20-001764 Elaine Williams vs. Tallahassee Memorial Healthcare Status: Closed Recommended Order on Wednesday, September 9, 2020.

Summary: Petitioner failed to prove Respondent discriminated against her in violation of the Florida Civil Rights Act of 1992.

P RELIMINARY S TATEMENT

Petitioner filed a Complaint of Discrimination (“Complaint”) with the

Florida Commission on Human Relations (“the Commissio n”) on March 29,

2019, alleging Respondent discriminated against her on the basis of her age,

sex, race, disability, and in retaliation for engaging in a protected activity,

when Respondent discharged her from employment.

Following an investigation of her Complaint, the Commission issued a

Determination of No Reasonable Cause on March 4, 2020. Petitioner timely

filed a Petition for Relief with the Commission on April 7, 2020 , to contest the

determination. In her Petition, Petitioner alleges that Respondent failed to

make a reasonable accommodation for Petitioner’s injury sustained on the

job. The Petition makes no reference to discrimination on the basis of her age,

sex, race, or in retaliation for engaging in a protected activity. 1 The

Commission forwarded the Petition to the Division of Administrative

Hearings (“Division”) on April 9, 2020, to conduct a formal fact - finding

hearing.

The final hearing was originally scheduled for June 10, 2020, as an in -

person hearing in Tallahassee according to the parties ’ request. The final

hearing was subsequently rescheduled to a Zoom conference on August 18, 2020.

The final hearing commenced as rescheduled. Petitioner testified on her

own behalf and called her grandmother, Clara Pride, as a witness. Petitioner

introdu ced no exhibits into the record.

1 Petition er, who is unrepresented, also mistake nly includes a claim against Respondent

under the Florida Fair Housing A ct, which is clearly inapplicable to Petitioner’ s claim.

Respondent presented the testimony of Lora Vitali, Director of the

Colleague Health Department (“Colleague Health”) , and Elissa Long,

Director of Colleague Relations. Respondent’s Exhibits 2 and 3 were admitted

into eviden ce.

The final hearing proceedings were recorded, but the parties did not

request the transcript. The parties timely filed Proposed Recommended

Orders (“PROs”) which have been considered by the undersigned in preparing

this Recommended Order.

Except as ot herwise noted, all reference s herein to the Florida Statute are

to the 2018 version, which was in effect when Petitioner was discharged.

F INDINGS OF F ACT

1. At all times relevant hereto, Petitioner was employed by Respondent as

a patient transporter.

2. O n December 27, 2018, Petitioner sustained a back injury while on the

job. Petitioner reported the injury to Lora Vitali, Director of Colleague

Health , Respondent’s employee healthcare department . Ms. Vitali instructed

Petitioner to take the rest of the day off work and treat the injury with ice

and ibuprofen.

3. On December 28, 2018, Petitioner returned to Colleague Health and

reported that she was still in pain. Colleague Health nurse, Monica

Hubmann, arranged massage therapy and pain medication for Petiti oner and

instructed her to report back to Colleague Health on Monday, December 31,

2018, for further evaluation.

4. Petitioner presented to Colleague Health on December 31, 2018, and

reported that she was still in pain. Nurse Hubmann referred Petitioner to

Dr. Spencer Stoetzel, who evaluates and treats Respondent’s employees who

are injured on the job. Dr. Stoetzel is employed by North Florida Sports

Medicine & Orthopaedic Center, not Respondent.

5. At Dr. Stoetzel’s direction, Petitioner received regular t reatment,

including both physical and occupational therapy, until March 25, 2019.

Petitioner was on workers’ compensation leave from work during her

treatment.

6. On March 25, 2019, Dr. Stoetzel cleared Petitioner to return to work

with no restrictions and a 0% impairment rating. Based on Dr. Stoetzel’s

conclusion, Ms. Vitali released Petitioner to return to work effective

March 26, 2019. Ms. Vitali informed Petitioner of her release to work on

March 25, 2019.

7. Petitioner’s supervisor placed Petitioner on the work schedule after she

was released to return to work, but Petitioner did not return to work as

scheduled, and did not return any one of several telephone calls from her

supervisor. Therefore, Respondent discharged Petitioner for job

abandonment.

8. Petitioner disputes her dismissal for job abandonment because she

maintains that she was unable to work due to continuing pain.

9. Petitioner disputes Dr. Stoetzel’s conclusion that she could return to

work beginning March 26, 2019. Petitioner testified th at Dr. Stoetzel told her

that, based on the results of magnetic resonance imaging (“MRI”), she had a

lumbar tear in the L4 - L5 region, yet the discharge summary excluded the

results of the MRI. The discharge summary refers only to a “[l]umbar sprain

or stra in with discrepant pain as well as radicular symptoms [pain radiating

down the leg].” In the discharge summary, Dr. Stoetzel concludes, “There is

really nothing further I have to offer.”

10. Petitioner testified that her pain is continuous, has increased i n

severity, and prevents her from wearing shoes, driving, doing household

chores, and caring for her children. Ms. Pride testified that her daughter is in

constant pain and that Ms. Pride has assumed care of her grandchildren

during the day when Petitioner ’s husband is at work.

11. Petitioner maintains that she has been unable to work due to her

injury from December 27, 2018, through the date of the final hearing.

12. Petitioner did not introduce any evidence of discrimination on the

basis of her race, sex, or in retaliation for engaging in a protected activity.

With regard to age discrimination, Petitioner testified that Dr. Stoetzel once

commented that her back pain was due to her age.

13. Petitioner’s PRO includes no references to discrimination based on her

age, sex, race, or in retaliation for engaging in a protected activity.

C ONCLUSIONS OF L AW

14. The Division has jurisdiction over the parties to, and the subject

matter of, this case, pursuant to sections 120.569(2), 120.57(1) and 760.11(7),

Florida S tatutes (2020).

15. The Florida Civil Rights Act (“the Act”) prohibits employers from

discriminating against employees on the basis of race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital status. See

§ 760.10(1)(a), Fla. Stat. The Act also prohibits employers from retaliating

against employees for engaging in activity protected under the Act. See

§ 760.10(7), Fla. Stat.

16. The Act is patterned after federal anti - discrimination laws ; therefore,

federal case law construing these laws is applicable to claims under the Act. See Dep’t of Cmty. Aff. v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991);

Albra v. Advan, Inc. , 490 F.3d 826, 834 (11th Cir. 2007).

17. In her Complaint, Petitioner alleged Respondent intentionally

discrimina ted against her by discharging her from employment on the basis

of her age, sex, race, disability, and in retaliation for engaging in a protected

activity. However, in her Petition, Petitioner alleges discrimination based

solely on her disability. Specific ally, Petitioner alleges that Respondent failed

to make a reasonable accommodation for her disability.

18. Petitioner introduced no evidence relating to discrimination on the

basis of age, sex, race, or in retaliation for engaging in a protected activity.

Furthermore, Petitioner did not address any of those issues in her PRO .

Petitioner has abandoned those allegations, which will not be addressed

further herein. See Wickham v. State , 124 So. 3d 841, 860 (Fla. 2013) (Failure

to pursue a claim amounts to aban donment of the issue); Built Right Constr.

Inc., v. Palm Beach Cty. Sch. Bd ., Case No. 11 - 5316 (Fla. DOAH Dec. 16,

2013; Fla. Palm Beach Cty. Sch. Bd. Apr. 2, 2014); Hammonds v. Fish &

Wildlife Conser. Comm’n , Case No. 19 - 6307 (Fla. DOAH June 23, 2020).

19 . Petitioner bears the burden to prove her allegation of discrimination

on the basis of a disability. See Dep’t. of Banking and Fin. v. Osborne Stern

and Co. , 670 So. 2d 932, 934 (Fla. 1996) (“The general rule is that a party

asserting the affirmative of a n issue has the burden of presenting evidence as

to that issue.”); Fla . Dep’t of HRS v. Career Serv. Comm’n , 289 So. 2d 412,

414 (Fla. 4th DCA 1974) (“[T]he burden of proof is on the party asserting the

affirmative of an issue before an administrative trib unal.”).

20. To prove a claim for failure to accommodate a disability, a claimant

must show that: (1) she is disabled; (2) she is a qualified individual; and (3) she was discriminated against by way of respondent’s failure to provide a

reasonable accommoda tion. See McKane v. UBS Fin. Servs., Inc. , 363

Fed.Appx. 679, 681 (11th Cir. 2010) (citing Lucas v. W.W. Grainger, Inc. , 257

F.3d 1249, 1255 (11th Cir. 2001)). To establish herself as a qualified individual, Petitioner “must show either that [she] can perf orm the essential

functions of [her] job without accommodation, or, failing that, show that [she]

can perform the essential functions of [her] job with a reasonable accommodation. ” Id. (citing Davis v. Fla. Power & Light Co. , 205 F.3d 1301,

1305 (11th Cir. 2000)). Petitioner cannot prevail on a failure - to - accommodate

claim if she never requested an accommodation. See Connelly v. Wellstar

Health Sys., Inc. , 758 Fed.Appx. 825, 831 (11th Cir. 2019).

21. Setting aside whether Petitioner is disabled, Petitioner, by her own

admission , was not qualified to perform the essential elements of her position

as patient transporter without an accommodation. Petitioner did not

identify — let alone present evidence of — any reasonable accommodation

which would have allowed her to perform this position. Therefore, Petitioner

cannot establish the second element of a failure - to - accommodate claim. See

McKane , 363 Fed.Appx., at 681.

22. Petitioner also did not request an accommodation from Respondent.

Petitioner did not believe she w as capable of returning to work as of

March 26, 2019, but there is no evidence that Petitioner sought or requested

any form of accommodation from Respondent which would have allowed her

to perform the essential functions of her position. Petitioner’s failu re to do

this is fatal to her failure - to - accommodate claim. See Connelly , 758

Fed.Appx., at 831 (11th Cir. 2019).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Commission issue a final order find ing that

Tallahassee Memorial HealthCare, Inc., did not discriminate or retaliate against Petitioner, and dismissing Petitioner’s Petition for Relief in Case No. 2019 - 18837.

D ONE A ND E NTERED this 9th day of September , 2020 , in Tallahassee, Leon

County, F lorida.

S UZANNE V AN W YK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of September , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Elaine Williams

411 Earline Hobbs Road

Quincy, Florida 32351

Gerald D. Bryant, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

2nd Floor

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Stephanie Clark, Esquire

Pennington, P.A.

Suite 200

215 South Mon roe Street

Tallahassee, Florida 32301

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the ri ght to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.