01-002626 Anita Bullard vs. Apalachee Correctional Institute Status: Closed Recommended Order on Thursday, September 13, 2001.

Summary: Petitioner alleged discrimination based on handicap. Recommend dismissal of petition due to failure of Petitioner to demonstrate she had a handicap as defined by the Americans with Disabilities Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITA BULLARD, )

)

Petitioner, )

)

vs. ) Case No. 01-2626

)

APALACHEE CORRECTIONAL )

INSTITUTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

August 14, 2001, in Marianna, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Gary Bullard, Qualified Representative

805 Shelby Avenue

Alford, Florida 32420

For Respondent : Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUE

Whether Respondent committed violations of the Florida

Civil Rights Act of 1992.

PRELIMINARY STATEMENT

On September 25, 1997, Petitioner filed a complaint against

Respondent with the Florida Commission on Human Relations (FCHR)

alleging that she was dismissed from her job without any job

offer within the range of her limitations, and that she had been

discriminated against because Respondent did not attempt to

accommodate her disabilities. She claimed she was unlawfully

terminated. At the hearing she further alleged that she was

harassed.

The FCHR investigated the allegations of Petitioner and on

or about May 17, 2001, determined that there was no reasonable

cause to conclude that an unlawful employment practice had

occurred. On June 20, 2001, Petitioner filed a Petition for

Relief with the FCHR.

The petition was transmitted to the Division of

Administrative Hearings and duly filed on July 1, 2001. The

hearing was set for August 14, 2001, and was held before the

undersigned in Marianna, Florida.

Petitioner was represented by her husband, Gary Bullard, an

experienced labor union mediator who was found to be qualified

pursuant to Rule 28-106.106, Florida Administrative Code.

Petitioner entered six items into evidence. Respondent had

seven items admitted. Petitioner called five witnesses and

testified in her own behalf. Respondent offered the testimony

of one witness. No transcript was prepared.

Both parties timely filed Proposed Recommended Orders which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner began working at Apalachee Correctional

Institute ( ACI) in 1993. ACI had about 1,600 to 1,800 inmates

during times pertinent to this case. The inmates assigned to

ACI are those found to be mentally disturbed. ACI is divided

into the East Unit and the West Unit.

2. Petitioner was hired as a Clerk Typist Specialist. She

worked in the health services area performing typing and filing

in the East Unit.

3. In time Petitioner developed carpal tunnel syndrome.

She had three surgeries, two of which involved her wrists.

These medical problems prevented her from working a normal

schedule and she had to expend her leave in order to cover her

absences. Because of the problems with her wrists, she had,

from time to time, difficulty typing without experiencing pain.

4. Ann Lashley was employed in the West Unit. In 1995,

she had a disagreement with her co-workers and, as a result, she

was transferred to the East Unit. Subsequently, Petitioner was

moved to the West Unit.

5. Much of the work accomplished by the clerk-typists was

related to transcribing psychiatrists' notes. The psychiatrists

in the East Unit often typed their own notes. The psychiatrists

in the West Unit did not. Therefore, there was more typing for

the clerk-typists in the West Unit. Petitioner had difficulty

keeping up with this additional typing.

6. John Frank Williams was the overall supervisor of the

East and West Units. He does not know, or in any event does not

recall, why Petitioner was transferred.

7. Petitioner filed a workers' compensation claim based on

a date of accident of August 1, 1993.

8. Petitioner's medical situation was coordinated with the

Florida Division of Risk Management. A contract service,

Compensation Rehabilitation Associates, was employed to audit

Petitioner's work station and to determine what, if any, special

equipment might assist Petitioner in accomplishing her

employment duties without pain.

9. A representative of Compensation Rehabilitation

Associates opined that Petitioner required an ergonomically

designed chair. Mr. Williams ordered one for her and Petitioner

used it.

10. Mr. Williams had work which had to be addressed.

Nevertheless, he was aware of Petitioner's limitations and need

to visit doctors and made diligent efforts to resolve the

situation, including scheduling her work hours in a manner which

would permit her to seek medical care.

11. Petitioner related the following events which she

contended constituted harassment:

a. In 1994, when she first had problems with one of her

wrists, she was told by Kenneth Swann to type with one hand.

b. She was also told, at some time, by Dr. Cherry to

type with one hand.

c. She attended a meeting where Mr. Williams said,

apparently in response to her continuing medical difficulties,

that no one would want her.

d. Joseph Thompson, at some point, told her she was not

a team player.

12. Dr. Loeb placed Petitioner at maximum medical

improvement (MMI) on June 6, 1995 with no impairment or

restrictions. Dr. Vogter placed the Petitioner at MMI on

June 25, 1995, with an impairment rating of 17 percent, with

restrictions of light duty and no continuous transcription work.

Dr. Chason placed the Petitioner at MMI on April 7, 1998, with

regard to psychological care, with a zero impairment rating.

13. In a letter from Margaret Forehand dated August 12,

1996, a Personnel Technician II of ACI, Petitioner was informed

that she was being placed on alternate duty. This letter

outlined Petitioner's proposed work hours and took into

consideration her need for reduced hours of typing and her need

to visit her doctors.

14. Petitioner, in response to this letter, declined to

return to work. She had failed to report for work on August 15,

1996, and has been continuously absent since that date. Her

sick leave was exhausted on October 4, 1996. Her Family Medical

Leave Act benefits terminated on November 17, 1996.

15. In a letter dated November 25, 1996, C. W. Sprouse,

Superintendent of ACI, informed Petitioner that another position

had been found for her and invited her to contact Ms. DeDe

McMillian so that she could begin working.

16. On or about December 10, 1996, Petitioner called

Ms. McMillian and declined the offer.

17. In a letter dated December 17, 1996, C.W. Sprouse

informed Petitioner that a personnel action was being taken

which could result in her dismissal. She was further informed

that she was entitled to a predetermination conference.

18. Petitioner did not request a predetermination

conference and on January 3, 1997, her employment with ACI was

terminated by Superintendent Sprouse.

19. On May 26, 1998, a Judge of Compensation Claims

entered an order adopting a stipulation between Petitioner, ACI,

and the Florida Division of Risk Management whereby Petitioner

received a lump sum of $50,000. The stipulation further recited

that the stipulation resolved any and all issues regarding any

aspect of the Petitioner's workers' compensation benefits.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.57(1), Florida Statutes.

21. Petitioner is a "person" within the meaning of

Section 760.02(6), Florida Statutes.

22. Respondent is an "employer" within the meaning of

Section 760.02(7), Florida Statutes.

23. Petitioner claimed work-related injuries and

testified, without specificity, that she had a host of health

problems. These matters were addressed by the workers'

compensation settlement and she can have no further relief from

the Florida Civil Rights Act of 1992, Section 760.01, et seq.

(the Act) with regard to these matters.

24. Alternatively, Petitioner relies on the Act for her

claim of wrongful termination and discrimination because of her

disability. The Act prohibits certain specified unlawful

employment practices and provides remedies for such violations.

25. Section 760.10 provides:

(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 individual's race, color, religion, sex, national

origin, age, handicap, or marital status.

26. The allegations of this case concern discrimination

based on handicap. The Act is patterned after Title VII of the

Civil Rights Act of 1964, Title 42 U.S.C. Section 2000e-2.

School Bd. of Leon County v. Weaver , 556 So. 2d 443 (Fla. 1st

DCA 1990). The Act incorporates the Americans with Disabilities

Act of 1990 (ADA). See Title 42 U.S.C. Section 12101. Because

the Act is patterned after a federal law on the same subject,

the Florida law must be accorded the same construction as in the

federal courts to the extent the construction is harmonious with

the spirit of the Florida legislation. O'Loughlin v. Pinchback ,

579 So. 2d 788 (Fla. 1st DCA, 1991).

27. In this case, grounded in discrimination due to

alleged handicap,

. . . the employee has the initial burden of

establishing a prima facie case of intentional

discrimination, which once established raises a

presumption that the employer discriminated against

the employee. If the presumption arises, the burden

shifts to the employer to present sufficient evidence

to raise a genuine issue of fact as to whether the

employer discriminated against the employee. The

employer may do this by stating a legitimate,

nondiscriminatory reason for the employment decision ;

a reason which is clear, reasonably specific, and

worthy of credence. Because the employer has the

burden of production, not one of persuasion, which

remains with the employee, it is not required to

persuade the trier of fact that its decision was

actually motivated by the reason given. If the

employer satisfies the burden the employee must then

persuade the fact finder that the proffered reason for

the employment decision was a pretext for intentional

discrimination. The employee may satisfy this burden

by showing directly that a discriminatory reason more

likely than not motivated by the decision, or

indirectly by showing that the proffered reason for

the employment decision is not worthy of belief. If

such proof is adequately presented, the employee

satisfies his or her ultimate burden of demonstrating

by a preponderance of evidence that he or she has been

the victim of intentional discrimination.

Department of Corrections v. Chandler , 581 So. 2d 1183 (Fla. 1st

DCA 1991).

28. In order for Petitioner to prevail in a case alleging

discrimination and obtain the relief she seeks, Petitioner must

establish that Respondent's employment decision was based on a

protected status, i.e., Petitioner's handicap. In this case,

Petitioner has the burden of presenting evidence sufficient to

establish that her handicap was the determining factor in the

employment decision made to discharge her. See U.S. Postal

Service Board of Governors v. Aikens , 460 U.S. 711, 715 (1983) ;

Pena v. Brattleboro Retreat , 702 F.2d 812 (10th Cir. 1978). In

other words, Petitioner must prove that what motivated

Respondent to discharge her was her physical or mental

condition, or Respondent's perception of her physical or mental

condition.

29. The FCHR has adopted federal standards for allocating

the burden of proof in handicap discrimination claims. See ,

e.g., Hunter v. Winn-Dixie Stores, Inc. , FCHR Case No. 82-0799

(Feb 23, 1983).

Accordingly, Petitioner must prove:

1. That (she) is a handicapped person within the

meaning of the Florida Civil Rights Act ;

2. That (she) is otherwise qualified for the position

in question; and

3. That (she) was discharged from her position solely

by reason of her handicap. Brand v. Florida Power

Corporation , 633 So. 2d 504 at 510 (Fla. 1st DCA

1994).

30. Under the Act and the federal ADA, a person is

considered to have a disability if he or she: (1) has a physical

or mental impairment which substantially limits one or more of

major life activities; (2) has a record of such impairment; and

(3) is regarded as having such impairment. Gordon v. E. L. Hamm

and Associates , 100 F.3d 1029, 1032 (11th Cir. 1996).

31. Petitioner, at all times relevant to this action,

failed to prove that she suffered from a disability, and that

she is a handicapped person within the meaning of the Act or the

ADA. See Sutton v. United Air Lines, Inc. , 119 S. Ct. 2139

(1999) and Murphy v. United Parcel Service , 119 S. Ct. 2133

(1999).

32. Petitioner claimed that she was harassed because of

her disabilities. Harassment may be evidence of discrimination.

The facts of this case, however, failed to prove that either

harassment or discrimination occurred.

33. Petitioner was terminated solely because of her

failure to report to work.

34. Petitioner adduced no evidence that any supervisor or

other employee made the decision to terminate her based upon a

handicap, either perceived or real. To the contrary, the

evidence established that the management and staff of ACI made

sincere and continuing efforts to accommodate her disability.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered dismissing the Petition.

DONE AND ENTERED this 13th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of September, 2001.

COPIES FURNISHED :

Gary Bullard, Qualified Representative

805 Shelby Avenue

Alford, Florida 32420

Ernest L. Reddick, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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.