD’s standards for the Section 8 program. Petitioner admitted during the hearing that he left his Section 8 unit in Parker on June 18, 2009, re-located to Kissimmee, and has never returned to Bay County. He also admitted that he never gave his landlord or Respondent any written notice that he intended to vacate his unit in Parker. In addition, he admitted he is familiar with the Section 8 Family Obligation rules and signed off that he would comply with them. In recent years, HUD has significantly cut back its Section 8 funding allotted to local housing authorities. At the same time, the downturn in the economy has increased unemployment in Bay County, thus requiring Respondent either to pay a greater percentage of existing Section 8 vouchers or to terminate some vouchers. Increased unemployment has forced Respondent to implement cost cutting measures, including the following: (a) through attrition, reducing the number of families served under the voucher program from over 420 several years ago to only 326 now; (b) issuing no new vouchers; (c) adopting a policy that it would not “absorb” voucher holders moving into Bay County and would not “port” voucher holders to jurisdictions outside Bay County. No one has been "ported" out or "absorbed" in three years. This policy applies across the board to all voucher holders. The only families who have moved out during this period and retained their vouchers are those that were “absorbed” by the receiving housing authorities. Both Osceola and Orange Counties are higher cost areas than Bay County. If Respondent were to agree to “port” a voucher to either of those counties, it would have to pay more than it pays for one family in Bay County, thus reducing its ability to serve as many local residents as possible with its limited funding. Petitioner presented no evidence of quantifiable damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2010. COPIES FURNISHED: Adalberto Diaz 2307 Boggy Creek Road, Box 38 Kissimmee, Florida 34744 William C. Henry, Esquire Burke Blue Hutchison Walters & Smith, P.A. 16215 Panama City Beach Parkway Panama City, Florida 32413 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.
Findings Of Fact Petitioner is a black woman who lives in Jacksonville, Florida. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop. Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point, Mr. Al Janaby spat at Petitioner. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees. Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not the FCHR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2018.
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
The Issue Whether Petitioner, Francesca Thomas, was subject to an unlawful employment practice by Respondent, SMA Behavioral Health, Inc., based on her alleged handicap/disability in violation of the Florida Civil Rights Act, section 760.01, Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a Family Intensive Therapeutic Team (FITT) counselor for Respondent. She provides substance abuse and mental health counseling with the goal of reuniting her clients with their children. Petitioner has worked for Respondent for 15 years, and was described by one of her supervisors as “professional.” During the course of her employment with Respondent, Petitioner has received multiple promotions, presumably indicative of the quality of her work for Respondent. FITT counselors are responsible for providing counseling services to 10 to 12 clients that are referred by child welfare. The program is designed for FITT counselors to see their clients at the clients’ homes or out in the community. Respondent provides a laptop and cell phone for each FITT counselor for use in the field. FITT counselors rely upon electronic medical records and use their laptops to communicate with clients and manage their caseloads. Occasionally there are some hard copy documents used by the FITT counselors, but Respondent has policies and procedures in place to manage the security of these documents. Hard copy documents are required to be secured in locked bags or in the trunks of the FITT counselor’s cars. All of the progress notes that FITT counselors prepare are paperless. Additionally, the discharge notes, communications, and child welfare records are paperless. Over the course of a case, the majority of the documents are paperless. FITT counselors only have to come into the office if they have meetings with their supervisor or have documents in hard copy format. If they so choose, they can work on their case notes and communicate with clients from the office. They can also connect to the internet, work on their case notes, and communicate with clients remotely. In all, 70 to 80 percent of Petitioner’s work is performed outside of the office. Some of the FITT counselors perform the majority of their work at home. This is accomplished via their company issued laptop and WiFi delivered through their phone. Respondent has a Virtual Private Network (VPN) system that allows FITT counselors to work remotely and securely from their homes. Petitioner’s position was designed so she would not be tethered to a desk. As noted, she has the ability to connect to WiFi through a WiFi hotspot that is available on the phones issued by Respondent, which essentially allows her to work from anywhere. Prior to February 2018, the FITT counselor’s offices were located in the Cantley Center, in Daytona Beach, Florida. The work stations provided to the counselors at this location were very small offices (approximately 8 ft. by 8 ft.) with doors, as opposed to work cubicles. Some FITT counselors shared offices with other counselors, while some counselors, including Petitioner, had their own offices. The workspace was described by one counselor as a “cave” since it was located in the lower level of the building, there were no windows, and the small offices had low ceilings. For reasons not reflected in this record, sometime in early 2018 the decision was made to relocate Respondent’s operations to a new location. On or around February 27, 2018, Petitioner went to Respondent’s new offices to examine where she would be working. Petitioner’s department was one of the first to move into the new building. At the new location, the FITT counselors were to be assigned to cubicles, rather than offices. Although Petitioner’s previous office was very small, when Petitioner saw her new work space she shouted loudly “I can’t do this. I can’t do this,” and began suffering a panic attack. When Petitioner then requested that she be assigned to a different cubicle, based upon her seniority, her supervisor informed her that all the work spaces were already assigned by the Program Management and Facilities departments. In November 2017, Petitioner informed Respondent that she occasionally suffers from panic attacks. However, it was not until March 1, 2018, that Petitioner told her supervisors that she was claustrophobic. Her supervisors told her that they were unaware of her being claustrophobic and did not recall her ever saying that she was claustrophobic. Petitioner received a Performance Notice due to her exchange with her supervisors on February 27, 2018. As a consequence of this Performance Notice, Petitioner was placed on 90 days probation. On March 14, 2018, Petitioner asked to schedule a meeting with her supervisor to discuss her Performance Notice. She did not ask about a reasonable accommodation in her March 14th email to her supervisor, BranShonda Levine. On March 19, 2018, Petitioner again exchanged emails with Ms. Levine regarding a meeting to discuss her Performance Notice. On that same date, Petitioner also exchanged emails with Jennifer Stephenson, senior director of Outpatient Services, that were related to her Performance Notice. Ms. Stephenson understood Petitioner’s email to only be focused on appealing the issuance of the Performance Notice that Petitioner received. In the e-mail exchange, Petitioner indicated she wanted to meet with Ms. Stephenson and Deborah Loyd, Respondent’s vice president of Human Resources, to discuss her Performance Notice. Ms. Stephenson scheduled a meeting with Ms. Loyd in response to Petitioner’s March 19th email regarding her Performance Notice. Petitioner submitted a rebuttal to her Performance Notice on March 20, 2018, stating that she did not feel that the issuance of the Performance Notice was warranted. At a meeting on March 20 or 21, 2018, Petitioner expressed for the first time that she may need a reasonable accommodation. At this meeting, Ms. Stephenson learned for the first time that Petitioner claimed she has claustrophobia. Likewise, Ms. Stephenson did not know Petitioner was seeking a reasonable accommodation until this meeting. In a follow-up email dated March 21, 2018, Ms. Stephenson recommended Petitioner work with Respondent’s Human Resources Department regarding her claustrophobia and panic attacks. Ms. Stephenson acknowledged that if they were documented conditions, Respondent would make a reasonable accommodation for Petitioner. As of March 30, 2018, Petitioner remained focused on the two disciplinary actions1/ she had received in early 2018, and her request to have those reviewed and removed from her personnel file. As of this date, Petitioner was working in her assigned cubicle, and made no mention of having any issue working in the cubicle. Respondent has adopted Policy HR102, titled “Accommodation of Individuals with Disabilities or with Communications Barriers.” Consistent with this policy, if an employee needs an accommodation, they must participate in the interactive process with Respondent, including filling out and submitting the American with Disabilities Act (ADA) Accommodation Questionnaire. The employee and their physician are required to document the disability and accommodation request. Respondent then reviews the completed interactive process paperwork and schedules a meeting to discuss the same with the employee. This is to determine the accommodation that is being requested and if Respondent is able to provide the requested accommodation, or whether other alternatives could be provided. Petitioner submitted her reasonable accommodation paperwork to Respondent on April 25, 2018. Petitioner’s reasonable accommodation paperwork stated that she did not have an impairment that substantially limited a major life activity as compared to most people in the general population. However, Petitioner did state that her impairment “limits patient breathing, talking, thinking.” During the interactive process, Petitioner requested a more open space to avoid panic attacks that might occur due to claustrophobia. On May 14, 2018, Petitioner submitted a letter solely focused on the Performance Notice relating to her exchange with her supervisors on February 27, 2018. No mention was made of Petitioner being unable to work successfully in her assigned cubicle. Respondent attempted to schedule a meeting with Petitioner on May 30, 2018, to discuss her request for a reasonable accommodation. However, on May 31, 2018, Petitioner rescheduled the meeting because she injured her eye. On June 1, 2018, Petitioner rescheduled the meeting again, this time to take place on June 4, 2018. The purpose of the meeting would be to discuss Petitioner’s interactive process paperwork. Prior to the June 4, 2018 meeting, Ms. Loyd met with Ms. Stephenson to review what options would be available to meet Petitioner’s request for an accommodation. The June 4, 2018 meeting was held as scheduled and was attended by Petitioner, Ms. Stephenson, and Ms. Loyd. At the meeting, Ms. Loyd and Ms. Stephenson discussed the accommodation request with Petitioner and advised her of what accommodations Respondent would be able to offer her. Specifically, they informed Petitioner she could work from home or use the conference room in her immediate work area. As to Petitioner’s desire to be reassigned to a different cubicle or an office, Ms. Stephenson and Ms. Loyd explained that the other cubicles were already previously assigned, and that other departments were utilizing the offices in the building. Moreover, the physical offices in the building were not a part of Petitioner’s department. In an e-mail Petitioner sent to Ms. Loyd following their meeting, Petitioner inquired as to whether the wall on the right side, and the front wall of her assigned cubicle, could be taken down. This option was explored by Respondent and it was determined that the walls at issue could not be moved or reconfigured. Petitioner insisted that she should be permitted to use offices in the building instead of being permitted to work from home or in a conference room. Accordingly, Petitioner did not accept either of the accommodations offered by Respondent and ceased engaging in the interactive process with Respondent. Petitioner would not have been subject to increased duties if she chose to work from home. Respondent also examined whether the cubicle walls could be removed. However, it was not feasible to reconfigure or move the cubicle walls. After the meeting, Petitioner emailed Ms. Loyd but did not state that she believed the conference room accommodation, or working from home, would be inappropriate. At hearing, Ms. Stephenson could not recall Petitioner ever speaking with her again about additional accommodation requests. Respondent reasonably determined that the nearby conference room would be an open space for Petitioner to work, thereby reducing the likelihood that Petitioner would suffer from claustrophobia. Petitioner agreed the conference room Respondent offered to her is an open space. As noted previously, it is a common practice for counselors who work in the field to work from home, as well as from other locations. The FITT counselor’s hard copy files are in filing cabinets that are in a separate area away from the cubicles. Therefore, Petitioner would not need to store her files in the conference room. Petitioner worked in the original cubicle she was assigned for seven months. In November 2018, an employee who worked out of a different cubicle left the company and Respondent offered Petitioner a new cubicle. Petitioner accepted the same, and as of the date of the hearing Petitioner continues to be employed by Respondent.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Francesca Thomas, did not prove that Respondent, SMA Behavioral Health, Inc., committed an unlawful employment practice against her and dismiss her Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 18th day of December, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2019.
The Issue Whether the Florida Department of Agriculture and Consumer Services (Respondent or Department) discriminated against Deborah Owens (Petitioner) by denying her reasonable accommodation and discharging her based on her disability.
Findings Of Fact Petitioner was a Career Service employee of the Department as an Environmental Specialist II from 2009 until her termination on May 5, 2016. As an Environmental Specialist II, commonly referred to as an “inspector,” Petitioner worked in the Department’s Division of Agricultural Environmental Services, Bureau of Inspection and Incident Response (Department’s Bureau). As an inspector, Petitioner spent approximately 40 percent of her time performing inspections and investigations pursuant to chapters 388 (mosquito control), 482 (pest control), 487 (pesticide regulation and safety), 576 (agricultural fertilizers), 578 (seed), and 580 (commercial feed and feedstuff), Florida Statutes,1/ and related administrative regulations. The rest of Petitioner’s duties consisted of preparing reports based on her inspections and investigations, and maintaining knowledge of applicable statutes and rules. All of the inspectors in the Department’s Bureau were required to be physically capable of performing assigned inspections. While the amount of climbing varied from month to month and place of inspection, Environmental Specialist IIs, as part of their job as inspectors, are required to climb. In the case of fertilizer inspections, inspectors are required to take samples from fertilizer plants, storage vehicles, and trailers in the field. While climbing is not required at those fertilizer plants that have sampling rooms, not all fertilizer plants have sampling rooms. Therefore, inspectors need to be prepared to climb at fertilizer plants. In addition, inspectors are required to climb atop Killebrew trailers2/ or similar equipment in the field to take samples. For inspection of Killibrews, which have separate storage compartments housing fertilizer, an inspector must use a ladder to climb to the top of the Killibrew and obtain samples. Seed inspections may also involve climbing, depending on how the seed is arranged. In some cases, bagged seed is stacked on large pallets, in which case, unless it can be moved, an inspector may have to climb in order to take a sample. During Petitioner’s tenure as an inspector, chapter 482 pest control inspections were added to the inspection duties of Environmental Specialist II following a reorganization of the Department’s Bureau. While, at the time of the hearing, climbing for those types of inspections had been put on hold, fumigation inspections have, at times, required climbing on a ladder into attic spaces or to reach higher exterior portions of a building. Climbing is a variable part of every inspector’s job. The amount of climbing that is required increases during heavy agricultural growing seasons. Although a variable activity, when climbing for inspections is required, it can be laborious. All of the testifying witnesses, who were inspectors for the Department’s Bureau, reported they were required to climb in performing their jobs for the Department. In applying for her Environmental Specialist II position, on a document entitled “Pesticide Compliance Environmental Specialist II Self-Screening/Willingness Questionnaire,” which listed requirements necessary for all candidates, Petitioner affirmatively acknowledged that she was willing and able to “[c]limb and work on top of delivery and application equipment to obtain samples when necessary.” While the climbing requirement varies in frequency, climbing was a necessary part of Petitioner’s job duties as an inspector for the Department, and is a necessary component of an Environmental Specialist II’s job. In 2015, Petitioner took medical leave and underwent double knee replacement surgery. Historically, Department management meets each fiscal year to review inspection numbers by region for purposes of determining and assigning the minimum number of inspections for each inspector for the fiscal year. At the meeting for the 2015-2016 fiscal year, Petitioner was assigned a reduced number of inspections based on the understanding that she would be absent from work for approximately six months due to her medical leave in 2015. Instead of a full fiscal year of goals, Petitioner was given six months of performance goals, reducing the total number of inspections assigned to Petitioner based on her medical leave of absence. Upon her return to work in November 2015, Petitioner had physical limitations stemming from her knee surgery. Petitioner presented to her then-supervisor at the Department, “Dusty” Markham, a doctor’s note dated November 20, 2015. The doctor’s note, from Petitioner’s treating physician, Dr. Richard Vlasak, on UF Health Physician’s stationary, stated, in pertinent part: Deborah Owens has been under my care for treatment of bilateral knee DJD, which included surgery S/P bilateral total knee arthroplasties performed 5/20/15. Limitations: Patient may return to work as of 11/20/15 with restrictions. No cannot [sic] climb on fertilizer trailers, killbrews [sic] no climbing ladders. The above limitations are temporary for 3 months after return to work. Patient is expected to make a full recovery and resume all activities after 3 months time. Upon her return, based on medical information Petitioner provided to the Department’s management, Petitioner was assigned only those inspections that she was medically capable of performing. In February 2016, Petitioner was assigned to the Department’s Region I, and Bryan Smithey, an environmental manager with the Department, became Petitioner’s direct supervisor. Mr. Smithey oversees all of Region I, a territory stretching from Levy County, northward, and westward to Escambia County. Mr. Smithey supervised Petitioner and eight other environmental specialists. Petitioner was assigned a territory within Region I consisting of Gilchrist, Dixie, and Levy Counties. Petitioner’s assigned territory included a fertilizer plant in Trenton, Florida. This plant did not have a sampling room. Because of Petitioner’s temporary restrictions on climbing, other inspectors were assigned to cover Petitioner’s inspections at the Trenton plant. One of the inspectors who covered for Petitioner was Andreas Coveney. Mr. Coveney conducted numerous inspections for Petitioner at the Trenton plant. In order to conduct the Trenton plant inspections, Mr. Coveney had to drive over two hours, one-way, from his home. Another inspector, Ed Harris, conducted over 40 inspections for Petitioner at the Trenton plant. In doing so, Mr. Harris had to drive from his assigned area of Ocala. The inspections that Mr. Coveney and Mr. Harris conducted for Petitioner were additional inspections, separate and apart from their regularly assigned duties. The inspections conducted for Petitioner were not accommodations for her disability. Rather, they were temporary assistances provided for Petitioner at a time when Petitioner was unable to perform the essential duty of climbing as an inspector. Petitioner argues in her Proposed Recommended Order that an e-mail dated November 19, 2015, in which she suggested working from home “while the matter gets cleared up” was a request for accommodation for her disability. It is found, however, that Petitioner’s suggestion was a request for permission to do some work from home for a short time, before actually returning to work, because she was out of sick leave; and it was not a request for accommodation of her disability. In March 2016, Petitioner presented another doctor’s note to management. This note, dated March 10, 2016, was also from Dr. Vlasak. The note again stated that Petitioner “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders.” The new letter, however, stated: “The above limitations are permanent.” Respondent has a policy governing Inefficiency or Inability to Perform Job Duties in Administrative Policy and Procedure (AP&P) No. 5-3. The policy states, “Employees shall, at a minimum, be able to perform duties in a competent and adequate manner.” Id. A violation of this standard can result in termination. By letter dated April 1, 2016 (Intent to Terminate Letter), the Department informed Petitioner of its intention to dismiss her. The Intent to Terminate Letter explained, in part: On March 10, 2016 we received a letter from your physician stating that you are permanently restricted from climbing on fertilizer trailers, killibrews and ladders. While your medical condition is not being questioned, you are expected to, at the minimum, be able to perform duties in a competent and adequate manner. As an employee with the department since December 11, 2009, you are aware that you must be able to perform the essential duties of your position. Your actions constitute a violation of AP&P No. 5-3, Section V, Inefficiency or Inability to Perform Assigned Duties, (Page 3). The Intent to Terminate Letter further informed Petitioner of her right to attend a meeting to be conducted pursuant to section 110.227(5)(a), Florida Statutes, on April 26, 2016 (Predetermination Conference), where she would be allowed to answer, orally or in writing, the charges against her. On April 12, 2016, prior to the scheduled Predetermination Conference, Petitioner provided to Department management another letter regarding her work status. The letter, dated April 12, 2016, was not signed by her physician. Rather, it was signed by a licensed practical nurse (LPN). The April 12, 2016, letter states that it is a “revised work status letter.” The letter restates the previous “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders,” but, instead of advising that the restrictions were permanent, states that “[t]he above limitations are temporary for 12 months as of 3/10/16 at which time we will re-evaluate work status.” The April 12, 2016, letter was apparently authorized by Petitioner’s treating physician, as the LPN’s signature appears above Dr. Vlasak’s signature block, and the letter bears the same UF Health Physician’s letterhead as previous letters from Dr. Vlasak. Petitioner attended the Predetermination Conference, during which she advised that she was currently unable to climb. The April 12, 2016, letter was considered at the Predetermination Conference. The Department’s memorandum dated April 27, 2016, regarding the Predetermination Conference, authored by the Department’s assistant director of Division of Food Safety, states in part: A subsequent letter dated April 12, 2016, from a member of the physician’s staff specified that these same limitations were temporary for the next 12 months at which time they will be re-evaluated. Even though the April 12, 2016, letter was considered, the assistant director supported the recommendation to terminate Petitioner. As he explained in the April 27, 2016, memorandum: In considering the information provided, I looked at Ms. Owens current position description and considered the physical requirements of the inspector position. The position requires someone with full physical capability. Ms. Owens has been medically limited from performing certain duties for almost a year already and is expected to be limited for at least another full year or possibly permanently. Therefore, I am supporting the recommendation for termination for inability to perform assigned duties. Consistent with the Intent to Terminate Letter and the assistant director’s support for termination, by letter dated May 5, 2016, signed by the chief of the Department’s Bureau of Personnel Management, Petitioner was terminated from her position with the Department. Petitioner never requested an accommodation for a disability prior to her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2018.
