01-002512 Susan Indish-Militello vs. Pinellas Suncoast Transit Authority Status: Closed Recommended Order on Friday, October 25, 2002.

Summary: Charge filed seven years after alleged discrimination is time-barred and should be dismissed. Even if claim is not time-barred, charge should be dismissed because Petitioner failed to prove that she was handicapped.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN INDISH - MILITELLO, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2512

)

PINELLAS SUNCOAST TRANSIT )

AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by it duly - designated Administrative Law Judge,

Carolyn S. Holifield, held a formal hearing in the above - styled

case on September 18, 2002, in Largo, Florida.

APPEARANCES

For Petitioner: Su san Indish - Militello, pro se

2835 North Seneca Point

Crystal River, Florida 34429

For Respondent: Alan S. Zimmet, Esquire

Elita D. Cobbs, Esquire

Zimmet, Unice, Salzman & Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Florida 33759

STATEMENT OF THE ISSUES

The issues are: (1) Whether Petitioner's Amended Charge of

Di scrimination should be dismissed as time barred; and

(2) Whether Petitioner, Susan Indish - Militello (formerly known

as Susan Indish and referred to herein as “Petitioner”) was

discriminated against in violation of the Florida Civil Rights

Act of 1992, as amended.

PRELIMINARY STATEMENT

On or about July 10, 1995, Petitioner filed a Charge of

Discrimination against Pinellas Suncoast Transit Authority

("PSTA") for handicap discrimination with the Florida Commission

on Human Relations ("Commission") under the F lorida Civil Rights

Act of 1992 ("FCRA"). On or about July 16, 1999, Petitioner

filed an Amended Charge of Discrimination alleging that she was

discriminated against because of a handicap in violation of the

Americans with Disabilities Act (“ADA”) and the FCRA.

Petitioner also alleged that her handicap was not reasonably

accommodated. The Commission failed to provide a determination

as to whether reasonable cause existed to believe that a

discriminatory practice had occurred, and Petitioner filed a

Reque st for Formal Administrative Hearing on May 9, 2001.

Pursuant to Petitioner's request, on June 27, 2001, the

Commission requested the Division of Administrative Hearings to

conduct a hearing on Petitioner’s Amended Charge of

Discrimination.

Petitioner’s c laims were referred to the Division of

Administrative Hearings and were scheduled for a final hearing

to be held on August 15, 2001. On August 8, 2001, PSTA filed a

Motion to Dismiss Petitioner’s Amended Charge of Discrimination

and Request for Formal Adm inistrative Hearing for failure to

request an administrative hearing within four years of the date

of the last act of alleged discrimination, which Petitioner

alleged to be her date of termination, September 8, 1994. A

teleconference was conducted on the motion on September 26,

2001.

In response to the Motion to Dismiss, the undersigned

issued an Order on January 17, 2002, recommending that the

Commission enter a final order dismissing Petitioner’s Charge.

This recommendation was rejected by the Commiss ion on April 19,

2002, and the case was remanded to the undersigned for further

proceedings. The case was reopened by the Division of

Administrative Hearings on May 22, 2002, and the final hearing

was conducted on September 18, 2002. It was noted at the

hearing that the Division of Administrative Hearings does not

have jurisdiction over claims made under the ADA.

At the final hearing, Petitioner testified on her own

behalf and offered one document as evidence. The Administrative

Law Judge reserved ruling on the admissibility of the document

due to Petitioner’s failure to file an exhibit list or provide

copies to opposing counsel pursuant to the Order of Pre - Hearing

Instructions dated July 15, 2002, and to consider Respondent’s

other objections to the admi ssibility of this exhibit.

Petitioner was directed to send a copy of her document to

Division of Administrative Hearings and opposing counsel by

September 23, 2002. Petitioner failed to file the document, and

thus, the issue of its admissibility need not be reached, and

the exhibit is excluded from evidence.

Respondent offered the testimony of Gail Bilbrey, PSTA’s

benefits specialist; Denise Skinner, PSTA’s director of

transportation; and Roger Sweeney, PSTA’s executive director.

Respondent’s Exhibits 1 through 12 were admitted into evidence.

At the close of the hearing, the parties were ordered to file

proposed findings of fact and conclusions of law, within 10 days

of the final hearing. Respondent timely filed a proposed

recommended order. Petitioner did not file a proposed order.

The hearing was recorded but was not transcribed.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record of the proceeding, the

following findings of fact are made:

1. Petitioner, Susan Indish - Militello, is a resident of

Marion County, Florida.

2. Respondent, Pinellas Suncoast Transit Authority

("PSTA"), is a transit agency located in Pinellas County,

Florida and is an employer under the FCRA.

3. Petitioner was emplo yed by Respondent, as a bus

operator, beginning in 1989 until September 8, 1994.

4. Petitioner was involved in a work - related bus accident

on May 2, 1994, and as a result, she suffered neck and back

injuries.

5. Petitioner’s injuries were evaluated by Pe titioner’s

treating physician Dr. Jeffrey Tedder on May 4, 1994. On

May 19, 1994, Dr. Tedder issued a note releasing Petitioner to

return to full work duty on May 29, 1994.

6. Petitioner did not to return to work on May 29, 1994,

and utilized vacation a nd sick leave for approximately the next

three weeks. During this time, a second medical evaluation was

performed by Dr. Joseph Sena. Dr. Sena issued a report on

June 9, 1994, stating that he was unable to substantiate any

objective findings which would warrant Petitioner being out from

work.

7. Respondent informed Petitioner that she had been

released to work by both Dr. Tedder and Dr. Sena. Petitioner

returned to work in late June 1994 and worked until July 18,

1994.

8. Petitioner exhausted her si ck leave on July 19, 1994.

9. When Petitioner then again failed to return to work, on

August 12, 1994, Respondent’s General Counsel sent Petitioner a

letter by certified mail advising her that all her sick leave

had been exhausted and that in accordanc e with the Family and

Medical Leave Act and PSTA’s Labor Agreement with the bus

operators’ union, Petitioner was required to provide medical

certification establishing a qualifying reason for leave within

15 days. The letter also required Petitioner to pr ovide an

expected date of return to work. Finally, the letter stated

that failure to provide medical certification would subject

Petitioner to discipline up to and including termination.

10. The Labor Agreement between the PSTA and its employees

i s applicable to Petitioner. Petitioner acknowledged that she

received a copy of the Labor Agreement. Article 15 of the Labor

Agreement, titled "Leave Without Pay" provides in pertinent part

the following:

Section 8. Failure to return to work at the

expi ration of approved leave shall be

considered absence without leave and grounds

for dismissal.

* * *

Section 13. Leave of Absence - Illness

* * *

B. All leaves of absence without pay for

illness shall be supported and confirmed by

a medical certifi cate executed by a doctor.

11. Petitioner forwarded to Respondent a note dated

August 17, 1994, from Rev. Dona Knight, a minister, which

claimed that Petitioner was “in extreme distress with sucidal

[sic] tendencies and sevare [sic] depression.” This d ocument,

however, did not state an opinion regarding Petitioner’s ability

to work nor did it provide an expected date of return. In

response to the aforementioned note, Respondent’s benefits

specialist informed Petitioner that the document was inadequate

and that she was required to provide proper medical

certification. Notwithstanding this request, Petitioner failed

to provide any medical documentation indicating a qualifying

reason for her unexcused absence from work or an expected date

of return.

12. As a result of Petitioner's failing to provide the

required documentation, Respondent terminated Petitioner's

employment on September 8, 1994, in accordance with the Labor

Agreement and PSTA attendance policy.

13. After her termination, Petitioner filed a grievance

disputing the termination, and a first - step hearing was held

before PSTA’s deputy of operations, Ed King. Mr. King denied

Petitioner’s grievance and upheld the termination.

14. Thereafter, Petitioner filed a second - step grievance,

and a hearin g was held before PSTA's executive director, Roger

Sweeney, on October 17 and October 31, 1994. At the hearing,

Petitioner did not provide any medical documentation or request

any reasonable accommodation for any alleged handicap or

disability. Therefore , Mr. Sweeny denied the second step

grievance, and the termination was again upheld.

15. Following the grievance hearings, Petitioner filed a

request for arbitration in accordance with the PSTA's Labor

Agreement. An arbitration hearing was held on Octobe r 11, 1996,

at which Petitioner was represented by counsel. After the

hearing, the arbitrator found that Respondent had just cause to

terminate Petitioner based on her failure to provide medical

documentation for her continued absence from work.

16. Afte r being terminated, Petitioner also filed a claim

for unemployment compensation which was denied by a claims

examiner on or about October 6, 1994. Petitioner then appealed

this decision and a hearing on the appeal was held by an Appeals

Referee, where Pet itioner was again represented by counsel.

Based on the evidence presented at the hearing, the Appeals

Referee found that given the length of time Petitioner was

absent from work, it was not unreasonable for Respondent to

expect her to provide medical cert ification for her continued

absence. The Appeals Referee further found that the statement

from Rev. Knight was not a medical document and gave no

assessment of Petitioner’s ability to resume her duties as a bus

driver. The Appeals Referee concluded that Petitioner’s failure

to provide the requested medical documentation was an

intentional violation of her duties and obligations to

Respondent and amounted to misconduct connected with work and,

thus, found that Petitioner was properly disqualified from

rece ipt of unemployment compensation benefits.

17. Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations on or about July 11, 1995,

alleging that Respondent had discriminated against her based on

her handicap. The Charge of Discrimination did not give any

"particulars" regarding the alleged discrimination, but

indicated that the most recent discrimination took place on

September 8, 1994.

18. On or about July 20, 1999, Petitioner filed an Amended

Charge of Discrimination, again alleging that Respondent had

discriminated against her based on her disability. In the

Amended Charge, Petitioner alleged that on September 8, 1994,

she was terminated as a bus driver. She further noted that the

"most recent or continuing discrimin ation took place" on

September 8, 1994. Under the section of the charging document

referred to as "Discrimination Statement," Petitioner stated the

following:

I have been discriminated against because of

my handicap. I believe my rights have been

violate d under the American with

Disabilities Act and the Florida Civil

Rights Act of 1992 as amended.

1. I was not reasonably accommodated.

19. By August 12, 1994, and prior to her termination,

Petitioner had relocated her residence to Marion County,

Florida.

20. Petitioner presented no evidence to establish that she

suffered from any handicap or disability under the terms of the

FCRA, that she required or requested reasonable accommodations

to perform her duties, or that her termination by Respondent was

base d upon or influenced by any alleged disability.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings (Division) has

jurisdiction over the parties and Petitioner’s claims under the

FCRA pursuant to Sections 120.569 and 120.57(1), Florida

Statutes .

22. The Division does not have jurisdiction over

Petitioner’s claims under the ADA; although to the extent the

provisions of the ADA are the same as the FCRA, cases arising

under the ADA may be instructive. James v. Alachua County

Department of Crimina l Justice Service , 2001 WL 1107836

(Fla. Div. Admin. Hrg. Sept. 18, 2001).

23. I n her Amended Charge of Discrimination, Petitioner

contends that she was subject to discrimination, based on an

alleged handicap or disability, was unlawfully denied reasonab le

accommodation, and was wrongfully terminated from her position

as bus operator by Respondent in violation of the ADA and the

FCRA.

24. In this case, Respondent raises the threshold issues

that Petitioner’s claims are time barred, and that Petitioner is

collaterally estopped from arguing that Respondent’s reason for

termination was a pretext for discrimination. These issues must

be resolved prior to addressing the merits of Petitioner’s case.

25. Respondent's timeliness argument is based on several

p rovisions contained in Chapter 760, Florida Statutes. The

relevant provisions of Section 760.11, Florida Statutes, are as

follows:

760.11 Administrative and civil remedies;

construction. –

(3) Except as provided in subsection (2),

the commission sha ll investigate the

allegations in the complaint. Within

180 days of the filing of the complaint, the

commission shall determine if there is

reasonable cause to believe that

discriminatory practice has occurred in

violation of the Florida Civil Rights Act of

1992. When the commission determines

whether or not there is reasonable cause,

the commission by registered mail shall

promptly notify the aggrieved person and the

respondent of the reasonable cause

determination, the date of such

determination, and t he options available

under this section.

(4) In the event that the commission

determines that there is reasonable cause to

believe that a discriminatory practice has

occurred in violation of the Florida Civil

Rights Act of 1992, the aggrieved person ma y

either:

(a) Bring a civil action against the

person named in the complaint in any court

of competent jurisdiction; or

(b) Request an administrative hearing

under ss. 120.569 and 120.57.

The election by the aggrieved person of

filing a civil acti on or requesting an

administrative hearing under this subsection

is the exclusive procedure available to the

aggrieved person pursuant to this act.

(5) In any civil action brought under

this section, the court may issue an order

prohibiting the discrim inatory practice and

providing affirmative relief from the

effects of the practice, including back pay.

The court may also award compensatory

damages, including, but not limited to,

damages for mental anguish, loss of dignity,

and any other intangible inj uries, and

punitive damages. The provisions of ss.

768.72 and 768.73 do not apply to this

section. The judgment for the total amount

of punitive damages awarded under this

section to an aggrieved person shall not

exceed $100,000. In any action or

procee ding under this subsection, the court,

in its discretion, may allow the prevailing

party a reasonable attorney's fee as part of

the costs. It is the intent of the

Legislature that this provision for

attorney's fees be interpreted in a manner

consistent wi th federal case law involving a

Title VII action. The right to trial by

jury is preserved in any such private right

of action in which the aggrieved person is

seeking compensatory or punitive damages,

and any party may demand a trial by jury.

The commiss ion's determination of reasonable

cause is not admissible into evidence in any

civil proceeding, including any hearing or

trial, except to establish for the court the

right to maintain the private right of

action. A civil action brought under this

section shall be commenced no later than 1

year after the date of determination of

reasonable cause by the commission. The

commencement of such action shall divest the

commission of jurisdiction of the complaint,

except that the commission may intervene in

the c ivil action as a matter of right.

Notwithstanding the above, the state and its

agencies and subdivisions shall not be

liable for punitive damages. The total

amount of recovery against the state and its

agencies and subdivisions shall not exceed

the limit ation as set forth in s. 768.28(5).

(6) Any administrative hearing brought

pursuant to paragraph (4)(b) shall be

conducted under ss. 120.569 and 120.57. The

commission may hear the case provided that

the final order is issued by members of the

commiss ion who did not conduct the hearing

or the commission may request that it be

heard by an administrative law judge

pursuant to s. 120.569(2)(a). If the

commission elects to hear the case, it may

be heard by a commissioner. If the

commissioner, after the h earing, finds that

a violation of the Florida Civil Rights Act

of 1992 has occurred, the commissioner shall

issue an appropriate proposed order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. If the administrative law judge,

after the hearing, finds that a violation of

the Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with ch apter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. Within 90 days of the date the

recommended or proposed order is rendered,

the commission shall issue a final order by

adopting, rejec ting, or modifying the

recommended order as provided under ss.

120.569 and 120.57. The 90 - day period may

be extended with the consent of all the

parties. An administrative hearing pursuant

to paragraph (4)(b) must be requested no

later than 35 days after the date of

determination of reasonable cause by the

commission. In any action or proceeding

under this subsection, the commission, in

its discretion, may allow the prevailing

party a reasonable attorney's fee as part of

the costs. It is the intent of t he

Legislature that this provision for

attorney's fees be interpreted in a manner

consistent with federal case law involving a

Title VII action.

* * *

(8) In the event that the commission

fails to conciliate or determine whether

there is reaso nable cause on any complaint

under this section within 180 days of the

filing of the complaint, an aggrieved person

may proceed under subsection (4), as if the

commission determined that there was

reasonable cause.

(Emphasis supplied.)

26. Subsection 7 60.11(3), Florida Statutes, requires the

Commission to make a reasonable cause determination within 180

days of the filing of a claim. Subsection 760.11(4), Florida

Statutes, explains the steps that claimants may take if the

Commission has determined ther e is reasonable cause to believe

that the discriminatory action occurred: the claimant may

either bring a civil action or request an administrative

hearing. Subsections 760.11(5) and (6), Florida Statutes, set

forth the time frames for filing a civil act ion or requesting an

administrative hearing. According to Subsection 760.11(5),

Florida Statutes, any civil action brought under subsection (4)

must be filed no later than one year after the date of the

reasonable cause determination. Subsection 760.11(6 ), Florida

Statutes, provides that any administrative hearing pursuant to

paragraph (4)(b) must be requested no later than 35 days after

the date of determination of reasonable cause by the Commission.

27. Subsection 760.11(8), Florida Statutes, describ es how

claimants who do not receive a reasonable cause determination

within 180 days may proceed. It provides that in such

instances, the claimant or aggrieved person "may proceed under

subsection (4), as if the Commission determined that there was

reason able cause."

28. It is clear from the plain reading of the language of

Subsections 760.11(5) and (6), Florida Statutes, that a

complainant who received a favorable reasonable cause

determination within 180 days has one year from the date of the

determinat ion to bring a civil action or 35 days to request an

administrative hearing. However, Subsection 768.11(8), Florida

Statutes, is silent as to the statute of limitations for

bringing a civil action or requesting an administrative hearing

when, as here, the Commission fails to make any determination

within the allotted 180 days.

29. The Florida Supreme Court has partially addressed this

issue in Joshua v. City of Gainesville , 768 So. 2d 432 (Fla.

2000). In that case, an employee filed a complaint with the

Commission alleging racial discrimination in January 1995, and a

second complaint alleging retaliation in July 1995. After the

Commission failed to make a reasonable cause determination, the

employee filed a civil action in the circuit court on

January 2 0, 1998. In a motion to dismiss, the employer alleged

that the employee's action was time barred by the one - year

statute of limitation provided in Subsection 760.11(5), Florida

Statutes, following the 180 - day time period. The Court rejected

this argument , however, and instead adopted the employee's

reliance on Subsection 95.11(3)(f), Florida Statutes, which

provides a four - year statute of limitations for actions based on

statutory liability. Joshua , 768 So. 2d at 437. See also Seale

v. EMSA Correctional Care, Inc. , 767 So. 2d 1188 (Fla. 2000)

(general four - year statute of limitations for statutory causes

of action embodied in Subsection 95.11(3)(f), Florida Statutes,

applies when the Commission failed to make a cause

determination).

30. Joshua address o nly the time frame for filing a civil

action in court and not the time frame to request an

administrative hearing. However, the principle behind the

holding in Joshua appears to be based on the general rule that

the general statutes of limitations in Chap ter 95, Florida

Statutes, are applied in cases where a specific statute of

limitations is absent, including in administrative proceedings.

See Associated Cocoa Cola v. Special Disability Trust Fund ,

508 So. 2d 1305, 1306 (Fla. 1st DCA 1987) (the general rule is

that "a general statute of limitations may be applied to

administrative proceedings in the absence of a specially

applicable statute of limitations"). This principle is

consistent with the long - held doctrine of statutes of

limitations which is "de signed to promote justice by preventing

surprises through the revival of claims that have been allowed

to slumber until evidence has been lost, memories have faded,

and witnesses have disappeared." Order of Railroad Telegraphers

v. Railway Express Agency, Inc. , 321 U.S. 342, 348 - 49, 64 S. Ct.

582 (1944).

31. In this case, Petitioner filed the subject Amended

Charge of Discrimination almost five years after what Petitioner

alleged to be the last act of alleged discrimination, her

termination date, to reque st an administrative hearing.

Although the imposition of a time limit on requesting an

administrative hearing in this case extinguishes Petitioner's

claims, a four - year statute of limitation balances Petitioner's

right to fair notice, an opportunity to be heard, and her duty

to ensure the expeditious resolution of her claims, with

Respondent's right to assert an adequate defense and to an end

to potential litigation.

32. Applying the principles enunciated in paragraphs 29

and 30 to this case, Petitioner's Amended Charge of

Discrimination is time - barred.

33. The second threshold issue raised by Respondent is

that Petitioner is collaterally estopped from claiming that her

termination was in violation of the Florida Civil Rights Act or

that Respondent's term ination was pretextual for discrimination.

In support of this position, Respondent relies on the findings

and decision made in two proceedings involving Petitioner's

termination as a bus driver with the PSTA, an arbitration

proceeding and an unemployment compensation proceeding.

34. The essential elements of collateral estoppel are that

the parties and the issues be identical, and that the particular

matter be fully litigated and determined in a contest which

results in a final decision of a court of comp etent

jurisdiction. Mobil Oil Corporation v. Robert L. Shevin , 354

So. 2d 372, 374 (Fla. 1977)

35. The parties to the arbitration hearing, the

unemployment compensation hearing, and this proceeding are

identical. However, the issues in those proceedings , while

related to the Petitioner's termination, were not identical to

the issues in this proceeding. In the arbitration hearing, the

issue was whether Petitioner was discharged for just cause; in

the unemployment compensation hearing, the issue was wheth er

Petitioner was discharged for misconduct connected with work.

Here, the issue is whether Respondent violated the FCRA by

terminating Petitioner because of her alleged handicap or

disability.

36. In view of the fact that the issues in the

aforementione d proceedings are not identical to the issue in

this proceeding, the doctrine of collateral estoppel can not be

applied in this case. To establish a case for collateral

estoppel, each of the four elements listed in paragraph 34 must

be established. Havin g failed to establish the second element,

there is no need to address the remaining elements.

Nonetheless, the findings and conclusions reached in the

arbitration hearing and the unemployment compensation hearing

can be used to bolster or support the posi tion taken by

Respondent in this proceeding.

37. Even if Petitioner's claims are not time - barred,

Petitioner has failed to establish a prima facie case of

discrimination under the FCRA.

38. Section 760.10, Florida Statutes, provides in relevant

part the following:

(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, b ecause of such individual's

race, color, religion, sex, national origin,

age, handicap, or marital status.

39. To present a prima facie case of employment

discrimination based on a disability or handicap under the FCRA,

Petitioner must show (1) that she is a person with a handicap or

disability; (2) that she is qualified for the position apart

from her handicap or disability; and (3) that she was terminated

from her position solely based on her handicap or disability.

Smith v. Avatar Properties , Inc. 714 So. 2d 1103, 1106 (Fla. 5th

DCA 1998). Petitioner must establish all elements to meet her

burden. See Mont - Ros v. City of West Miami , 111 F. Supp. 2d

1338, 1350 (S.D. Fla. 2000).

40. The FCRA does not define the term handicap, but the

American Disabilit ies Act of 1990, 42 U.S.C. Section 12101, et

seq., provides guidance. Smith , 714 So. 2d at 1106. Pursuant

to the ADA, "disability" is defined as a physical or mental

impairment that substantially limits one or more of the major

life activities of an indi vidual, a record of such impairment,

or being regarded as having such an impairment. 42 U.S.C.

Section 12102(2). The regulations which implement the ADA

define a mental impairment to include any mental disorder, such

as emotional or mental illness. 29 C. F.R. Section 1630.2(h)(2).

The term "major life activities" are functions such as caring

for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working." 29 C.F.R. Section

1630.2(i). An impairment is "substanti ally limiting" when the

individual is unable to perform a major life activity that the

average person in the general population can perform or is

significantly restricted as to the condition, manner, or

duration under which an individual can perform a part icular

major life activity. 29 C.F.R. 1630.2(j).

41. In the Amended Charge of Discrimination, Petitioner

failed to allege that she had any impairment that would

substantially limit any of her major life activities.

42. Petitioner presented a note from a minister dated

August 17, 1994, which stated that she had been counseling with

Petitioner since March 1994 and that Petitioner was in extreme

distress with suicidal tendencies and severe depression due to

her automobile accident. This document lacks cre dibility in

that it is not from a qualified professional capable of

rendering such a diagnosis. Moreover, there is no indication

that the conditions described in the note substantially limited

Petitioner's ability to perform major life activities or to

wo rk.

43. The evidence established that Petitioner, at one

point, suffered neck and back injuries in a work - related bus

accident, but those injuries are not at issue here. Moreover,

the evidence established that with respect to those injuries,

two physicia ns documented, in May 1994, that Petitioner was fit

to work and there was no reason for her absence from work.

44. Petitioner failed to establish that she had a handicap

or disability under FCRA. Having failed to allege or establish

that she had a handi cap, no further analysis is required.

45. Respondent established, and it is undisputed, that

Petitioner was terminated from her position as a bus driver

because of her failure to appear for work at the expiration of

approved leave and for her failure to p rovide medical

documentation to support her continued absence from work.

46. Even if it is assumed that Petitioner met her initial

burden in this case, which she failed to do, Respondent has

demonstrated that it had legitimate, non - discriminatory reasons

for terminating Petitioner's employment.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner's Amended Charge of

Discrimination be dismissed with prejudice.

DONE AND ENTERED this 25th day of October, 2002, in

Tallahassee, Leon Coun ty, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 25th day of October, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, Florida 32301

Susan Indish - Militello

2835 North Seneca Point

Crystal River, Florida 34429

Alan S. Zimmet, Esquire

Elita D. Cobbs, Esquire

Zimmet, Unice, Salzman & Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Flor ida 33759

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right 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.