03-000719 Dusti L. Mccluskey vs. Transitions Optical, Inc. Status: Closed Recommended Order on Thursday, June 5, 2003.

Summary: Employer did not discriminate when it terminated employment of female with carpal tunnel syndrome (CTS). CTS is not a disability, under these facts, and employee did not prove that she was disabled.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUSTI L. McCLUSKEY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0719

)

TRANSITIONS OPTICAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative La w Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on April 23, 2003, in

Clearwater, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Dusti L. McCluskey, pro se

5237 Coral Way, North

St. Petersburg, Florida 33714

For Respondent: Joan M. Vecchioli, Esquire

Stephanie T. Marquardt, Esquire

Johnson, Pope, Bokor, Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 33757 - 1368

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice in violation of the Florida Civil Rights Act

of 1992, Chapter 76 0, Florida Statutes. (References to chapters

and sections are to Florida Statutes (2000) unless otherwise

stated.)

PRELIMINARY STATEMENT

On June 3, 2002, Petitioner filed an Amended Charge of

Discrimination with the Florida Commission on Human Relations

( the Commission). On January 21, 2003, the Commission issued a

determination of no cause. On February 25, 2003, Petitioner

filed a Petition for Relief from an unlawful employment

practice, and the Commission referred the matter to DOAH to

conduct an admin istrative hearing.

On March 18, 2003, Respondent filed a Motion to Dismiss

both the retaliation claim and the discrimination claim. On

April 1, 2003, ALJ T. Kent Wetherell, II, granted Respondent's

Motion to Dismiss without prejudice as to Petitioner's

retaliation claim and allowed Petitioner the opportunity to file

an amended retaliation claim. Petitioner did not file an

amended retaliation claim. Thus, a hearing was held on

Petitioner's remaining discrimination claim.

At the hearing, Petitioner testi fied on her own behalf and

submitted two exhibits for admission into evidence. Respondent

presented the testimony of two witnesses and submitted 15

exhibits for admission into evidence. The identity of the

witnesses and exhibits, and any attendant ruling s, are set forth

in the record of the administrative hearing. Neither party

requested a transcript of the hearing.

Respondent filed a Proposed Recommended Order (PRO) on

May 5, 2003, more than 10 days after the date of the hearing.

Petitioner did not f ile a PRO.

FINDINGS OF FACT

1. Petitioner is an adult female. On October 13, 1997,

Respondent hired Petitioner to work in the assembly department

at a facility in Pinellas Park, Florida, where Respondent

manufactures transition lensesansition lenses are plastic

photo chromic eye lenses that activate when exposed to

ultraviolet light.

2. On June 22, 2000, Dr. Jorge Rodriguez diagnosed

Petitioner with carpal tunnel syndrome. Dr. Rodriguez

restricted Petitioner from using her right hand at work. From

June 22, 2000, through the date of the hearing, Petitioner

received treatment through a workers' compensation claim.

3. After June 22, 2000, Respondent accommodated

Petitioner's medical restrictions by placing Petitioner in a

non - assembly position doing clerical work. Respondent created

the clerical position specifically for Petitioner to accommodate

her medical restrictions. Petitioner remained in the clerical

position until Respondent terminated Petitioner's employment on

May 28, 2001.

4. On March 22, 2001, Petitioner presented Respondent with

a medical report updating her restrictions. After reviewing the

restrictions, Respondent asked Petitioner to perform a

production job with modifications that were within her

restrictions.

5. Petitioner felt uncomfortable with the production job.

Respondent allowed Petitioner to continue in the clerical

position that Respondent had created to accommodate Petitioner.

6. On May 28, 2001, Petitioner submitted a copy of a

Medical Disposition and Treatment Rep ort from Dr. Rodriguez

dated May 24, 2001. Petitioner submitted the medical report and

her weekly time sheet to Mr. Mark James, Petitioner's

supervisor. Petitioner omitted the bottom half of the medical

report and replaced it with a blank, lined piece of paper below

the box where "light duty" was apparently checked.

7. Mr. James informed Petitioner that he needed to see the

entire Report to determine what restrictions, if any, still

applied to Petitioner. Mr. James requested the full medical

report fr om Petitioner two more times that day. Later in the

day, Petitioner submitted another copy of the complete medical

report without the blank, lined piece of paper covering the

bottom half of the report. Once again, the "light duty" box

appeared to be chec ked. The "full duty" box did not appear to

be checked, but certain restrictions modifying the "full duty"

box were marked.

8. Mr. James called Dr. Rodriguez's office and requested

the doctor's office to fax him a copy of the medical report.

The medical report faxed to Mr. James did not have the "light

duty" box checked. Rather, the medical report contained a check

in the "full duty" box and noted additional restrictions.

9. Mr. James turned the medical reports submitted by

Petitioner and faxed by Dr. R odriguez over to Mr. Bill Fitts,

Respondent's Personnel Manager, for further action. Mr. Fitts

concluded that Ms. McCluskey altered and falsified the two

medical reports she submitted to Mr. James.

10. Mr. Fitts made the decision to terminate Petition er's

employment based upon Mr. Fitts' determination that Petitioner

falsified her medical reports. Mr. Fitts' supervisor concurred

with Mr. Fitts' decision, and Respondent terminated Petitioner's

employment.

11. Petitioner was not handicapped or disabled during her

employment with Respondent. Even though Petitioner suffered

from carpal tunnel syndrome, Petitioner was able to perform

clerical jobs for Respondent. Petitioner was able to brush her

own teeth, bathe and shower and take care of other personal

hygiene matters. Petitioner was able to do light housework, was

able to cook for her family, and was able to care for her

children with the exception that she could not lift them.

Petitioner was also able to use a computer to surf the internet

and was a ble to continue her hobby of horseback riding.

12. Petitioner made no credible showing that there was any

causal relationship between her carpal tunnel syndrome and any

adverse employment actions taken by Respondent. Respondent

terminated Petitioner's e mployment for falsifying medical

reports. Irrespective of whether Petitioner actually falsified

the medical reports, Respondent reasonably believed that

Petitioner falsified the medical reports, and there is no

credible and persuasive evidence that the re asons articulated by

Respondent were a pretext for discrimination.

13. Prior to the termination of Petitioner's employment,

Respondent disciplined Petitioner once for failing to call in

sick before her shift pursuant to Respondent's policies. This

disc ipline was consistent with Respondent's discipline policy

for all employees and was not related to Petitioner's carpal

tunnel syndrome.

14. Prior to terminating Petitioner's employment,

Respondent coached Petitioner once for taking breaks at

inappropriate times. The coaching was not a disciplinary

violation and was not related to Petitioner's carpal tunnel

syndrome.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. Sections 120.569 and 120.57(1). The

parties received adequate notice of the administrative hearing.

16. Petitioner is an "aggrieved person" and Respondent is

an "employer" within the meaning of Sections 760.02(10) and

760.02(7), respectively. Section 760.10 makes it unlawful for

Respo ndent to discharge or otherwise discriminate against

Petitioner based on an employee's disability.

17. No direct evidence of discrimination exists in this

case. A finding of discrimination, if any, must be based on

circumstantial evidence.

18. The burde n of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 4ll U.S. 792, 802 - 03 (1973). Federal discrimination

law may be used for guidance in evaluating the merits of claims

arising under Chapte r 760. Tourville v. Securex, Inc. , 769

So. 2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric

Co - op. Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v.

Florida Power Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994).

19. Petitioner has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666

So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff'd , 679 So. 2d

1183 (1996) ( citing Arnold v. Burger Queen Systems , 509 So. 2d

958 (Fla. 2d DCA 1987)).

20. If Petitioner succeeds in making a prima facie case,

the burden shifts to Respondent to articulate some legitimate,

nondiscriminatory reason for its cond uct. If Respondent carries

this burden of rebutting Petitioner's prima facie case,

Petitioner must demonstrate that the proffered reason was not

the true reason, but merely a pretext for discrimination.

McDonnell Douglas , 411 U.S. at 802 - 03.

21. Petitio ner complains that the termination of her

employment and prior adverse employment actions were motivated

by her carpal tunnel syndrome. This is a disparate treatment

claim. To present a prima facie case of disparate treatment

under Chapter 760, Petitione r must first prove that she is

"disabled."

22. In Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams , 534 U.S. 184 (2002), the Court held that carpal tunnel

syndrome can only be considered a disability under the Americans

with Disabilities Act (ADA) if the condition prevents or

severely restricts an individual from performing activities that

are of central importance to most people's daily lives. The

carpal tunnel syndrome's impact must also be permanent or long

term. Id. at 198. Petitioner's inabi lity to do manual work in

a specialized assembly line job is not sufficient proof that

Petitioner is substantially limited in performing manual tasks

to constitute a disability under the ADA. Toyota , 534 U.S. at

201.

23. Petitioner's carpal tunnel synd rome did not prevent

her from performing activities that are of central importance to

most people's daily lives. Petitioner was able to care for

herself and her children and engage in hobbies and other

activities she enjoyed. Petitioner was able to perfo rm clerical

jobs as well as any other job that did not require repetitive

hand movements. Petitioner failed to show that her condition is

permanent or long term. Petitioner failed to show that she is

disabled and thereby failed to establish an essential

requirement for a prima facie case of discrimination.

24. If it were determined that Petitioner were disabled,

Petitioner failed to show that Respondent treated similarly

situated employees without disabilities more favorably.

Disparate treatment of a di sabled person is an essential

requirement for a prima facie case of discrimination. Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

25. If it were determined that Petitioner established the

essential requirements for a prima facie case of discri mination,

Respondent articulated legitimate, non - discriminatory reasons

for any adverse employment action against Petitioner.

Respondent terminated Petitioner's employment because Respondent

reasonably believed Petitioner had falsified medical records.

R espondent also articulated legitimate non - discriminatory

reasons for allegedly adverse employment actions taken against

Petitioner prior to the termination of her employment.

26. Petitioner presented no credible and persuasive

evidence that Respondent's articulated reasons for its actions

were a pretext for discrimination. There is no evidence to

support a finding that Respondent violated Chapter 760.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

that Respondent did not discriminate against Petitioner and

dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of June, 2003, in

Tallahassee, Leon County, Florida.

_________________________________ __

DANIEL MANRY

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 5th day of June, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dusti L. McCluskey

5237 Coral Way , North

St. Petersburg, Florida 33714

Joan M. Vecchioli, Esquire

Johnson, Pope, Bokor, Ruppel & Burns, P.A.

911 Chestnut Street

Post Office Box 1368

Clearwater, Florida 33757 - 1368

Stephanie T. Marquardt, Esquire

Johnson, Pope, Bokor, Ruppel & Burns, P. A.

911 Chestnut Street

Post Office Box 1368

Clearwater, Florida 33757 - 1368

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.