92-003920 Leah Swenson-Davis vs. Orlando Partners, Inc., D/B/A Quality Hotel Orlando Airport Status: Closed Recommended Order on Thursday, January 14, 1993.

Summary: Petitioner proved prima facie case of handicap discrimination when respondent failed to appear. No prejudice to allow amend of petition to add corporate respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEAH SWENSON-DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3920

)

ORLANDO PARTNERS, INC., d/b/a )

QUALITY HOTEL ORLANDO AIRPORT, )

ORLANDO PARTNERS, LTD., )

KIRKLAND MANAGEMENT, INC., and )

K. F. INTERNATIONAL HOST, INC., )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled case on December 10, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Tobe Lev, Esquire

Post Office Box 2231

Orlando, Florida 32802

For Respondents: No appearance.

STATEMENT OF THE ISSUES

Petitioner's complaint and Petition for relief allege that she was

discriminated against due to her handicap of multiple sclerosis when she was

terminated by Respondents on March 9, 1990. The issue for disposition is

whether that violation of Section 760.10, F.S., occurred, and if so, what relief

is appropriate.

PRELIMINARY STATEMENT

The petition was forwarded to the Division of Administrative Hearings by

the Florida Commission on Human Relations (FCHR) on June 29, 1992, and was set

for hearing.

It is apparent from the record forwarded to the Division of Administrative

Hearings that notices were sent to Laurel Lenfestey, Esquire, Holland and

Knight, Counsel for Respondents. On December 17, 1991, Ms. Lenfestey, by

letter, informed FCHR's Executive Director that Holland and Knight was no longer

counsel for Respondents and that future communications should be directed to

Lisa Waters, Personnel Manager. Ms. Lenfestey's letter references the style of

the case as, Swenson-Davis v. Orlando Partners, Inc.

In August 1992, Petitioner, through counsel, requested a continuance based

on that counsel's need to familiarize himself with the case. Counsel also

indicated that the hotel's managers disclaimed knowledge of the case or

responsibility for the Respondent's liabilities.

After a brief abeyance, Petitioner informed the Hearing Officer that

Respondent, Orlando Partners, is a partnership comprised of two corporations.

Thereafter, notices were provided to resident agents for the two corporations;

Raymond Rotella, an attorney; and the hotel.

On December 4, 1992, Petitioner filed a motion to amend her petition for

relief, or in the alternative, a continuance to permit that petition to be

amended. The motion stated that counsel for Kirkland Management, Inc., and K.

F. International Host, Inc., the two corporations comprising Orlando Partners,

Ltd., had been contacted regarding the order for prehearing statement. That

counsel, Raymond Rotella, Esquire, said that he would not appear, as the

corporations were not proper parties. The petition names Orlando Partners,

Inc., as Respondent, when allegedly the proper designation is Orlando Partners,

Ltd., with Kirkland Management, Inc., and K. F. International Host, Inc., as

general partners.

The continuance was not granted and no appearance was made on behalf of

Respondents at the hearing. In the absence of any objections or other response,

Petitioner's motion to amend the petition was GRANTED, and the style of the case

is amended accordingly.

Amendment to more fully name the appropriate parties is not prejudicial.

Respondent was represented by counsel in the early stages of the proceeding

prior to the case's referral to Division of Administrative Hearings and there is

no indication that counsel objected or otherwise informed FCHR of an

inappropriate designation by Petitioner. A telephone call to the Hearing

Officer, and later a letter, from Betsy Kushner, Cigna Claims Representative,

requested a copy of the recommended order in this case. That letter, now a part

of the record, identifies the insured as Orlando Partners, Inc., d/b/a Sheraton

Orlando International Airport Inn. (See letter dated 12/23/92) Notices have

been furnished to the corporations and they could have appeared at the hearing.

Petitioner appeared and testified at hearing and presented the testimony of

Michelle Soliwoda, John Butler, Patricia Santiago, and Louis Evans. She also

presented two exhibits, received in evidence as Petitioner's exhibits no. 1 and

2.

After hearing, Petitioner submitted a proposed recommended order. Her

findings of fact are addressed in the attached Appendix.

FINDINGS OF FACT

1. Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a

national sales manager from August 1989, until her termination on March 9, 1990.

2. As sales manager she searched out new business for the hotel,

maintained files and obtained repeat business from corporations and other

customers. Her salary was $28,000.00 a year.

3. Louis Evans was director of sales, and her supervisor. He hired Ms.

Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth

Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro";

she generated substantial revenue for the hotel and her sales bookings were

"much superior" to the other staff.

4. At one point, the three women were promised new office chairs if they

could generate 500 room/nights by Friday of the same week. They made their

goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other

women bringing in the remainder.

5. In addition to booking hotel rooms, Ms. Swenson-Davis also was

effective in selling other hotel services. She generated business from groups

who had previously used the hotel but had not been reworked. Her booking

packages were very detailed and thorough and she had few cancellations.

6. In February 1990, Barbara Hydechuk was promoted to director of sales,

and she took over the responsibility of national sales.

7. Leah Swenson-Davis was hospitalized in February 1990, for what was

originally thought to be a stroke. She was then diagnosed as having multiple

sclerosis, a disease affecting functions in the nervous system. Hers is not a

severe form of the disease and her physician released her to return to work

half-time. At the hearing, no signs of illness were evident; that is, she moved

and spoke in a perfectly normal manner.

8. When she returned to work, however, Ms. Swenson-Davis was treated "like

a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect

them. She was kept at a physical distance. During her absence, Barbara

Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was

not informed of the promotion opportunity, he replied that he had worked with

Barbara.

9. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis

were very different after her return to work.

10. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up

her doctor's release to return to work full-time, she was informed by Barbara

Hydechuk that she was "terminated immediately" due to lack of productivity in

the sales department.

11. Since her termination, Ms. Swenson-Davis has submitted approximately

300 applications with other hotels, and in other sales and marketing areas. She

has been given interviews, but has not been hired as of the date of the hearing,

although she is capable of working full-time.

12. She received unemployment compensation from March until September

1990.

13. She has accrued medical expenses in the amount of $12,602.00, in 1992,

for herself and her son, which expenses would have been covered by her former

employer's benefit package. She was insured through COBRA until December 1990,

when the premiums went over $500.00 and she could no longer afford them.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to Section 120.57(1), F.S.

15. Section 760.10(1)(a), F.S., (1991) provides:

760.10 Unlawful employment practices;

remedies, construction.--

(1) It is an unlawful employment practice for

an employer:

(a) To discharge or to fail or refuse to hire

any individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or privileges

of employment, because of such individuals

race, color, religion, sex, national origin,

age, handicap, or marital status.

16. In order to establish a prima facie case of handicap discrimination,

Petitioner must show: (1) that she is handicapped; (2) that she performed or

is able to perform her assigned duties satisfactorily; and (3) that despite

her satisfactory performance she was terminated. McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981), Horn v. Adolphus, Inc., 9 FALR 1132 (FCHR September 13,

1986).

17. In Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (FCHR August 11,

1981), the Commission adopted a plain language interpretation of the term

"handicap" as follows:

Generally 'handicap' connotes a condition that

prevents normal functioning in some way: 'A

person with a handicap does not enjoy, in some

manner, the full and normal use of his

sensory, mental or physical faculties.'

See also, Thomas v. Floridin Co., 8 FALR 5457 (FCHR order 5/15/86).

18. Under the above definition, Petitioner is a handicapped individual,

thus satisfying the first prong of her prima facie case. Similarly, the

evidence shows that Petitioner's performance was satisfactory until Respondent

became aware of her multiple sclerosis diagnosis.

19. In the absence of any evidence of a legitimate basis for termination

of Petitioner, the inescapable conclusion is that Respondent committed the

alleged violation of Section 760.10, F.S.

20. In his post-hearing proposed recommended order, counsel for Petitioner

claims damages for her non-promotion. In administrative proceedings, as in

court proceedings, "...the procedure must afford reasonable opportunity to amend

the issues if necessary to reach a just result in conformance with the

evidence." University Community Hospital, etc. v. Dept. of HRS and Winter Haven

Hospital, 18 FLW D178, 180 (1st DCA 12/29/92). The failure to promote was not

alleged in Petitioner's prehearing pleadings and even if she had requested

amendment, the evidence does not support a finding of that violation.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Florida Commission on Human Relations enter its final order

requiring 1) Reinstatement of Petitioner in the same or equivalent position,

2) damages of back pay computed at the rate of $28,000.00 per year from the

time of discharge until reinstatement or rejection of an offer of equivalent

employment, less payments received for unemployment compensation; 3) damages in

the amount of $12,602.00, representing medical benefits lost; and 4)

reasonable costs and attorneys fees.

DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon

County, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920

The following constitute specific rulings on the findings of fact submitted

by Petitioner:

1. Adopted in paragraph 1.

2.-3. Adopted in paragraphs 2, 3, and 4.

4. Rejected as irrelevant.

5.-6. Adopted in paragraph 6.

7. Adopted in paragraphs 2, 5, and 7.

8. Rejected as contrary to the evidence. Petitioner

asked why she was not told of the promotion

opportunity.

9. Adopted in paragraph 7.

10. Adopted in paragraph 5.

11.-12. Adopted in paragraph 8.

13. Rejected in part. The complaint in this case

relates to wrongful termination, not failure to

promote. Moreover, no competent evidence supports

a finding that Petitioner would have applied for

promotion or was denied promotion on account of her

handicap. The other employee was promoted prior to

Petitioner's return to work.

14. Adopted in paragraph 9.

15. Rejected as unsupported by the evidence. Basis for

the computation is not apparent.

16. Rejected as immaterial.

17. Adopted in substance in paragraph 9, although the

$200.00 expense incurred in 2/90 is rejected, as

petitioner was still employed at that time.

18. Rejected as unsupported by competent evidence.

19. Rejected as unnecessary, although the

recommendation for reinstatement is adopted.

COPIES FURNISHED:

James A. Kirkland

Kirkland Management, Inc.

946 North Mills Avenue

Orlando, Florida 32802

Percy Bell

K. F. International Host, Inc.

1600 Lee Road

Winter Park, Florida 32790

Raymond Rotella

Kosto & Rotella, P.A.

Post Ofice Box 113

Orlando, Florida 32802

Orlando Partners, Inc.

d/b/a Quality Hotel Orlando Airport

3835 McCoy Road

Orlando, Florida 32812-4199

Tobe Lev, Esquire

Post Office Box 2231

Orlando, Florida 32802

Betsy Kushner, Claim Representative

Cigna Property and Casualty Companies

Post Office Box 30389

Tampa, Florida 33630-3389

Margaret Jones, Clerk

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

LEAH SWENSON-DAVIS,

Petitioner,

EEOC Case No. n/a

v. FCHR Case No. 90-3905

DOAH Case No. 92-3920

ORLANDO PARTNERS, INC., d/b/a FCHR Order No. 93-031

QUALITY HOTEL ORLANDO

AIRPORT, ORLANDO PARTNERS,

LTD., KIRKLAND MANAGEMENT,

INC., AND K.F. INTERNATIONAL

HOST, INC.,

Respondent.

________________________________/

FINAL ORDER AWARDING AFFIRMATIVE

RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Leah Swenson-Davis filed a complaint of discrimination with the

Commission pursuant to the Human Rights Act of 1977, as amended. Sections

760.01-760.10, Fla. Stat. (1991). Petitioner alleged Respondent Orlando

Partners, Inc., d/b/a Quality Hotel Orlando Airport, Orlando Partners, Ltd.,

Kirkland Management, Inc., and K.F. International Host, Inc., unlawfully

discriminated against her on the basis of handicap (multiple sclerosis).

The allegations of discrimination set forth in the complaint were

investigated. On December 9, 1991, the Executive Director found no reasonable

cause to believe an unlawful employment practice occurred.

On June 11, 1991, Petitioner filed a Petition for Relief from an Unlawful

Employment Practice, requesting that a formal proceeding be conducted on the

claim. The petition was referred to the Division of Administrative Hearings

(DOAH) . Fla. Admin. Code Rule 60Y-4.016(1). On January 14, 1993, DOAH Hearing

Officer Mary Clark entered a Recommended Order of dismissal.

Public deliberations were held on September 16, 1993, in Orlando, Florida

before this panel of commissioners.

Exceptions to the Recommended Order

Petitioner has entered the following exceptions to the Recommended

Order:

1. The hearing officer should have include prejudgment interest

in the damage award.

2. The hearing officer should not have subtracted unemployment

compensation from the backpay award; and

3. The hearing officer should not have rejected the calculated

backpay award, including prejudgement interest, of

$95,000.00.

The panel finds that the hearing officer should have awarded prejudgment

interest to the Petitioner in the amount of 12 percent simple interest per

annum. Department of Health and Rehabilitative Services v. Boyd, 525 So.2d 432

(Fla. 1st DCA 1988) . As such, the panel grants Petitioner's first exception.

The panel also grants Petitioner's second exception regarding the hearing

officer's erroneous subtraction of her unemployment compensation from her

damages award. Brown v. A. J. Gerrard Manufacturing Company, 715 E.2d 1549

(11th Cir. 1983)

Petitioner's third exception is granted to the extent that it addresses the

calculation of backpay, but the panel declines to set the total damages award at

$95,000. Instead, the panel finds that Petitioner is entitled to "make whole"

relief and awards the Petitioner reinstatement, backpay until such reinstatement

or offer of reinstatement is refused, at the rate of $28,000 per year,

$12,602.00 for medical expenses and 12 percent simple interest per year on the

total damage award, plus Petitioner's reasonable costs and attorney's fees.

Findings of Fact

We have considered the hearing officer's Findings of Fact. We adopt the

hearing officer's findings.

Conclusions of Law

Except as stated above, we agree with the hearing officer's analysis of the

legal issues and conclusions based upon the factual findings. Accordingly, we

adopt the hearing officer's conclusions, as amended.

Remedy

Respondents are hereby ordered to offer Petitioner reinstatement, pay

Petitioner back pay until such reinstatement or offer of reinstatement is

refused at the rate of $28,000 per year, pay Petitioner $12,602.00 for medical

expenses and pay Petitioner 12 percent simple interest per year on the total

damage award, plus pay Petitioner's reasonable costs and attorney's fees.

The parties have the right to seek judicial review of this Order. The

Commission and the appropriate district court of appeal must receive a notice of

appeal within 30 days of the date this Order is filed with the clerk of the

Commission. Explanation of the right to appeal is found in Section 120.68,

Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 22nd day of November, 1993.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:__________________________

Commissioner Whitfield Jenkins,

Panel Chairperson;

Commissioner Gerald E. Richman; and

Commissioner Stella Lewis.

FILED this 22nd day of November, 1993 in Tallahassee, Florida.

_________________________

Sharon Moultry

Clerk of the Commission

Copies Furnished:

Tobe Lev, Attorney for Petitioner (C.M. P360135092)

James A. Kirkland, Percy Bell, Raymond Rotella, Orlando

Partner, Inc., Betsy Kushner, Respondents

(C.M. P360135093)

Mary Clark, DOAH Hearing Officer

Danica Parker, Legal Advisor for Commission Panel