01-003354 Thaise A. Hampton vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, April 24, 2002.

Summary: Petitioner failed to show illegal discrimination against her and accordingly, her petition claiming discrimination on the basis of sex, race, and handicap must be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THAISE A. HAMPTON, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3354

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Don W. Davis, Ad ministrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in this case

on March 26, 2002, in Marianna, Florida. The following

appearances were entered:

For Petitioner: Marva A. Davis, Esquire

121 South Madison Street

Post Office Box 551

Quincy, Florida 32353 - 0551

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

STATEMENT OF THE ISSUE

The issue for determi nation is whether Petitioner was

subjected to discrimination in the work environment by the

Department of Corrections (DOC ) due to Petitioner's race, sex, and

handicap in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petition er filed a Charge of Discrimination against DOC with

the Florida Commission on Human Relations (FCHR) on December 3,

1996, alleging that her job had been terminated by DOC on the

basis of Petitioner's race, sex, and handicap.

On or about June 26, 2000, the FCHR issued its

Determination: No Cause.

On or about August 17, 2001, Petitioner filed a Petition

for Relief with the FCHR. Subsequently, on or about August 24,

2001, the case was forwarded to the Division of Administrative

Hearings (DOAH) for forma l proceedings. Initially assigned to

Administrative Law Judge Ella Jane P. Davis, the case was

transferred to Administrative Law Judge Don W. Davis on March 8,

2002, for conduct of all further proceedings.

During the hearing, Petitioner testified on her own behalf

and also presented the testimony of three other witnesses and two

composite exhibits. DOC presented the testimony of four witnesses

along with five exhibits. Both parties presented four joint

exhibits. No transcript of the proceeding was prov ided.

Both parties filed Proposed Recommended Orders which have

been reviewed and considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner, Thaise Hampton, is a female African -

American.

2. On January 20, 1995, Ha mpton was hired by the

Correctional Educational School Authority (CESA) to work as a

teacher at DOC's Apalachee Correctional Institution (ACI).

Hampton had not worked before that time.

3. During the 1995 legislative session, CESA was abolished

by the S tate of Florida Legislature. CESA’s education and job

training program functions were transferred to DOC along with

most positions, inclusive of Hampton’s. Hampton was placed on

probationary status as a DOC employee, effective July 1, 1996.

4. On April 12, 1996, Hampton had an on - the - job injury

when she slipped and fell in the cafeteria of the institution.

The State of Florida's Division of Risk Management (Risk

Management) administered the workers’ compensation case for the

State of Florida. Hampton w as treated by a physician and

excused from work because of the injury.

5. Hampton was evaluated by Michael W. Reed, M.D., an

authorized treating physician for Hampton’s work - related injury,

on July 15, 1996. By correspondence dated July 22, 1996,

D r. Reed reported his evaluation of Hampton. Dr. Reed found

that Hampton suffered from lumbar degenerative disc disease. He

recommended physical therapy and light duty work restrictions on

lifting objects greater than 20 pounds.

6. On August 29, 1996, DOC received further correspondence

forwarded by Risk Management from Dr. Reed. In that

correspondence dated August 28, 1996, Dr. Reed stated that

Hampton could return to work full duty and that she had reached

Maximum Medical Improvement, with a 0 perce nt permanent

impairment rating. He did not indicate that there were any work

restrictions.

7. Hampton reported to work on September 3, 1996. At that

time, she was utilizing a walker to ambulate around the

compound. Joseph Thompson, the Warden at ACI, and the

hiring/firing authority over Hampton at that time, expressed

security concerns that Hampton was utilizing a walker. He asked

the personnel manager, Derida McMillian, to inquire into the

situation.

8. As a result, McMillian contacted Paul Bohac , Hampton’s

supervisor, and requested that both he and Hampton come to her

office. She then informed Hampton that she was not authorized

to utilize a walker unless a physician had prescribed one for

her use. She told Hampton that she was in receipt of a letter

from Dr. Reed that indicated she could return to work on regular

duty with no restrictions and that a walker represents such a

restriction.

9. McMillian then told Hampton that she could not use a

walker at work until she produced a medical report indicating a

need for same. She also told Hampton that a physician’s

statement would be needed or her leave would not be authorized.

Hampton stated that she understood and would provide the

appropriate medical reports on September 5, 1996.

10. McMillian relayed Hampton’s statements that she would

provide documentation by September 5, 1996, to Margaret

Forehand, a personnel technician who was a liaison with the

Division of Risk Management at that time. Because no such

documentation was received by Septem ber 5, 1996, Forehand called

Hampton at home on September 9, 1996. Hampton advised her that

she would get her attorney to obtain a doctor’s statement.

11. On September 10, 1996, Hampton called Forehand and

said that her lawyer would obtain a doctor’s stat ement and send

it to DOC.

12. On September 17, 1996, Hampton contacted Forehand with

questions regarding her paycheck received on September 13, 1996.

Forehand advised that DOC had not received the physician’s

statement that was to have been provided on Se ptember 5, 1996.

Forehand reiterated at that time that Hampton needed to provide

a doctor’s note as to her status. Hampton told Forehand that

her attorney would be taking care of the matter.

13. On September 18, 1996, Forehand spoke with Alice

Taylor at the Division of Risk Management and was advised that

Risk Management had received a letter from a Dr. Ayala regarding

Hampton’s condition. Taylor told Forehand that Ayala's letter

did not change anything -- Hampton had not been removed from work

or prescri bed a walker.

14. Neither McMillian nor Forehand was aware of any

prescription for a walker by a Dr. Randall dated June 3, 1996,

until March 11, 1997, when they were shown the prescription.

Additionally, Forehand had no record indicating that Dr. Randall

was approved by the Division of Risk Management as a treating

physician.

15. On September 19, 1996, Hampton appeared at the

personnel office. She did not have a prescription for a walker

at that time. Thus, Hampton was considered to be on

unauthorized le ave status since September 5, 1996.

16. Warden Thompson terminated Hampton’s employment on

September 19, 2001, for excessive unauthorized absences.

17. Hampton alleged that several white male employees and

an inmate were allowed accommodations: Mr. Ammo ns; Paul Bohac;

and inmate John Peavy. Warden Thompson testified that he

approved a request for Mr. Ammons to use a wheelchair after

receiving a request from the CESA Personnel Office. He was

informed that Mr. Ammons would be retiring in 30 days.

Mr. Ammons was not a DOC employee.

18. Warden Thompson stated that he was not aware that Paul

Bohac had worn a back brace into the office or that he had

brought an ergonomic chair into the office. If he had known

that he was using special medical equipm ent, he would have

requested a prescription for the devices. Paul Bohac was not

utilizing a walker.

19. Warden Thompson was not aware that inmate John Peavy

was issued a walking stick; however, inmates were allowed to

utilize assistive walking devices if the medical department

authorized it.

20. Warden Thompson approved Hampton’s termination because

of her unauthorized absences. She refused to work at full duty

or provide a physician’s statement documenting any work

restrictions.

CONCLUSIONS OF LAW

21. T he Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

22. The authority of the FCHR is derived from Chapter 760,

Florida Statutes. FCHR and the Florida c ourts have determined

that federal discrimination law should be used as guidance when

construing provisions of Section 760.10 of the Florida Civil

Rights Act. See Brand v. Florida Power Corp. 633 So. 2d 504,

509 (Fla. 1st DCA 1994); Florida Department of Community Affairs

v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991). Consequently,

an examination of federal case law analyzing issues similar to

the ones presented in the instant case has been made.

23. The Florida Civil Rights Act provides, in pertinent

pa rt, that it is an unlawful employment practice for an

employer:

(1)(a) to discharge or refuse to hire any

individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment because o f such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

Section 760.10, Florida Statutes.

24. Moreover, although Section 760.10, Florida Statutes,

does not define handicap, Section 760.22(7)(a), Florida

Statutes , part of the Fair Housing Act, defines a handicapped

person as one who "has a physical . . . impairment which

substantially limits one or more major life activities . . . or

is regarded as having, such physical or mental

impairment . . . ." This definition is virtually identical to

the one set forth in the federal Rehabilitation Act, 29 U.S.C.

Section 701, et seq., and related regulations. To wit,

pursuant to Section 504 of the Rehabilitation Act, an individual

with a handicap is one "who (i) ha s a physical or mental

impairment which substantially limits one or more of such

person’s major life activities, (ii) has a record of such an

impairment, or (iii) is regarded as having such an impairment."

29 U.S.C. Section 706(8)(B). The Americans with Disabilities

Act (ADA) also contains a virtually identical definition for

"disability." 42 U.S.C. Section 12102(2).

25. Here, an initial analysis of the case requires a

proper understanding of the burden of proof allocations. As

Hampton has set forth several theories or allegations of

discrimination, each will be examined in turn. First, Hampton

claims discrimination based on handicap. In handicap

discrimination cases where the employment decision is shown to

have been made solely on the basis of the Petitioner’s handicap,

the criteria for burden of proof allocations are those set forth

under Section 504 of the Rehabilitation Act, 29 U.S.C. Section

794.

26. In the present instance, however, Hampton also

contends that the employment decision was made for reasons

unrelated to her alleged handicap. The framework for analysis

is that set forth by the Supreme Court of the United States in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 45 0 U.S. 248

(1981).

27. Pursuant to the McDonnell - Douglas/Burdine cases, the

Petitioner has the burden of establishing by a preponderance of

the evidence a prima facie case of unlawful discrimination. If

a prima facie case is established, the Respondent must then

articulate some legitimate, non - discriminatory reason for the

action taken against the Petitioner. Once this non -

discriminatory reason is offered by the Respondent, the burden

then shifts back to Petitioner to demonstrate that the offered

reason is merely a pretext for discrimination.

28. In applying the McDonnell - Douglas/Burdine test within

the unique context of Hampton's accompanying handicap

discrimination claims, the test must be modified to a certain

degree. Thus, while the allocation of b urden - shifting is

retained, the elements of a prima facie case are as follows:

Hampton must establish that she:

(1) has a disability;

(2) is qualified, with or without

reasonable accommodations, to perform the

essential functions of her job;

(3) ident ified for the employer a

reasonable accommodation; and

(4) was unlawfully discriminated against

because of her disability.

Schwertfager v. City of Boynton Beach , 42 F. Supp. 2d 1347 (S.D. Fla.

1999); Brand , 633 So. 2d at 509.

29. In addition, Hampton m ust demonstrate that the

employer had knowledge of the disability or considered the

employee to be disabled. LaChance v. Duffy’s Draft House , 146

F.3d 832, 835 (11th Cir. 1998); Cook v. Robert G. Waters, Inc. ,

980 F. Supp. 1463, 1467 (M.D. Fla. 1997).

30. Here, Hampton has not shown that she was handicapped

within the meaning of the Florida Civil Rights Act at the time

of her termination.

31. In order to demonstrate that she was handicapped

within the meaning of Chapter 760.10, Florida Statutes, Hampton

n eeds to prove that she had a physical or mental impairment

which substantially limited one or more of her major life

activities or was regarded as having such an impairment. She

has failed to meet this burden. In sum, neither the objective

medical evidenc e presented nor Hampton’s own testimony

demonstrated a substantial limitation of the major life activity

of walking.

32. Further, there is no evidence that DOC perceived Hampton

to have a disability. In fact, based on Dr. Reed’s indications

that Hampton had no restrictions, DOC required a prescription

before it would consider allowing Hampton to use a walker, an

indication that DOC believed that Hampton did not have an

impairment and an entirely reasonable conclusion based on

Dr. Reed’s report.

33 . The evidence clearly demonstrated that Hampton was

terminated because she was on unauthorized leave between

September 5, 2001, and September 19, 2001. Joseph Thompson, the

warden who issued the termination letter, stated that the

termination was for una uthorized leave, and Hampton has

presented no evidence that would tend to undermine the warden’s

statement.

34. Hampton also avers that DOC’s alleged discrimination

against her is indicated by DOC permitting white male employees

and inmates to utilize assi stive devices. This allegation is

without merit. No evidence was submitted as to whether these

individuals had prescriptions for their assistive devices, the

nature of their jobs, whether management had been advised of

their use of assistive devices, or whether they were similarly

situated to her.

35. Even assuming that Hampton had not failed to establish

a prima facie case for her handicap discrimination claim, DOC

offered a legitimate non - discriminatory reason for failing to

accommodate Hampton, her f ailure to provide medical evidence of

an impairment that substantially interfered with a major life

activity.

36. Next, Hampton’s claims of race and sex discrimination

must be analyzed. As stated above, federal discrimination law

should be used as guidan ce when construing provisions of

Section 760.10, Florida Statutes. Thus, the McDonnell -

Douglas/Burdine shifting burden of proof standard is properly

utilized for this portion of Hampton’s claim as well. The

elements of the prima facie case are subtly di fferent, however,

than the elements of her handicap claim. Because the claims are

based on race and sex rather than disability, to establish a

prima facie case Hampton must demonstrate that:

(a) She is a member of a protected group;

(b) She is qualified for the position;

(c) She was subject to an adverse employment decision;

and

(d) She was treated less favorably than similarly -

situated persons outside the protected class.

Canino v. EEOC , 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith v. Georgi a , 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.

1982); Lee v. Russell County Board of Education , 684 F.2d 769,

29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744

F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

37. Here, there is no question that Hampto n is African -

American and female or that she was subjected to an adverse

employment action. Thus, the only issues are whether she was

qualified for her position; whether she was treated less

favorably than similarly - situated persons outside the protected

class; and whether there is a causal connection between her

termination and her membership in a protected class. Hampton

has failed to meet her burden of proof on these issues.

38. First, she has produced no evidence whatsoever that

she was qualified for her position. DOC is not required to

disprove Hampton’s qualifications; rather, Hampton is required

to come forward with affirmative evidence demonstrating her

qualifications and she has not done so.

39. Second, she has not presented any evidence that

s imilarly situated persons not in her protected classes were

treated more favorably. As stated in the analysis of her

handicap claim, there is no evidence that any of the persons

whom she claims were treated more favorably than her were

similarly situated. The undersigned notes that one of the

persons named was an inmate, one did not work for DOC, and none

were probationary status, academic teachers such as Hampton.

More importantly, there is no evidence that any of the persons

were knowingly allowed to u tilize a walker or any other

assistive device without medical authorization.

40. In sum, there is simply no evidence that Hampton was

terminated because of her race or sex. As discussed above, the

only credible evidence presented as to the motivation fo r

Hampton’s termination was the testimony of Warden Thompson, an

African - American male, that the termination was for unauthorized

absences. Thus, as with her handicap claims, Hampton has also

failed to establish a prima facie case for race or sex

discrimi nation.

41. Even had Hampton been successful in establishing the

initial elements of her case discussed above, DOC articulated a

non - discriminatory legitimate reason for the termination --

unauthorized absences -- and there is no evidence that this

explanation was pretextual in nature.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 24th day of April, 2002, in

Tallahass ee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway

Suite 100

Tal lahassee, Florida 32301

Marva A. Davis, Esquire

121 South Madison Street

Post Office Box 551

Quincy, Florida 32353 - 0551

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Cecil Howard, General Coun sel

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.