The Issue Whether Respondent committed violations of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner began working at Apalachee Correctional Institute (ACI) in 1993. ACI had about 1,600 to 1,800 inmates during times pertinent to this case. The inmates assigned to ACI are those found to be mentally disturbed. ACI is divided into the East Unit and the West Unit. Petitioner was hired as a Clerk Typist Specialist. She worked in the health services area performing typing and filing in the East Unit. In time Petitioner developed carpal tunnel syndrome. She had three surgeries, two of which involved her wrists. These medical problems prevented her from working a normal schedule and she had to expend her leave in order to cover her absences. Because of the problems with her wrists, she had, from time to time, difficulty typing without experiencing pain. Ann Lashley was employed in the West Unit. In 1995, she had a disagreement with her co-workers and, as a result, she was transferred to the East Unit. Subsequently, Petitioner was moved to the West Unit. Much of the work accomplished by the clerk-typists was related to transcribing psychiatrists' notes. The psychiatrists in the East Unit often typed their own notes. The psychiatrists in the West Unit did not. Therefore, there was more typing for the clerk-typists in the West Unit. Petitioner had difficulty keeping up with this additional typing. John Frank Williams was the overall supervisor of the East and West Units. He does not know, or in any event does not recall, why Petitioner was transferred. Petitioner filed a workers' compensation claim based on a date of accident of August 1, 1993. Petitioner's medical situation was coordinated with the Florida Division of Risk Management. A contract service, Compensation Rehabilitation Associates, was employed to audit Petitioner's work station and to determine what, if any, special equipment might assist Petitioner in accomplishing her employment duties without pain. A representative of Compensation Rehabilitation Associates opined that Petitioner required an ergonomically designed chair. Mr. Williams ordered one for her and Petitioner used it. Mr. Williams had work which had to be addressed. Nevertheless, he was aware of Petitioner's limitations and need to visit doctors and made diligent efforts to resolve the situation, including scheduling her work hours in a manner which would permit her to seek medical care. Petitioner related the following events which she contended constituted harassment: In 1994, when she first had problems with one of her wrists, she was told by Kenneth Swann to type with one hand. She was also told, at some time, by Dr. Cherry to type with one hand. She attended a meeting where Mr. Williams said, apparently in response to her continuing medical difficulties, that no one would want her. Joseph Thompson, at some point, told her she was not a team player. Dr. Loeb placed Petitioner at maximum medical improvement (MMI) on June 6, 1995 with no impairment or restrictions. Dr. Vogter placed the Petitioner at MMI on June 25, 1995, with an impairment rating of 17 percent, with restrictions of light duty and no continuous transcription work. Dr. Chason placed the Petitioner at MMI on April 7, 1998, with regard to psychological care, with a zero impairment rating. In a letter from Margaret Forehand dated August 12, 1996, a Personnel Technician II of ACI, Petitioner was informed that she was being placed on alternate duty. This letter outlined Petitioner's proposed work hours and took into consideration her need for reduced hours of typing and her need to visit her doctors. Petitioner, in response to this letter, declined to return to work. She had failed to report for work on August 15, 1996, and has been continuously absent since that date. Her sick leave was exhausted on October 4, 1996. Her Family Medical Leave Act benefits terminated on November 17, 1996. In a letter dated November 25, 1996, C. W. Sprouse, Superintendent of ACI, informed Petitioner that another position had been found for her and invited her to contact Ms. DeDe McMillian so that she could begin working. On or about December 10, 1996, Petitioner called Ms. McMillian and declined the offer. In a letter dated December 17, 1996, C.W. Sprouse informed Petitioner that a personnel action was being taken which could result in her dismissal. She was further informed that she was entitled to a predetermination conference. Petitioner did not request a predetermination conference and on January 3, 1997, her employment with ACI was terminated by Superintendent Sprouse. On May 26, 1998, a Judge of Compensation Claims entered an order adopting a stipulation between Petitioner, ACI, and the Florida Division of Risk Management whereby Petitioner received a lump sum of $50,000. The stipulation further recited that the stipulation resolved any and all issues regarding any aspect of the Petitioner's workers' compensation benefits.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2001. COPIES FURNISHED: Gary Bullard, Qualified Representative 805 Shelby Avenue Alford, Florida 32420 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether Vera Evans (Petitioner) was the subject of unlawful discrimination by Life Care Center of Altamonte Springs (Respondent) on the basis of disability, in violation of chapter 760, Florida Statutes.
Findings Of Fact Since 1977, and at all times material to this case, the Petitioner has been employed as a licensed practical nurse (LPN). In 2003, the Petitioner began her employment as an LPN with the Respondent in their skilled nursing unit, where she remained employed until her termination from employment on March 26, 2015. According to the formal job description adopted by the Respondent for its LPNs, persons employed as LPNs by the Respondent must “practice dependable, regular attendance” because the essential function of the LPN position is to provide patient care. The Respondent must insure that adequate staffing is available and present to provide such care. The failure of an LPN to be present for work and to be prepared to carry out the functions of the position increases the workload of other staff and can negatively affect patient care. The Respondent has adopted formal policies related to various forms of leave, including routine sick leave as well as extended requests for leave related to medical issues, such as Family Medical Leave Act (FMLA) leave. Additionally the Respondent’s formal policies encourage an employee to request an accommodation when medical impairments present challenges to the performance of the essential functions of an employee’s position. At the hearing, the Petitioner acknowledged that she was aware of the Respondent’s attendance and leave policies. The Petitioner previously requested and received a work accommodation in February 2014, when she was unable to work a full schedule due to a medical issue. In November 2014, the Petitioner took FMLA leave to address another medical issue. According to the documentation submitted by the Petitioner to the Respondent as part of her FLMA leave request, the period of the Petitioner’s incapacity was November 17, 2014, through February 28, 2015. The Petitioner requested and was granted 12 weeks of FMLA leave, which commenced on November 17, 2014. The end of the Petitioner’s 12-week FMLA leave period was February 9, 2015. The Respondent’s FMLA leave policy specifically provides that an employee must return to work on the next scheduled workday after the expiration of the leave period, unless the employee provides a doctor’s note and receives approval from the Respondent. The Respondent’s FMLA leave policy also requires an employee to periodically contact the Respondent during the leave period and report her status, including her intention to return to work. During the time that the Petitioner was on approved FMLA leave, the Petitioner failed to contact the Respondent to indicate when she would be available to return to work. Several times during the Petitioner’s absence, Jermaine Morris, the Respondent’s staffing coordinator, contacted the Respondent and attempted to determine when she would be able to return to work. Mr. Morris did so at the direction of Astrid Lopez, the Respondent’s Director of Human Resources. Mr. Morris’ attempts were unsuccessful because the Petitioner was unable to identify an anticipated return date during their conversations. The Petitioner’s approved FMLA leave expired on February 9, 2015, by which time the Petitioner had failed to communicate to the Respondent her intention to return to work. The Respondent’s adopted leave policy specifically requires that non-FMLA leave requests must be submitted in writing to the requesting employee’s immediate supervisor, and must state the purpose of the request and the proposed dates of absence. Although the Petitioner had not filed a written request for additional leave or submitted the required documentation prior to the expiration of her FMLA leave, the Respondent granted non-FMLA leave to the Petitioner when the Petitioner did not return to work. At the same time, Ms. Lopez also placed the Petitioner on an “as needed” work status (also known as “PRN” status). The PRN classification allowed the Petitioner to remain on the Respondent’s employment roster and required only that she work a single shift during a 60-day period. The Respondent’s leave policy provides that non-FMLA leave is limited to no more than six weeks. Accordingly, the Petitioner’s non-FMLA leave period continued through March 26, 2015. Ms. Lopez testified that, despite the Petitioner’s failure to submit a written request for non-FMLA leave policy, she decided to grant non-FMLA leave because the Petitioner was a valued employee of the Respondent. The Petitioner never submitted a written request for non-FMLA leave, but apparently after Ms. Lopez had already approved the non-FMLA leave, the Petitioner had a doctor’s note delivered to the Respondent. After the Petitioner filed her complaint of discrimination with the FCHR, the Respondent, in preparing to respond to the Petitioner’s complaint, located a note in the Petitioner’s personnel file, purportedly written by a physician on a prescription pad and signed February 19, 2015. The note indicated that the Petitioner would require an additional three months of leave. The Petitioner’s approved FMLA leave had expired prior to the date of the note. For reasons that are unclear, the note was never delivered to Ms. Lopez for her review. Ms. Lopez had approved the non-FMLA leave for the Petitioner prior to the date of the note. The Petitioner never contacted anyone in the Human Resources office to follow-up on the note, and apparently assumed that an additional three months of leave had been approved. The Respondent’s failure to respond to the note was inadvertent. Had the Petitioner actually submitted a written request for non-FMLA leave as required by the Respondent’s policy, the Respondent would have been made aware of the note. There is no evidence that the Respondent’s failure to respond to the note was purposeful or discriminatory against the Petitioner. The Respondent’s leave policy also sets forth the procedure and timelines by which the benefits of an employee on non-FMLA leave are suspended and a COBRA insurance notice issued. The Petitioner’s benefits were suspended and she received a timely COBRA insurance notice as provided by the policy. On March 26, 2015, at the conclusion of the approved non-FMLA leave period, the Respondent terminated the Petitioner’s employment. Prior to the termination, the Petitioner had failed to work a single shift as required by her PRN classification. Moreover, the Petitioner had failed to comply with state- mandatory LPN training requirements that had been imposed prior to the termination date. The Petitioner offered no evidence at the hearing that the Respondent’s decision to terminate her employment was at all related to disability. To the contrary, the Respondent approved the leave requested by the Petitioner, and in fact, granted additional leave to the Petitioner, without her request, so that she remained on the Respondent’s roster of employees. There is no evidence that the Respondent failed to provide any disability-related accommodation requested by the Petitioner. At the hearing, the Petitioner testified that she was not interested in returning to work for the Respondent.
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 the Petitioner's complaint of discrimination. DONE AND ENTERED this 18th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 May, 2016.
The Issue The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997. In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned. In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida. Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service. In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing. By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay." In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business. In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive. On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003. On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen. On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks. On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The doctor's note stated that Petitioner would not be able to work for six weeks. On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone. Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida. Petitioner was Respondent's only secretary in Port St. Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there. During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation. In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position. Petitioner's medical excuse expired on May 8, 2003. Petitioner did not return to work or provide Respondent with further medical documentation. On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse. Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent. Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month. Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis. Respondent's attendance and leave policy states as follows in relevant part: STATEMENTS OF POLICY * * * The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence. * * * (b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office. * * * 3.14 FAMILY AND MEDICAL LEAVE In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition. Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave. * * * (4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status. * * * (7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as well as certification of an employee's fitness to return to work. From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Herman D. Laramore, Esquire Public Defender, Fourteenth Circuit Jackson County Courthouse Post Office Box 636 Marianna, Florida 32447 Christian C. Griggs 130 25th Avenue Apalachicola, Florida 32320
The Issue The issue for determination is whether the Western and Southern Financial Group (Respondent), violated the Florida Civil Rights Act of 1992 (FCRA) in terminating employment of Stephen Howe (Petitioner) without reasonable accommodation. § 760.10, Fla. Stat.
Findings Of Fact Respondent is the Western and Southern Life Insurance Company, a subsidiary of Cincinnati-based Western & Southern Financial Group Inc. Respondent is a home service company that requires sales representatives to call on policy holders on a regular basis for sales and service. The district sales office in Pensacola, Florida, is one of 181 sales offices headed by a district sales manager. Jim Swaim served as the district sales manager for Respondent’s Pensacola Office from August 5, 2002 until November 3, 2003. Petitioner Stephen Howe became a Western and Southern sales representative on January 25, 1993, compensated pursuant to a Sales Representative Agreement of that same date, inclusive of the incorporated Sales Representative Schedule of Commissions, setting forth his compensation schedule and job duties. He intermittently served as a sales manager, but voluntarily became a sales representative pursuant to a Sales Representative Agreement dated June 28, 1999. He remained a sales representative until his termination on February 3, 2003. Petitioner was admitted to the hospital and therefore absent from work beginning August 28, 2002, due to an unrelenting headache and elevated blood pressure. The conditions cited by Petitioner's physician were sleep apnea and pheochromocytoma (pheo), which is a tumor on the adrenal gland that causes excess adrenaline production. Treatment for pheo usually takes four to five weeks, and is conducted on an outpatient basis. Petitioner’s disability was documented in September 2002, by Dr. Shawbilz, a neurologist, who reported at that time to Respondent personnel and described Petitioner’s dizziness, syncope and headaches. It was noted that Petitioner could not drive at that time due to obstructive sleep apnea, syncope and headache. Petitioner's family doctor, Dr. Mayeaux, prepared a report to Respondent on October, 2002, defining Petitioner's condition as serious and “requiring a period of incapacity from work and subsequent treatment”. Petitioner’s condition included high blood pressure, syncope, tremor, diaphoresis and palpitations. On October 2 and 8, 2002, Dr. Mayeaux sent a letter to Lori Mitchell, a registered nurse and the head of the Benefits Department of Respondent, outlining Petitioner's severe uncontrolled hypertension and a rare debilitating adrenal tumor. The doctor did not feel Petitioner should be working at that time. Later, in further correspondence dated October 28, 2002, Dr. Mayeaux opined Petitioner should not operate a motor vehicle at that time. On November 18, 2002, Dr. Mayeaux forwarded another letter to Respondent's benefit department outlining additional concerns about Petitioner’s syncope, chest pain, palpitations, diaphoresis, and disability to perform meaningful work or drive. On December 19, 2002, Dr. Mayeaux forwarded another letter to Respondent noting the now determined severe sleep apnea of Petitioner as a basis for daytime somnolence and drop attack/syncope. He again opined that Petitioner needed surgical relief from ear, nose and throat (ENT) issues to address sleep apnea prior to return to work. Respondent initially denied insurance for the surgery to address these issues while also denying Petitioner’s disability insurance claim. On December 30, 2002, Dr. Mayeaux again wrote to Lori Mitchell and noted Petitioner’s additional adrenal gland tumor. He opined, "[Petitioner] may not work until these problems have been satisfactorily resolved." On January 23, 2003, Mayeaux again wrote to Respondent’s Benefits Department continuing his disability opinions and noting, "aggressive surgical evaluation and intervention is underway at this time." Petitioner’s blood pressure continued to be labile and uncontrollable, but Mayeaux hoped to control this with surgery for Petitioner’s tumor. Sleep apnea, another of Petitioner’s disabilities, exists when a sleeping person experiences episodes where the individual is without breath. Petitioner did not respond well to the non-surgical treatment for this disorder, in which a machine is used to force air into the sleeping person’s breathing passages. The machine is called a “C-PAP”. Such treatment was prescribed for Petitioner without the best of success. Mayeaux hoped future surgery for the sleep apnea would help Petitioner’s severe case of this disorder by enlarging Petitioner’s breathing airway. The sleep apnea symptoms would have prevented him from driving in the course of his work. Petitioner’s wife observed Petitioner’s condition worsening beginning around August 2, 2002, when Petitioner would come home once or twice a day while working to take a nap. The tumor on Petitioner’s adrenal glands substantially limited major life-sustaining activities. As established by deposition testimony of Dr. Mayeaux, hormones secreted by Petitioner’s adrenal glands were affected by the tumor on his adrenal glands. There was evidence in Petitioner’s blood of over-production of adrenaline, with a by-product being excessive production of epinephrine. That he considered this to be a substantially limiting factor is one reason Mayeaux opined that Petitioner should not be working in his then-existing condition. Deposition testimony of Lori Mitchell establishes that she wrote a letter to Petitioner on September 9, 2002, requesting disability information for short-term disability. Subsequently, she sent a letter to Petitioner approving disability beginning September 13, 2002 Per Petitioner’s medical release provided to her, she had the ability to consult with Dr. Mayeaux. Mitchell was aware of all information received from Dr. Mayeaux. Mitchell was aware that Respondent's Family Medical Leave Act (FMLA) Department sent Petitioner a letter telling him that his absence of August 28, 2002, through October 8, 2002, was recorded as a "serious health condition." She also knew short-term disability was authorized for Petitioner through her department for the period ending October 8, 2002, following a review of his medical records. Short Term Disability is defined under Respondent's plan for associates "who are regularly unable to per form normal duties of their regular occupation due to sickness or injury." Mitchell was also aware of the "pheo" tumor, which can develop on an individual’s adrenal glands. She understood Dr. Mayeaux’s letter to her describing the tumor in Petitioner’s case as "debilitating" to mean "impairing him." She understood Dr. Mayeaux's letter of October 10, 2002, to her to mean Petitioner was prevented "from performing his daily activities" by his symptoms. Mitchell’s supervisor, Noreen Hayes, explained that the approval of the extension of short-term disability benefits through November 30, 2002, was based on "all doctor's notes associated with [Petitioner’s] condition." Mitchell was familiar with Dr Mayeaux's December 5, 2002 letter concerning the sleep apnea and breathing issues of Petitioner, as well as other letters from Mayeaux on December 30, 2002, and January 23, 2003. She identified a Respondent Medical Leave of Absence form executed on December 12, 2002, where his doctor opined Petitioner had "a serious health condition that makes you unable to perform the essential functions of your job" and that the condition would continue until rectified. Dr. Terrell Clark is Respondent's Vice President and Medical Director. He recalled information received regarding high blood pressure and sleep apnea to "evaluate what time might be appropriate for [Petitioner’s] disability." He was also aware of a concern for brain problems due to Petitioner’s head CT scan. He was aware of the "pheo" tumor diagnosis on Petitioner’s adrenal gland and resultant production of abnormal hormones. He also agreed that the condition was very treatable. He also was acquainted with the correspondence of Dr. Mayeaux on Petitioner’s behalf. Dr. Mayeaux opined it would be possible for Petitioner to have performed an office-type job that did not require driving. His ability to provide service to his clients was otherwise unimpaired. During August, 2002 to February, 2003, Petitioner was in constant contact with Respondent personnel and his clients by phone. In the words of Karen Howe, "he was always on the phone" until the end of his employment. The phone was part of his normal job activity. During this same time, Petitioner filled out all his clients’ paperwork and paperwork for their families in regard to financial matters. He was also able to give advice to clients as he always had. There are clerical positions in the field offices of Respondent. In Cincinnati, Ohio, Respondent has hundreds of clerical positions that do not require driving as an essential function of the job. The company has 1,900 clerical sedentary positions. Most of these do not require driving. Dr Mayeaux sent a letter to Respondent dated January 30, 2003, stating that Petitioner could return to work so long as he did not drive. He also told Petitioner earlier that he could work if someone else drove. No direct credible evidence was presented that having Petitioner's wife drive him would not result in a reasonable accommodation for Petitioner. The company does not insure the vehicle Petitioner drove as part of his work. There is also no direct credible evidence that Respondent required Petitioner to be covered with insurance over and above what he and his wife ordinarily carried on their vehicle. No evidence was presented assailing the driving abilities of Petitioner’s wife. Petitioner's job did not require that he drive at any certain time. His wife often rode with her husband while he was meeting with his clients or Respondent personnel during the years of his employment. She routinely went by the local office, saw his manager, and no one ever objected to her riding with Petitioner. Petitioner’s wife asked his district manager, on her husband’s behalf, three or four times if she could drive her husband after he was told by his doctor not to drive. Her requests were denied. She was willing to do this without pay, with the vehicle he customarily used, that they both owned, and kept well insured. She drove him to his last day at work where, when informed that he was fired, he cried. Thomas Johnson is the company vice president responsible for administering Respondent’s leave-of-absence policy. Respondent personnel monitor when an employee "can return to work.” Johnson initially received a form noting Petitioner began his leave of absence as a result of illness on August 28, 2002. Johnson receives information from a Respondent committee that meets to discuss whether to allow accommodations for injured employees. Pursuant to the committee’s action, Johnson notified Petitioner that Short Term Disability was approved through November 30, 2002. Johnson wrote a letter on January 23, 2003, to Petitioner to return to work on full-duty status on February 2, 2003, or be terminated. This letter was based on a meeting of his department’s medical and legal personnel. At the meeting, which resulted in Johnson’s letter to Petitioner, all of those in attendance decided not to accommodate Petitioner. At that meeting they never discussed restructuring or modifying Petitioner’s position or reassigning him, even though the only restriction Johnson was aware of was the restriction on Petitioner’s driving. At that meeting, they did discuss time for Petitioner to provide medical information in regard to Petitioner’s fitness to return to work. As a result of the denial by the committee of further Short Term Disability Leave, Petitioner's right to a further leave of absence ended, absent a "fitness for duty" report. Johnson informed Petitioner of the Respondent committee’s action by another letter dated January 27, 2003, sent from Cincinnati, Ohio, to Petitioner in Pensacola, Florida, through regular post office mail to a numbered post office box. Per that letter, Johnson required that Petitioner have the requisite fitness for duty report by February 3, 2003, or be terminated. Petitioner was not provided the appropriate form for the report as part of this communication and he was not given any time to obtain the information, yet he was terminated for not having it. Johnson instructed Petitioner's District Manager on February 3, 2003, that Petitioner could not work that day because of "unauthorized leave of absence". Johnson sent a letter on February 3, 2003, terminating Petitioner. The clause Johnson used to terminate Petitioner was "absence for two days without notice." Johnson received a letter from Dr. Mayeaux dated January 30, 2003, after he had sent his February 3, 2003 letter to Petitioner. Mayeaux’s letter stated that Petitioner could work as long as he did not drive. Petitioner showed up for work on February 3, 2003, with only the letter of January 23, 2003. The employment agreement provided by Respondent to Petitioner does not spell out what medical evidence is to be provided to prevent application of the "unauthorized leave of absence" clause used to terminate Petitioner. By company policy, there is no right for an unpaid leave of absence because of a disability claim. Johnson was fully informed and received regular information from Lori Mitchell regarding Petitioner’s condition as reported by his doctors to her. When an employee such as Petitioner is absent from the office, this fact is reported to Respondent’s home offices without notice to the affected employee. Dean Vonderheide is the director of Respondent’s benefit department. His testimony establishes that the Summary Plan Description given to Respondent employees for Short Term Disability provides no information regarding where an employee can get the forms to file claims. A terminated employee is not entitled to long-term disability benefits. Neither Lori Mitchell, R.N.; vice president Dr. Clark; or vice president Johnson made any effort to contact Petitioner or his doctor to supplement or add to what was included by Dr. Mayeaux in his correspondence dated January 30, 2003. Petitioner was wrongfully terminated by Respondent on the basis of Petitioner’s disability without fair consideration by Respondent of Petitioner’s request for accommodation, i.e. , that his wife be permitted to chauffer Petitioner in the course of his continued employment or that alternative employment for Petitioner within Respondent’s company be considered by Respondent. Such provision had been made for a former salesperson of Respondent. Petitioner lost wages from his termination of employment with Respondent up and through his death on July 6, 2003. The income tax records in evidence show that Respondent paid Petitioner a total of $42,057.09 in the taxable year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 16th day of November, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2005. COPIES FURNISHED: Daniel Stewart, Esquire 4519 Highway 90 Pace, Florida 32571 Alice M. Fitzgerald, Esquire Western & Southern Financial Group 400 Broadway Cincinnati, Ohio 45202-3341 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue Petitioner, a former employee of Respondent School Board, has alleged that the Respondent violated section 760.10, F.S., by discriminating against him based on his handicap. The basic issue is whether that violation occurred and if so, what relief is appropriate. However, in this protracted proceeding various ancillary issues have been raised and also require disposition. Those issues include: Whether Petitioner's claim of discrimination based on failure to hire was timely; whether Petitioner may also claim discrimination based on wrongful termination or is that claim time-barred; whether evidence of Petitioner's criminal history, acquired by Respondent during the pendency of the proceeding and after the alleged discrimination, is relevant in the proceeding and, if so, whether it is a bar to, or simple limitation on relief; and whether Petitioner's motion to proceed anonymously, filed after the evidentiary hearing, should be granted.
Findings Of Fact Petitioner (Sanford) was first hired as a bus driver by the school board on February 8, 1968, and became an operations administrative assistant on October 1, 1982. As bus driver, and in the early years as an administrative assistant, he received above average, outstanding or (after the evaluation form changed) satisfactory performance ratings. In 1986 Sanford was supervised by the operations chief, Geraldine Hanna. Ms. Hanna initially felt fortunate at having an administrative assistant, but after three or four weeks she had major concerns about his job performance. Sanford required excessive supervision to complete a task; there were errors, and the tasks were not being completed within deadlines. She observed his frustration and inappropriate language over the air and within the dispatch office. The school board had recently initiated an employee assistance program (EAP), and suspecting "something was wrong", Ms. Hanna referred Sanford to the program. Although she never smelled alcohol or observed the employee stumbling or staggering, Hanna felt Sanford had some type of substance abuse problem and told him that she suspected something was going on. The first EAP referral was made through Dave Wofford, Director of Transportation, to Scott Diebler, Senior Manager for the Orange County School Board's EAP. Wofford was considered a "hard-nosed" supervisor, but Scott Diebler felt that he went further with Sanford than normally because of Sanford's long prior excellent record of performance. Sanford was referred again to the EAP, directly by Hanna, in fall 1986 or spring 1987, as the performance problems persisted. These performance problems are detailed in a classified evaluation report dated 4/10/87 and signed by both Gary Sanford and Geraldine Hanna. A narrative attachment to the report cites examples and concludes: The recited examples give evidence of [Sanford's] inability to complete duties in a timely, effective and organized manner. He demonstrates no initiative in the performance of his duties and cannot work without supervision. His lack of proper documentation and follow-through have resulted in frustration on the part of the management staff. (Respondent's Ex. #8) Scott Diebler met with Sanford and his supervisors and arranged to have Sanford evaluated by outside professionals with whom the program contracted for services. At some point, Hanna and Sanford met together with a counsellor. Sanford's initial symptoms were typical of emotional and mental health problems; there were mood swings, hyperactivity and excitability. Shortly after several different professional opinions were obtained, Diebler determined that the primary presenting problem was chemical dependency (alcohol, marijuana and cocaine) and that there were secondary emotional problems. Sanford admits that in 1986 and 1987 he would go home after getting off work at 2:30 p.m. and would drink until he fell asleep. He denies ever drinking on the job. Beginning in September 1986 Sanford was treated by an EAP service provider, Psychological Service Associates, through Recovery Alternatives, Inc. (RAI). He completed Phase I of outpatient intensive group and individual therapy and was transferred to Phase II, which included Alcoholics Anonymous meetings. There is no evidence that Sanford successfully completed Phase II. The treatment he received temporarily alleviated, but in no way "cured" his addiction. According to competent expert witnesses, alcoholism as a disease is never cured. In a proper recovery program and with proper motivation, an individual may recover and arrest the disease. At times throughout his history at the EAP Sanford abstained and showed some progress toward recovery. He also experienced periods of relapse, with no progress. Sanford attended some AA meetings in 1987, but not enough to help. At that stage he was still in "denial" and tended to blame others for his problems. When the performance problems in the Department of Transportation did not improve and Sanford was headed for a "disciplinary scenario", as observed by Scott Diebler, the EAP helped Sanford find a transfer to another department. The idea was that if the performance problems were the result of a personality conflict, a transfer would resolve the conflict. Richard Staples was senior administrator for warehouse and distribution in 1988, when he agreed to accept Sanford for transfer to a courier position with the understanding that Sanford would follow through with his offered assistance through EAP. Sanford's performance improved for a time, and on March 11, 1988, Staples evaluated him as "satisfactory", with "excellent" ratings in dependability, adaptability and attitude. By May 1989, performance deteriorated, and primarily because of attendance problems, Staples referred Sanford back to Scott Diebler and the EAP. Diebler acknowledged the referral with a memo to Staples informing him that Sanford was referred to an outpatient program at Florida Psychiatric Associates. On July 10, 1989, Sanford was absent without authorization during assigned work hours despite having been warned in May that he was to notify Staples personally with regard to any need for absence from the worksite. Staples sent Sanford a written confirmation of their July 13, 1989 meeting regarding the absence, with a warning that reoccurrence would result in a one- week suspension without pay. Sanford admits that the July 10th absence was related to his drinking. He was drinking heavily daily after work and was using cocaine on weekends during this period. He does not know how much alcohol he consumed, but as before, he drank steadily from the time he came home from work until he passed out. On July 17, 1989, someone who identified herself as a parent of an Oak Hill Elementary School child telephoned the mailroom of the courier department and informed Richard Sanders, the relief courier driver helping the mail clerk, that an Orange County School Board courier was drunk and stumbling and falling into the truck. The message was given to Richard Staples. Oak Hill was on Sanford's route. Staples checked Sanford's route schedule and had his secretary call the next two schools to tell Sanford to stay where he was and call Staples' office. Staples then took a relief driver and another administrator, Steve Wind, and found Sanford at West Orange High School, waiting as instructed. While Sanford was waiting for Staples he called Staples' secretary twice, each time talking incoherently and very upset. She kept telling him he had to wait at the school for Staples. When Staples found him waiting at the school lobby, Sanford's demeanor was lethargic and he did not appear to have himself under control. Steve Wind observed Sanford's speech as slurred and his eyes were glassy. He was unsteady, but not staggering. Staples drove Sanford to his house, with Wind in the backseat, and the relief driver finished the route. Sanford asked Staples to take him to the warehouse so he could get his car, but Staples told him that he did not want him driving in his condition. Staples asked several times if Sanford wanted to stop by a clinic on the way home. Sanford said, no. Several times Sanford asked what was going to happen and was he going to be fired. Staples said he did not know, and was only concerned about Sanford getting home. Sanford cried. After taking Sanford home, Staples explained the incident to John Hawco, the school board's senior manager of employee relations. Staples also sent a letter to Sanford, dated July 18, 1989, informing him that he was relieved of duty with pay, pending an investigation into the events of July 17th, and notifying him that a meeting which could result in disciplinary action would be scheduled in the near future. The collective bargaining agreement which covered Sanford as a courier driver provides that an employee may be suspended without pay or dismissed for conviction of any crime involving moral turpitude, drunkenness, gross insubordination, immorality, misconduct in office, willful neglect of duty, or continued failure to satisfactorily meet performance standards for the job. The agreement provides for a pretermination meeting at which the employee may be represented and is given the opportunity to explain the facts and provide other witnesses or sources of information. The pretermination meeting was scheduled for July 20th, but was cancelled because Sanford overdosed on alcohol and cocaine and was temporarily hospitalized. The meeting was held on August 1, 1989. At the meeting, Sanford denied being under the influence on July 17th, but also apologized for what had happened. Sanford was accompanied by a union representative. Staples and Hawco discussed the options and rejected the possibility of moving Sanford to another position. They considered his history of chemical abuse and failure to comply with EAP recommendations. They told Sanford that he would be terminated and urged him to obtain treatment. Hawco advised Sanford that he could resign his position or seek retirement, if eligible, and gave him three days to come to a decision, at which time his employment would be terminated. On August 3, 1989, Hawco was contacted by a staff person in the EAP who advised that Sanford had entered a treatment program. Scott Diebler worked out an arrangement for Sanford's termination to be delayed briefly to give him the benefit of insurance during his detoxification and initial treatment. Hawco's decision to terminate Sanford was based on his determination that Sanford was operating a county vehicle while under the influence, which under the School Board's policy is a termination offense. This, coupled with Sanford's past performance, was the basis for the termination, and not his status as an alcoholic. The termination notice to Gary Sanford from John Hawco is dated August 18, 1989, and informs him that the effective date of termination was August 17, 1989. By this time, Sanford was in a 35-day inpatient treatment program at Cross Roads treatment center. His mother brought him the termination notice on her first visiting day in August, the Sunday after the notice arrived. Because he was not able to have contact with outside persons during the initial stage of his treatment, Sanford asked his mother to call Scott Diebler. She did, and he told her that they could discuss rehire after Gary Sanford was successfully treated, in about six months. No one from the school board informed Sanford or his treatment facility that Sanford had not been terminated or that Sanford would automatically be rehired upon completion of a treatment program. Before termination, Scott Diebler had argued for a "last chance" contract for Sanford, to give him one final chance to be successfully rehabilitated; but the request was denied with an explanation and apology that the job problems had been too severe and there had already been many opportunities to get help. After termination, Diebler got a report from the treatment center implying that Sanford was on a leave of absence. He attempted to assure that the center was properly informed, as there were insurance implications. That is, the first 30 days were covered through the EAP or board's insurance, but thereafter Sanford was responsible. Diebler also assured himself by checking with John Hawco and the union representative that Gary Sanford understood from the August 1st meeting that his employment was to be terminated. Diebler had some contact with Sanford during treatment at Cross Roads and assured him that he could reapply after six months. At some point, Diebler sent him an employment application. Sanford completed the intensive inpatient program and stayed on at Cross Roads for another six to eight months. After the thirty-five day program was completed, he resided in the half-way house and worked various jobs such as Texaco and a dinner cruise ship. He no longer drinks and he attends AA meetings regularly. He has remained employed. In February 1990, Sanford went to see John Hawco at the school board and said he had completed six months successful treatment. Sanford told Hawco that he understood he could get his job back; he also said he wanted payment for his accrued sick leave, which was approximately 1,176 hours at the time of his termination. Hawco reminded him that because he was involuntarily terminated, he was not entitled to accrued leave. Sanford did not specifically ask for his job back and said he wanted the terminal pay (approximately $12,000) in order to get a new start. The non-eligibility for terminal pay was reiterated in writing by John Hawco to Gary Sanford in a letter dated October 1, 1990, in response to a letter Sanford had sent to the assistant superintendent. Sanford never put in an application to be rehired by the school board, contrary to Diebler's earlier advice. Sanford initially contacted the Florida Commission on Human Relations in April 1990, with regard to filing a charge of handicap discrimination. He was advised that his charge was untimely, based apparently on his termination date of August 1989. He later recontacted the commission to complain and was permitted to file his charge on March 12, 1991, based on denial of rehiring, allegedly occurring on February 2, 1990. (Petitioner's Ex. #18) This is the charge which initiated this proceeding. At some point after the charge and petition for relief were filed, and before the formal hearing, the school board requested a criminal record background check on Gary Sanford and uncovered the following: a) On July 16, 1984, after a plea of guilty to driving under the influence (DUI), Sanford was adjudicated guilty, placed on probation, fined, and sentenced to 50 hours community service with a driver's license suspension of six months; b) On October 14, 1988, after a plea of guilty to exposure of sexual organs (in a booth in an adult entertainment center), Sanford's adjudication was withheld and he was placed on unsupervised probation for one year under the condition that he not return to an adult entertainment establishment; c) On August 28, 1990, after a plea of nolo contendere to the misdemeanor of lewdness (soliciting a police agent in a park restroom), Sanford was adjudicated guilty, and was placed on supervised probation with conditions that he participate in substance abuse counselling/screening and would not return to any Orange County park; and d) On August 28, 1991, after a plea of guilty of being in a park after hours, Sanford was adjudicated guilty and sentenced to time served only. (Respondent's composite Ex. #2) On 1/25/85, 1/28/86 and 3/16/87, Sanford filed his forms, "Florida Department of Education Application for License to Drive School Bus and Physical Examination for School Bus Driver Applicant". These were renewal applications as the form indicates that a license to drive a school bus is valid for no more than 12 months from issue date. On each of these forms, Sanford answered "no", and certified his answers to be correct, to questions of whether he had been convicted of a misdemeanor or felony in the last three years and whether his driver's license had been suspended or revoked during the last three years. (Respondent's composite Ex. #3) The Orange County School Board requires Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) fingerprints and screening of all employees, upon hire, including former employees with a greater than 90-day break in service (separation from employment). Since approximately 1991, the school board has notified law enforcement agencies to advise the board any time a student or employee is arrested for a felony or misdemeanor. Upon receipt of the screening report or arrest report, the employee is given an opportunity to provide court records and explanations surrounding the incident. Board staff, including representatives of personnel and employee relations and the equal employment opportunity office, review the information for recommendation to the Superintendent. These reviews are also conducted for applicants for employment. Any time an employee is found to have falsified an application with respect to criminal background, staff recommends termination. Any time an applicant for a position to drive a vehicle is found with a DUI, that applicant is not recommended for consideration to be employed. If Sanford had actually applied for rehire in 1990, his 1984 and 1988 offenses would have been revealed in the employment screening. The DUI, the "Pee-Wee Herman" offense, and the falsification of his school bus licensure applications would have made him ineligible for further employment under the board's policy. If he had not been terminated, those offenses, and the misdemeanor incidents in 1990 and 1991 would likely not have been discovered by the board, since they predated the notification arrangement the board now has with local law enforcement agencies. SUMMARY OF FINDINGS As an alcoholic and substance abuser, Sanford was handicapped. His drinking and substance abuse interfered with his proper performance of his job duties on occasion. He was referred to the EAP and received assistance; he had a dozen major contacts with the EAP, not including telephone calls and correspondence, from 1986 to 1989. Although he did not receive inpatient treatment until the time of his termination, such treatment was not requested by Sanford, nor is there any evidence that earlier inpatient treatment was recommended by the professionals who were under contract with the EAP and who had worked with Sanford since 1986. John Hawco's termination decision was based on Sanford's employment record and performance at work, rather than on his handicap. Sanford was informed of the decision in August 1989, in a meeting which he attended with his union representative, and later, in writing, when his mother brought him the termination letter. No one, not even Scott Diebler, his most partisan supporter, promised Sanford that he would be rehired. Sanford did not follow Diebler's advice about applying for re- employment. Instead, he contacted Hawco in February 1990, and was told that he would not be rehired by the school board at that time. (Respondent's exhibit #13) Even if he had formally applied for employment, Sanford's prior convictions and falsification of his application would have barred re- employment, according to established school board policy.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a Final Order be entered dismissing Gary Lee Sanford's complaint and petition for relief. DONE AND RECOMMENDED this 19th day of April, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6332 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. - 4. Adopted in substance in paragraph 1. 5. - 6. Adopted in substance in paragraph 2. Adopted in substance in paragraphs 3 and 4. Adopted in substance in paragraph 3. Rejected as unnecessary. Adopted by implication in paragraph 10. Adopted in paragraph 7. Rejected as contrary to the weight of evidence. On July 17th he was intoxicated on the job. Adopted in substance in paragraphs 8 and 9. Adopted in substance in part in paragraph 42; otherwise rejected as irrelevant and unnecessary. Adopted in paragraphs 12 and 13. 17. & 18. Adopted in substance in paragraph 13. Adopted in part in paragraph 14; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 13; otherwise rejected as unnecessary. & 23. Adopted in paragraph 15. Rejected as unnecessary. The proposed findings are not inconsistent with the fact that Sanford was under the influence at some point on his route. Adopted in part in paragraph 17; otherwise rejected as immaterial and unnecessary. & 27. Rejected as unnecessary. 28. Adopted in part in paragraph 18; otherwise rejected as immaterial. 29.-31. Rejected as immaterial. Adopted in paragraph 18. Adopted in part in paragraph 19, otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 20, otherwise rejected as contrary to the weight of evidence. Adopted in substance in paragraph 21. Adopted by implication in paragraph 21. Adopted in paragraphs 22 and 25. Adopted in paragraph 25. Adopted in substance in paragraph 30. Adopted in substance in paragraphs 24 and 28. Adopted in substance in paragraph 33. Rejected as unnecessary. Rejected as immaterial; see paragraph 42. Adopted in paragraph 33. Adopted in paragraph 34. Rejected as contrary to the weight of evidence (as to Diebler's changing his story). Adopted in substance in paragraph 34. & 49. Adopted in substance in paragraph 35. 50. Adopted in paragraph 33. Respondent's Proposed Findings Adopted in substance in paragraph 1. Adopted in substance in paragraph 2. Rejected as unnecessary. Adopted in paragraph 4. Rejected as unnecessary. Adopted in paragraph 6. - 9. Adopted in paragraph 8. 10.-11. Rejected as unnecessary. 12. & 13. Adopted in paragraph 5. 14.-16. Rejected as unnecessary or cumulative. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 13. & 21. Adopted in paragraph 15. Adopted in substance in paragraph 15. Adopted in paragraph 13. & 26. Rejected as unnecessary. Adopted in paragraph 9. Adopted in paragraph 16. Rejected as unnecessary. & 31. Adopted in paragraph 16. 32.-34. Adopted in paragraph 17. 35.-36. Rejected as unnecessary. Adopted in paragraph 18. Adopted in paragraph 19. 39.-41. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Rejected as unnecessary. 44.-46. Adopted in substance in paragraph 21. 47. Adopted in paragraph 22. 48.-50. Rejected as unnecessary. 51. & 52. Adopted in paragraph 23. Adopted in paragraph 24. Adopted in part in paragraph 25, otherwise rejected as contrary to the evidence. (He denied being under the influence.) & 56. Adopted in substance in paragraphs 25 and 27. Adopted in paragraph 26. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 32. 62.-65. Adopted in paragraph 34. Adopted in paragraph 38. Adopted by implication in paragraph 41. 68.-72. Rejected as unnecessary. 73.-75. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 36. Adopted by implication in paragraph 37. Adopted in paragraph 40. Adopted in paragraph 41. 81.-83 Rejected as unnecessary. 84. Rejected as unnecessary. Further, the hearing officer denied Respondent's request to take official recognition of the weather reports. That denial is based on failure to comply with notice requirement of Section 90.203, F.S. and the unreliability of the report in establishing the fact that Respondent was attempting to establish: that it did not rain in Orlando on a given day. 85.-88. Rejected as unnecessary. 89. Adopted in paragraph 42. 90.-91. Rejected as unnecessary; except that the ultimate fact of the reason for termination is adopted in paragraph 43. COPIES FURNISHED: Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Frank C. Kruppenbacher, Esquire 545 Delaney Avenue, Suite 8 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 315 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate. Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.
Findings Of Fact In their joint prehearing statement, filed at hearing, the parties stipulated to the following: During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4) The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987. The Petitioner delivered a child on September 10, 1987. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987. Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.) Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G- 3, P-1, who had a natural delivery in 1981 with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.) Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that: It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied) We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.) By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows: In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith, my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding. Presently, she is doing well and I feel that under the circumstances she has approximately 5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.) On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1989. COPIES FURNISHED: Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037 Edward H. Feege, Esquire Post Office Box 2165 Lehigh Valley, PA 18001-2165 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern whether the Petitioner was discriminatorily discharged because of her race and purported disability.
Findings Of Fact The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999. On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however. A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007, informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment." There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave. On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave. The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007. Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date. On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy. As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days. The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner. The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of discretionary leave voluntarily granted to her by the Respondent. The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment. Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to work for a reasonable period of time after exhaustion of FMLA leave. Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
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 subject petition in its entirety. DONE AND ENTERED this 10th day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2009. COPIES FURNISHED: John J. Marino, Esquire McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 James N. Foster McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 Tricia Dubose 1349 43rd Ensley Street Birmingham, Alabama 35208 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
