Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of $1,000.00 be imposed. Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX (Case No. 87-1377) The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below: 2. Last sentence rejected as immaterial. 5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS. COPIES FURNISHED: Gaye Reese, Esquire Office of Licensure and Certification 7827 N. Dale Mabry Hwy. Tampa, Florida 33614 Louis E. Smith 6060 Shore Blvd. South Gulfport, FL 33707 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about 1:00 p.m. on September 2, 1978, a Saturday, Deputy Reder from the Hillsborough County Sheriff's Office went to the "Sweet Magnolia Boarding Home," a licensed adult congregate living facility (ACLF) operated by the petitioner, as a result of a call from either the petitioner's daughter or a relative of one of the residents. Upon his arrival, Deputy Reder found four elderly boarders or residents, petitioner's, fifteen or sixteen year old daughter and her female friend of about the same age. The petitioner's daughter and the residents were upset, but none of the residents needed emergency medical assistance. The relatives of the residents and the respondent were notified that the four residents were without adult supervision, and the residents were removed from the facility that day. On the Monday preceding Saturday, September 2, 1978, petitioner received a telephone call informing her that her husband had had an accident in Detroit, Michigan and had injured his back. Petitioner left Tampa on that day and flew to Detroit. It was her testimony that she left Mary Ann Cowley, who had worked for her for about one year, in charge of the "Sweet Magnolia Boarding Home" while she was gone. She further testified that she left approximately $700.00 with her fifteen or sixteen year old daughter to pay the rent and buy food for the residents during her absence. When she returned to the facility late Saturday night on September 2, 1978, no one was there and many of her belongings were gone. Petitioner did not contact the respondent regarding this incident. Her husband was not hospitalized for his back injury. On or about September 22, 1978, an administrative complaint against petitioner was filed by the respondent seeking to revoke her ACLF license. Having failed to respond to the complaint, respondent, on October 18, 1978, entered a "Judgment of Revocation of License" by default. Said judgment found that petitioner voluntarily discontinued operation of the facility without providing advance notice to respondent and without surrendering her license, that she left residents boarded at the home without adult supervision while she left the state and that a deputy reported that there was no food in the premises on September 2, 1978, and that the residents had not been fed for two days. Deputy Reder did not check the premises for food and one of the boarder's daughter did not hear her mother complain of being hungry on the day she removed her from the petitioner's facility. Petitioner testified that she never received the administrative complaint or notice that her ACLF license had been revoked. Petitioner applied for another ACLF license in March of 1980. Before this was processed, and in April of 1980, she was hospitalized for two or three days for elbow surgery and left her husband in charge of the unlicensed facility. Her husband had never assumed this responsibility in the past. On Monday, April 14, 1980, petitioner's husband prepared a bath for one of the residents who was approximately eighty-nine years old and frail, helped her into the bathtub and then left the bathroom to complete some chores in the kitchen. While he was gone, this elderly resident drowned in the bathtub. The incident was described in the police report as an "accidental death" and no charges were brought against petitioner or her husband. Respondent was not notified of the drowning incident until several weeks later. During this same general time period, from March through early July, 1980, negotiations were had between petitioner and respondent regarding her March application for ACLF licensure. Respondent's Aging and Adult Services Program Office had many concerns regarding the issuance of a license to petitioner, including the prior incidents of lack of supervision, inappropriate placements and the drowning incident. Respondent did not feel that a legal basis existed for denial of petitioner's application for licensure, so they offered her a compromise. Petitioner was told that if she removed her present residents, respondent would issue her a license and she could start over with more appropriate residents or boarders. On June 25, 1980, petitioner notified respondent that it was her decision to discontinue her operation as a boarding home and not accept the license to operate as an ACLF. By letter dated June 26, 1980, respondent notified petitioner that she had thirty days to remove the residents from her facility and that legal action would be brought against her if she reopened another unlicensed facility in Hillsborough or Manatee Counties. By letter dated July 3, 1980, respondent again informed petitioner that her decision not to accept the license was considered as final and that a license could not be issued to her at that time. On February 3, 1981, at approximately 3:00 p.m., employees of the respondent made an unannounced visit to petitioner's unlicensed facility. They found that petitioner was not on the premises and that the only people there were petitioner's father, approximately 70 years of age, and two elderly residents. One of the residents was in a hospital bed and was being fed by means of a tube down her throat. Respondent's employees remained on the premises for about 30 minutes and petitioner did not appear during this time. During the time of the unannounced visit by respondent's employees, petitioner had gone to the store. It was her testimony, which was corroborated by her father, that she had asked another person to stay at the facility while she went to the store. That other person was not there when petitioner returned from the store. Betty P. Steiger, R.N., who specializes in geriatric nursing, observed the tube-fed resident in petitioner's facility on February 4, 1981. She was described as an elderly black woman who was incontinent, unable to ambulate, incoherent and a candidate for round-the-clock skilled nursing care. An ACLF was not an appropriate placement for this person. Feeding tubes should be changed only by a registered nurse or a physician and a suction machine should be available in case of aspiration. Ms. Steiger did not observe a suction machine on the petitioner's premises. This tube-fed resident had been living in petitioner's facility for four or five months and had been tube-fed since her arrival. Petitioner is a licensed practical nurse. In February of 1981, she had no other employees. Petitioner again applied for an ACLF license on March 5, 1981. By letter dated May 14, 1981, she was notified by the respondent's Aging and Adult Services Program Office that her application was being denied for the following reasons: You have exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under your care. This is evidenced by the following: On October 18, 1978, your license to operate "Sweet Magnolia Boarding Home", an adult congregate living facility, was formally revoked due to your having left the boarders at the facility without any adult supervision during or about September, 1978 while you left the state. When discovered on September 2, 1978, the residents had not been fed for two days and there was no food on the premises. In April, 1980, an elderly resident at your unlicensed facility at 822 Whatley Place, Tampa, Florida, drowned in the bathtub while not receiving proper supervision. On or about February 3, 1981, a resident at your home at 822 Whatley Place, Tampa, Florida, was discovered by the Department's employees to be bedridden and to be in need of full time skilled nursing care. Said resident was being fed through a tube and such condition, without appropriate full time skilled nursing care, materially affected the health, safety, and welfare of said resident in that had such resident regurgitated, this resident, being elderly and very debilitated, would have been unable to clear herself and would have "drowned" in her own bodily fluids. Your retention of this resident, without ap- propriate full time skilled nursing care, constituted a disregard for her welfare. On or about February 3, 1981, employees of the Department made an unannounced visit to your unlicensed facility and discovered that you were not present and that you had not provided for adequate supervision of the residents. Besides the residents, the only person present was your elderly father who, due to his age and physical condition, could not provide safe and adequate supervision to the residents. The actions referred to in paragraphs 1(a) through (d) constitute intentional and/or negligent acts which seriously affected the health, safety, and/or welfare of residents of your facility and constitute grounds to deny your application for a license pursuant to section 400.414(2)(a), Florida Statutes (1980). Your physical plant is short one toilet and one sink. According to Rule 10A-5.11(3)(a)1, Florida Administra- tive Code, there must be a bathroom exclusively for the use of the residents. Since you fail to meet the minimum standards for Adult Congregate Living Facilities, your license is being denied on that basis also. The parties stipulated that petitioner's physical plant was short one bathroom. It was agreed that if all other bases for denial of the license were found to be without merit; petitioner would have 60 days to install a bathroom and, if completed, respondent would issue petitioner a license.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for an adult congregate living facility license be DENIED. Respectfully submitted and entered this 10th day of November, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1981. COPIES FURNISHED: Robert A. Warner, Esquire Caltgirone & Warner, P.A. 238 East Davis Boulevard, Suite I Davis Island Tampa, Florida 33606 Janice Sortor, Esquire District VI Assistant Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether the licensee, Robert Schmidt, should be subject to an administrative fine for failure to meet the background screening requirements at Dixie Lodge, an assisted living facility (hereinafter Respondent), and, if so, the amount.
Findings Of Fact The Agency for Health Care Administration (hereinafter the Agency) is the state agency responsible for the licensing and regulation of assisted living facilities. Respondent is licensed to operate as an assisted living facility in DeLand, Florida. Robert A. Cunningham was called as a witness for the Agency. Mr. Cunningham is a Health Facility Evaluator II. His duties include surveying assisted living facilities, adult family homes and adult day care centers. Mr. Cunningham testified that he was familiar with Dixie Lodge because he has been surveying this facility for approximately 15 years. On or about May 16, 2001, Mr. Cunningham conducted a complaint investigation of Dixie Lodge. Mr. Cunningham identified Petitioner's Exhibit One as a complaint investigation form. This contains a summary of his investigative findings. The last finding was that a care- giving employee, who did not meet the screening requirements, had been retained as an employee in a "contact" position. Mr. Cunningham identified Petitioner's Exhibit Two as a copy of the Agency's letter to the facility administrator outlining the findings of the complaint investigation. It states that the facility was in violation of Section 400.4174(2), Florida Statutes, and Rule 58A-5.019(3), Florida Administrative Code, regarding background screening on employees. The letter dated June 26, 2001, states that the inspection findings have been revised to reflect Tag A 1115, a Class II deficiency, as the result of an amendment in the law, effective May 15, 2001. Mr. Cunningham identified Petitioner's Exhibit Three as a copy of the recommendation for sanction inspection report narrative of the inspection conducted on May 16, 2001. Mr. Cunningham testified that the recommendation for sanction was prepared by Robert Dickson, a Facility Evaluator Supervisor in the area office. Mr. Robert Dickson was called as a witness for the Agency. His duties included supervising the field surveyors, who conduct the surveys of the licensed facilities, and reviewing and approving the survey work findings. Mr. Dickson is familiar with the survey at issue in this proceeding. Mr. Dickson identified Petitioner's Exhibit One through Nine. Mr. Dickson identified Petitioner's Exhibit Three as a copy of the sanction recommendation that he prepared. Mr. Dickson identified Petitioner's Exhibit Five as a copy of Section 400.414, Florida Statutes (2000), which gives the Agency the authority to deny, revoke licenses, and impose administrative fines. Mr. Dickson identified Petitioner's Exhibit Six as a copy of Section 400.4174, Florida Statutes (2000), regarding background screening and exemptions. Mr. Dickson identified Petitioner's Exhibit Seven as a copy of Rule 58A-5.019, Florida Administrative Code, regarding staffing standards and background screening. Mr. Dickson identified Petitioner's Exhibit Eight as a copy of Respondent's assisted living facility (standard) license for Dixie Lodge. Mr. Dickson identified Petitioner's Exhibit Nine as a copy of Respondent's request for a formal administrative hearing. Mr. Walker testified that at the time in question on May 16, 2001, his staff employee, Mr. Michael Roberts, did not have an exemption from background screening.
Recommendation Based upon the Findings of Fact, Conclusions of Law, and in consideration of the mitigating factors, it is RECOMMENDED: That the Agency enter a final order imposing a fine of not more than $500.00 against Respondent for failure to remove an employee who failed to meet the background screening requirements from a position working in direct contact with residents. DONE AND ENTERED this _____ day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 19th day of October, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Walker Richardson, Administrator Dixie Lodge 507 South Woodland Boulevard DeLand, Florida 32720 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent, Lennox National Account Services (Lennox or Respondent), violated the Florida Civil Rights Act of 1992,1 by discriminating 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. against the employment of Matthew P. Mathews (Petitioner) because of his disability, or in retaliation for his engagement in protected activities.
Findings Of Fact Lennox sells, installs, recycles, and maintains commercial heating, ventilation, and air-conditioning equipment for large, national companies. Lennox’s services are performed by service technicians assigned to branch offices throughout the United States. Petitioner accepted employment with Lennox as a Level II Service Technician on June 10, 2019. Petitioner’s Discrimination Complaint alleges: Complainant (CP), began his employment with Respondent in 06/2019 and holds the position of Level II Tech. CP was subjected to retaliation, different terms and conditions of employment and was held to a different standard because of his disability and Respondent failed to accommodate him. CP sustained a job-related injury on 02/11/2020, CP reported the injury to his Manager Keith Green on 02/12/2020. CP told Keith he needed to see a doctor; Keith pressed CP to do more work. CP told Keith in a loud, clear voice that he needed to see the doctor. CP saw Dr. Bernier and sent Keith a copy of his doctor slip. On 02/24/2020, CP went to Lennox NAS corporate for a week of classroom training and went on tour with all other students. CP met all corporate leadership and they all saw he was injured. Steve Coe (Safety Director) pulled CP from class to a closed-door meeting with Chris and began to yell at him and berate CP about his injury. CP was asked why he didn’t report the injury, but CP told them he did. CP asked Steve Coe to consider his credentials and allow him the opportunity to do other work, CP was dismissed. On 03/04/2020, Respondent retaliated against CP by retrieving the equipment provided to him such as, his work van, company cell phone and he no longer had access to his work email. CP contacted Joanna Amy to inquiry why they had taken away his work equipment and why he no longer had access to his work email. Joanna informed CP it was because he had filed for Workman’s Comp. CP status is currently unknown, he is not considered terminated and he has not resigned but, is not currently working. During his employment with Lennox, Petitioner was assigned to the Panama City Beach Branch, where he reported to Branch Manager Keith Green. Steve Coe was the assigned safety director at the time. As part of his orientation process for employment with Lennox, Petitioner acknowledged receipt of the company handbook (Handbook). The Handbook states that Lennox offers reasonable accommodations to qualified, disabled candidates and employees. The Handbook further states that the accommodation process (including work restrictions) is administered by Lennox’s office of human resources and must be properly documented. Specifically, section 5.9 of the Handbook entitled “Accommodations,” provides: The accommodation process (including ‘light duty,’ work restrictions, etc.), is administered – exclusively – by Human Resources and must be properly documented. If the need for accommodation is not obvious, you will be required to submit medical documentation about your disability and the limitation(s) that you are experiencing. You may also be asked to provide an explanation the workplace barrier(s) that need to be accommodated and a description of the desired accommodation. The forms in question – the ‘Healthcare Provider Information Request Form’ and the ‘Accommodation Request Form,’ respectively – are available from Human Resources and will serve as the basis for your interactive discussions with them. During his active employment, Lennox provided Petitioner with access to a company cell phone, email, and fleet work van solely for work-related purposes. In addition to the Handbook, Petitioner acknowledged receiving the NAS Policy & Procedures Booklet, which included the Company Vehicle Use Requirements and the Fleet Safety Policy. That vehicle policy stated, in relevant part: B. Vehicle Use Understand that you will be assigned a Company vehicle to be used to perform your job responsibilities. You will also be allowed to use the vehicle to travel between home and work (i.e. for commuting) …. You will not … use the vehicle for personal use beyond that which is incidental to your commute to or from work. (emphasis added). In addition to the use of a company vehicle, Petitioner acknowledged the cell phone agreement wherein he agreed that Lennox was providing him with a cell phone for “business use.” Petitioner also acknowledged receipt of the Lennox’s code of business conduct (Code of Conduct). The Code of Conduct includes Lennox’s policy prohibiting discrimination and/or harassment due to a disability or any other status protected by federal, state, and/or local law. The Code of Conduct includes reporting procedures encouraging reporting of alleged discrimination, harassment, or retaliation. Access to information about Lennox’s policies, including the Code of Conduct and reporting procedures, is available to employees online (among other places), and explained through training sessions, new-hire orientation, and company publications and postings. According to Petitioner, on October 24, 2019, while working for Lennox in the Panama City area, he was ordered by Keith Green to pick up a crane pad above his head, and when he did, “he felt something in his knee.” Petitioner allegedly spoke to Mr. Green on the phone when Mr. Green sent him to another job and said to Mr. Green, “Will you please be mindful of your tradesman because my knee is hurting.” Petitioner testified that the phone call became “hostile” and that he ended up talking to Safety Director Steve Coe, who sent Petitioner to Tallahassee for a four-hour ladder training course. There is no documentation indicating that Petitioner reported the alleged knee injury as an on-the-job injury that day. After that, Petitioner allegedly either aggravated his knee injury, or injured his knee again, while using an “unapproved” ladder on February 11, 2020, at the direction of Mr. Green. On February 13, 2020, Petitioner spoke with Lennox’s safety director, Steve Coe, about discomfort with his right knee. When asked by Mr. Coe if he injured his knee at work, Petitioner replied he was going for an MRI and if he needs surgery, he will report the injury as “work-related”; otherwise, he would handle it with his own insurance. Mr. Coe explained to Petitioner that is not an appropriate way of handling the matter and then outlined the process for reporting work-related injuries. Petitioner did not report the injury as work-related to Mr. Coe or his supervisor, Mr. Green, and he subsequently returned to work to attend a training class. Petitioner requested, and was allowed time off work on February 28, 2020, to attend an MRI appointment for his right knee. On March 2, 2020, Petitioner notified Lennox that he was unable to return to work due to his knee injury. On the same day, Petitioner applied for both short-term disability and workers’ compensation. Petitioner’s short-term disability claim was handled by Lennox’s third-party disability administrator, Sedgwick. The short-term disability notification to Lennox from Sedgwick, which also included Petitioner as a recipient, referenced Petitioner’s last day worked as February 27, 2020, and first day of absence as March 2, 2020. The notification further stated that Petitioner would also be evaluated under the Family Medical Leave Act (FMLA) for available coverage. Sedgewick’s March 2, 2020, short-term disability notification also informed Petitioner that he may want to apply for a “reasonable accommodation” in addition to other potential benefits, such as unpaid personal leave of absence. The notification further stated that during its review process, Petitioner’s absences should be treated as pending, with neither approval nor disapproval under Lennox’s attendance policy. Because Petitioner indicated in his short-term disability filing that his knee injury occurred at work, a workers’ compensation claim was initiated with Lennox’s third-party workers’ compensation administrator, ESIS. Because Petitioner was no longer actively working, on March 4, 2020, consistent with company practice and policy, Lennox collected its fleet van that had been issued to Petitioner. Also, since Petitioner had not returned to work or provided a return to work date, Lennox disabled Petitioner’s access to the company email since he was no longer at work. Petitioner claims that he was treated differently than another Lennox service technician, Julian Wiles, who allegedly was permitted to retain access to the company portal while on leave. Petitioner’s evidence of this was the fact that Mr. Wiles was included in company training emails while on leave. Further evidence indicated, however, that simply because Mr. Wiles was included as a recipient on company emails sent to numerous other employees about training requirements, it did not indicate that Mr. Wiles had access to the portal while on approved leave. Rather, the training email evidence submitted by Petitioner was simply reflective of training emails that were sent out in clusters for those who had not completed training. Further, it was shown that, unlike Petitioner, Mr. Wiles was on approved medical leave during the period he was absent because he had provided necessary medical documentation, and then he eventually returned to work. Although Petitioner was removed from Lennox’s portal, at Petitioner’s request, Lennox agreed to allow Petitioner to retain his company-issued cell phone. Petitioner’s short-term disability was denied by Sedgwick on March 9, 2020. Sedgwick’s short-term disability denial letter stated, in part, that Petitioner’s leaves of absence, unless excused by another form of leave or a reasonable accommodation, were unapproved under Lennox’s attendance policy, which is set forth in the Handbook. Specifically, the March 9, 2020, short-term disability denial letter from Sedgwick advised Petitioner: Attendance: The denial of your claim means that the absences in question – unless excused by another form of leave or a reasonable accommodation – are unapproved under your Company Attendance Policy (Appendix C to the Employee Handbook). Excessive Unapproved absences or 3 consecutive work days of No-Call, No-Show will result in discipline, up to and including the termination of your employment. Please talk to your Human Resources Business Partner if you have questions. Reasonable Accommodations: In addition to paid and unpaid leave, your company also offers reasonable accommodations (including additional unpaid time-off) to qualified disabled employees. Reasonable accommodations are managed by Human Resources – not by the LII Disability Leave Service Center. For more information, please refer to the Employee Handbook. To apply for an accommodation, please contact your Human Resources Business Partner at the number listed in Appendix A to the Employee Handbook. (emphasis added). Subsequently, on March 10, 2020, Sedgwick notified Mr. Green and Lennox that Petitioner’s short-term disability benefit claim was denied as of March 2, 2020, due to the worker’s compensation exclusion, and that Petitioner was not eligible for leave under FMLA due to length of service. Because Petitioner did not qualify for leave under FMLA, he was deemed on unapproved absence from Lennox as of March 2, 2020. On May 14, 2020, Lennox’s human resources director, Karen Cerrato, sent Petitioner a letter (the May 14th letter) advising Petitioner that he needed to contact Lennox’s office of human resources by May 19, 2020, to arrange a convenient time to discuss leave options or return to work with or without reasonable accommodations. The May 14th letter made it clear that, if Petitioner wanted to obtain approved leave or reasonable accommodations, he was responsible for making the requests and filling out necessary paperwork. Accommodation paperwork was attached to the May 14th letter, including an “Accommodation Request Form” and a “Health Care Provider Information Form.” The attached accommodation paperwork stated: You are responsible for making sure that HR receives the completed forms and any other information needed to support your accommodation request. In most cases, this will require you to return documentation and/or follow-up with your health care provider to ensure that they are doing their part. On March 18, 2020, Petitioner’s worker’s compensation claim was denied by the Florida Department of Financial Services, Division of Workers’ Compensation, on the basis that “there was no accident as defined by 440.02(1) that resulted in said injury.” On May 19, 2020, Petitioner responded to Ms. Cerrato’s May 14th letter by providing a document from Sedgwick indicating that he was able to return to work on May 3, 2020, without restrictions. The next day, May 20, 2020, Ms. Cerrato sent an email to Petitioner advising that he had not adequately responded to the May 14th letter’s request for his leave options or return to work. The email stated that, not only was the Sedgwick document that Petitioner provided her insufficient to comprise an accommodation request, it rather “provides an unrestricted return to work date of 5/3 (more than 2 weeks ago).” The final paragraph of the email stated: Please call me before 4:00 pm today so we can discuss the option you plan to pursue. If I do not receive your call by 4:00 pm today, I will understand (based on the paperwork you provided) that you have been able to work without restrictions since 5/3 and have elected to resign. In response, that same day, May 20, 2020, Petitioner’s workers’ compensation counsel, Chris Cumberland, sent an email to Ms. Cerrato, but failed to provide a return to work date or clarify whether reasonable accommodations were needed. Rather, Petitioner’s counsel’s email stated in pertinent part: Mr. Mathews is willing to return to work, but as the carrier has not provided an authorized workers compensation physician, he is unaware at this time as to what his work restrictions truly are. He knows personally that he is in a great deal of pain and that he likely has a torn meniscus in his knee which needs to be repaired before he can perform tasks at a full duty level. I would ask that you please discuss this with your counsel and I will advise my client accordingly. Jodie Michalski, counsel for Lennox, responded to Mr. Cumberland via email that same day, May 20, 2020, noting Petitioner’s unapproved absence status since early March because of his previously denied short-term disability, workers’ compensation, and FMLA claims, and suggesting the option of applying for a reasonable accommodation under the Americans with Disabilities Act (ADA). Ms. Michalski’s email also advised Petitioner’s counsel that Lennox was willing to grant a reasonable period for additional unpaid leave so that Petitioner could complete the necessary paperwork. Ms. Michalski’s email posed the following questions: Is your client interested in pursuing an accommodation (including additional, unpaid time off)? If so, can he commit to providing the completed paperwork to Human Resources within 15 calendar days, which we consider a reasonable amount of time? The last sentence of Ms. Michalski’s email stated: “I look forward to your response by 4:00 p.m. Alternatively, your client can reach out to Karen Cerrato directly with his response.” When neither Mr. Cumberland nor Petitioner timely responded to Ms. Michalski’s May 20th email to Petitioner’s counsel, on May 26, 2020, Ms. Cerrato emailed Petitioner and advised him that, in the absence of an appropriate response, Lennox would conclude there was no interest in a reasonable accommodation and would process Petitioner’s separation of employment after 4:00 p.m. on May 27, 2020. At the time, Petitioner had received approximately 84 days of unapproved absence and was advised that if he would like to pursue a reasonable accommodation, including additional unpaid leave, that he must contact Ms. Cerrato immediately. On May 27, 2020, after the 4:00 p.m. deadline, instead of responding directly to Ms. Cerrato’s requests for clarification, Petitioner sent three separate emails to Ms. Cerrato indicating that he was willing to work within the restrictions from his doctor (which were not provided), referring to the disability statement previously provided (the one stating that he could return to work May 3rd), and advising that he had an upcoming doctor visit. Petitioner’s correspondence failed to provide the requested accommodation paperwork and, instead, alleged, “To this point, your demands have been impossible because Lennox has prevented me from various resources.” Ms. Cerrato responded to Petitioner by email that same day, again requesting that he engage in good faith with Lennox, address the questions previously directed to him, provide any restrictions from his doctor, and complete the accommodation paperwork, including the Employee Accommodation Request Form and Health Care Provider Information Form. Ms. Cerrato’s email gave Petitioner more time, until May 28, 2020, to provide the previously requested information and necessary paperwork. She also advised Petitioner that if he failed to provide the information and paperwork by June 12, 2020, it would be assumed that Petitioner was cleared to return to work without restrictions but that he had chosen not to return to employment with Lennox. Petitioner responded with another email later that same day, May 27th, promising to submit the accommodation paperwork following his doctor’s appointment scheduled for May 28, 2020. In his email, Petitioner also made complaints directed against Mr. Green and Mr. Coe regarding Petitioner’s alleged injury and alleging discrimination. Ms. Cerrato contacted Petitioner via email the next morning, May 28, 2020, stating, in part, that she looked forward to receiving the completed paperwork and engaging in the interactive process. In her email, Ms. Cerrato also advised Petitioner that his complaint against Ms. Cerrato, Mr. Green, and others for discrimination, harassment, and bullying, had been investigated and that the allegations were not substantiated. Petitioner responded to Ms. Cerrato via email later that day, May 28th, advising that his doctor’s appointment had been rescheduled for May 29th, suggesting that Ms. Cerrato was unwilling to fairly address issues he had reported to her, suggesting that she had made an “offer” and requesting arbitration. Ms. Cerrato responded by email the next day stating: I am happy to grant you an additional day to submit your accommodation paperwork. In the meantime, please clarify the following two points: You reference my “offer’. What offer did I make? You reference “arbitration” several times. Please explain what you mean. I look forward to receiving your paperwork today. Petitioner did not provide the paperwork or respond. On June 5, 2020, Ms. Cerrato sent an email to Petitioner stating: I understood from your May 28, 2020 email that you would be sending me your accommodation request and supporting medical documentation on May 29 after your doctor’s appointment. Another week has passed, but we have not received anything further from you (e.g. your request form, medical support, a request for more time, or a response to the questions I asked on May 28). We must concluded [sic], therefore, that you will not be pursuing an accommodation or returning to work. As such, we have processed your separation, effective today. If you feel there has been an error (e.g. if I missed an email from you), please let me know. If I do not hear from you, we wish you well in your future endeavors. Petitioner failed to respond. Petitioner was never considered by Lennox to be disabled, never properly requested accommodations, and failed to prove that he had a work-related injury. Petitioner never provided required paperwork, did not clarify any workplace restrictions, never requested more time before returning to work, and never advised whether he even intended to return to work. Petitioner’s workers’ compensation claim was denied, and the evidence submitted in this case was insufficient to prove Petitioner’s claims of discrimination or retaliation.
Conclusions For Petitioner: Matthew P. Mathews, pro se Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 For Respondent: Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast Second Avenue Miami, Florida 33131
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 22nd day of June 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2021. Matthew Mathews Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Stefanie Mederos, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Dietrich, Esquire Littler Mendelson, P.C. Suite 1500, Lock Box 116 2001 Ross Avenue Dallas, Texas 75201
