03-001712 Sharon L. Harris vs. Hydro/Aluminum North America Status: Closed Recommended Order on Thursday, August 24, 2006.

Summary: Respondent did not discriminate or retaliate against Petitioner for making a sexual harassment complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON L. HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1712

)

HYDRO/ALUMINUM NORTH AMERICA, )

)

Respondent. )

)

RECOMMENDED ORDER AF TER REMAND

A formal hearing after remand was conducted in this case on

May 24, 2006, before Suzanne F. Hood, Administrative Law Judge

with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sharon L. Harris, pro se

3606 Fort Peyton Circle

St. Augustine, Florida 32016

For Respondent: Alexandra Hedrick, Esquire

Alexandra Hedrick, P.L.

4446 Hendricks Avenue, Suite 398

Jacksonville, F lorida 32207

Suzzanne W. Decker, Esquire

Miles & Stockbridge, P.C.

10 Light Street

Baltimore, Maryland 21202 - 1487

STATEMENT OF THE ISSUE

This issue is whether Resp ondent discriminated against

Petitioner in its employment practices contrary to Section

760.10, Florida Statutes.

PRELIMINARY STATEMENT

Administrative Law Judge Stephen F. Dean issued a

Recommended Order in this case on April 26, 2004. According to

the Recommended Order, Petitioner Sharon L. Harris (Petitioner)

did not show that Respondent Hydro/Aluminum North America

(Respondent) had terminated her employment based on a

discriminatory or retaliatory animus prohibited by Chapter 760,

Florida Statutes. Judge Dean recommended that the Florida

Commission on Human Relations (FCHR) dismiss Petitioner's

Petition for Relief.

Both parties filed Exceptions to Judge Dean's Recommended

Order. Petitioner argued that she had not been afforded ample

opportunity t o complete her cross - examination of Joe Roberts and

to present rebuttal testimony. Respondent took exception to the

Recommended Order to the extent that it was overbroad and made

unsupported conclusions regarding Respondent's obligations to

put Petitioner back to work based on workers' compensation law.

On October 1, 2004, FCHR issued an Order Remanding Petition

for Relief from an Unlawful Employment Practice. Said order

remanded the case to provide Petitioner with an opportunity to

complete her cross - examination of Joe Roberts and to allow her

to present rebuttal evidence. FCHR found it unnecessary to

address other exceptions.

On November 12, 2004, Judge Dean entered an Order

Supplementing the Record and Requesting Further Consideration.

On Februa ry 24, 2006, FCHR issued its second Order Remanding

Petition for Relief for an Unlawful Employment Practice.

On March 2, 2006, the undersigned issued an Order Reopening

File to provide Petitioner with an opportunity to complete

cross - examination of one witness and to present rebuttal

evidence, if any. On March 24, 2006, the parties filed a Joint

Response to Order Reopening File: Providing Mutually Convenient

Hearing Dates.

In a Notice of Hearing dated March 27, 2006, the

undersigned scheduled the he aring for May 24, 2006.

On May 12, 2006, the parties filed a Joint Pre - hearing

Submission. According to the pre - hearing statement, the parties

did not intend to file any additional exhibits.

On May 23, 2006, the day before the final hearing,

Petitio ner filed Motions to Request a Continuance to Subpoena

Documentation and Witnesses, and to Submit Additional

Documentary Evidence. After hearing oral argument on May 24,

2006, the undersigned denied these motions on the record.

During the final hearing , Petitioner completed her cross

examination of Joe Roberts and presented her own rebuttal

testimony. She did not present the testimony of any additional

witnesses.

Petitioner offered three exhibits for admission into

evidence. Petitioner proffered Exh ibits P144 and P145, which

are excluded as inadmissible hearsay. Petitioner's Exhibit P146

is hereby admitted as evidence.

On July 7, 2006, the court reporter filed a transcript of

the May 24, 2006, final hearing.

On July 17, 2006, Respondent filed a Prop osed Supplemental

Recommended Order After Remand. Petitioner did not file

supplemental findings of fact or conclusions of law.

In preparation for the final hearing, the undersigned

reviewed the entire record, including four volumes of transcript

and all e xhibits from the prior hearing. The following exhibits

have been admitted as evidence in this case: R9, R10 - R25, R30,

R39, R54, R56 - R59, R63, R66 - R68, R70, R82 - R83, R86, R98 - R99,

R104, R106 - R107, R110 - R111, R113 - R114, R117, R130, R136, R137,

R138, R140, R141, and R143. Petitioner proffered Exhibit P1,

which was excluded as inadmissible hearsay.

FINDINGS OF FACT

1. Respondent produces drawn and extruded aluminum

products.

2. Petitioner was hired as a saw operator in the drawn

tube department in 1997 . Her supervisor was Sherry Hontz.

3. Petitioner was promoted to quality auditor technician

in a different department in August of 1998. Her supervisor was

Nick Newinski.

4. On December 14, 1998, Petitioner complained to Roger

Penn, the p lant m anager , about sexual harassment on the job.

Mr. Penn told Petitioner to take her complaint to Joe Roberts,

Respondent's Human Resources m anager.

5. At Mr. Roberts' request, Petitioner provided him with a

handwritten complaint. Petitioner complained that two c o -

workers had called her derogatory names, "Boom Boom" and "Big

Tits," and had started rumors of alleged sexual relationships

she was having with co - workers. Petitioner also complained that

her former supervisor, Ms. Hontz, had been unfair to her after

Pe titioner dated Ms. Hontz's former boyfriend. Petitioner

stated that she was humiliated by the name - calling and rumors.

6. Mr. Roberts investigated the complaint, and interviewed

nine employees, in addition to Petitioner. Roberts interviewed

everyone ide ntified in Petitioner's written complaint. Based

upon his investigation, four employees, Don Carver, Sherry

Hontz, Frank Small, and Carolyn Whitecloud, received written

reprimands on December 21, 1998, for either the use of offensive

names, gossiping, or failing to stop the conduct. The letter to

Ms. Whitecloud, the operations manager for drawn tubing,

specifically cautioned her as the manager to ensure that no

retaliation, direct or indirect, was taken against Petitioner.

7. Petitioner felt that Mr. R oberts' investigation was

over - broad and touched on her personal life more than was

necessary; however, there was no evidence of this beyond her

allegations.

8. Mr. Roberts retained, in accordance with his standard

practice, Petitioner's complaint and t he notes of his

investigation in a file separate from Petitioner's personnel

file. Mr. Roberts did not keep a "secondary secret file" in

order to "build a case against her."

9. Around the time of Mr. Roberts' investigation, two

female co - workers complain ed to Mr. Roberts that Petitioner had

rubbed her breasts against a male employee. Mr. Roberts

interviewed the male employee, who denied the allegation.

Mr. Roberts took no further action. Petitioner was not

disciplined as a result of this complaint.

1 0. In 2000, Troy Turlington, a male employee, complained

to Mr. Roberts that Petitioner had made a sexual comment to him.

However, Mr. Turlington was adamant that he did not want any

action taken. Therefore, Mr. Roberts made a confidential record

of the complaint. There was no evidence that Mr. Roberts

investigated the allegation or took any action against

Petitioner.

11. Following Respondent's official reprimands related to

Petitioner's sexual harassment complaint, no employee made

sexual comments in Petitioner's presence. However, Petitioner

believed there were "whisperings" and other indications of co -

worker displeasure with Petitioner's complaint and the outcome.

12. After December 1998, Petitioner did not complain again

to management of being s ubjected to name - calling or of

retaliation.

13. As a quality control technician, Petitioner's job

responsibilities occasionally required her to place "holds" on

production material that she determined did not meet

specifications. A "hold" prevented the material from continuing

through production to the customer. Placing a "hold" on

material usually upset production personnel, who were

disrespectful and made snide remarks about Petitioner's

competence.

14. Petitioner's supervisor, Mr. Newinski, revie wed her

work on one occasion and instructed her to pass the material.

Petitioner disagreed with Mr. Newinski, refusing to remove the

"hold" she had placed on the parts over her own signature.

Mr. Newinski and Carmen Morello, a higher - level manager,

discu ssed Petitioner's refusal to remove the "hold," which they

deemed insubordination.

15. Petitioner felt that she was being placed in an unfair

position. Petitioner was upset because management did not

support her determination that the material failed t o meet

specifications. However, there is no evidence that Mr. Newinski

and Mr. Morello discriminated against Petitioner or otherwise

retaliated against her for making her prior complaint.

16. Mr. Newinski and Mr. Morello counseled Petitioner on

another occasion for spending time socializing with other

employees when she was supposed to be working. Petitioner did

not agree with this characterization of her actions. Again,

Mr. Newinski and Mr. Morello's counseling session with

Petitioner was not meant t o be discriminatory or retaliatory.

17. In early March 2000, Petitioner declined to discuss

with Mr. Newinski an incident involving another employee.

Petitioner had observed the employee engaging in lifting heavy

materials by himself, a potentially dan gerous situation.

Petitioner decided that the incident had been resolved by the

employee's supervisor and that she did not need to discuss it

with Mr. Newinski. Petitioner also felt that Mr. Newinski's

inquiry was vague. She was not inclined to discuss the matter

with him unless he could be more specific about the incident.

18. Mr. Newinski and Mr. Morello sought Mr. Roberts'

involvement to force Petitioner to discuss the incident.

Respondent suspended Petitioner from work when she refused to go

to M r. Roberts' office.

19. Petitioner presented testimony that she had spoken

with the head of the company, Al Styring. According to

Petitioner, Mr. Styring indicated that Petitioner should take up

issues involving her employment with David Black, Respond ent's

v ice p resident of Human Resources at a level above Mr. Roberts.

Mr. Roberts was never aware of any decision for Petitioner to

discuss her employment problems with Mr. Black.

20. The greater weight of the evidence indicates that

Respondent conside red Petitioner for promotions following her

complaint of sexual harassment. However, Respondent promoted

persons with greater experience to these positions. Respondent

did not discriminate against Petitioner or retaliate against her

in regard to the prom otions.

21. Petitioner was unable to demonstrate that Respondent

did not give her as much opportunity to earn overtime following

her sexual harassment complaint. The most persuasive evidence

indicates that Petitioner had less overtime than others even

be fore her complaint. Additionally, employees with more

overtime were responsible for work in different departments.

22. Carolyn Whitecloud was a supervisor in the drawn tube

department. On one occasion, Ms. Whitecloud yelled at

Petitioner because she t hought Petitioner was interfering with

another employee's work. Petitioner explained that she was only

observing the line to determine if defective metal poles were

passing through the inspection and packing procedure. Despite

Petitioner's explanation, t he other employee received a written

reprimand. There is no evidence that Respondent disciplined

Petitioner as a result of this incident or imposed discipline on

Petitioner's co - worker just to spite Petitioner.

23. On March 27, 2000, Petitioner slipped in a bathroom

while at work. She sustained soft tissue injuries.

24. Petitioner received treatment from various health care

providers during the course of her recovery. Her physicians

included Dr. Green, Dr. Noran, and Dr. Pham.

25. Eight days aft er the injury, on April 4, 2000,

Petitioner's treating physician released her to return to work

on light duty with no bending and no lifting greater than 15

pound s. Respondent returned Petitioner to light - duty work

within these limitations. However, Peti tioner suffered severe

pain from leaning over and could not do the work. Additionally,

Petitioner's prescription medications made her groggy,

lethargic, and dizzy.

26. Although Petitioner wanted to return to work and

Respondent wanted to bring her back to work, Petitioner could

not perform her required duties. After returning to work for

only one day, Petitioner decided that she needed more time to

heal.

27. On May 23, 2000, Petitioner's physician again released

her to return to work with the specific restrictions of no

overhead lifting and no lifting over ten pounds. Petitioner was

unable to lean over and measure the materials as required by her

position. She complained to Mr. Newinski, who assigned her to

completing paper work. Again, after one da y at work, Petitioner

was unable to continue.

28. By July 13, 2000, Petitioner had been on medical leave

for over 12 weeks. At that time, Respondent decided that it did

not need a designated employee to perform Petitioner's

responsibilities as quality auditor. Faced with the need to cut

costs, Respondent determined that its employees would continue

to perform t he quality auditor's duties as t hey had during

Petitioner's absence.

29. Respondent did not let Petitioner know that her

position no longer e xisted. However, Respondent did not

terminate Petitioner's employment. She continued as an employee

on medical leave.

30. On November 13, 2000, Dr. Noran released Petitioner to

return to work with restrictions based upon Petitioner reaching

maximum me dical improvement (MMI). Her restrictions at that

time included limited overhead work and limited cervical

flexion.

31. Respondent has different policies for assigning work

before and after MMI. Pre - MMI, Respondent attempts to find

temporary light - dut y work such as office work for recovering

employees. Once an employee reaches MMI, Respondent must

determine whether the employee can perform the essential

functions of an open position. This process could include an

analysis of reasonable accommodations if appropriate.

Respondent does not offer permanent light - duty jobs. Petitioner

did not identify any employees with permanent restrictions after

MMI who received permanent light - duty work.

32. On November 13, 2000, Petitioner met with Wayne

LaPierre, Respondent's safety and environmental manager, to

discuss her limitations. Petitioner indicated that she was

still having trouble bending over to work. Mr. LaPierre

believed that the doctor's restriction of "limited cervical

flexion" was not in line wit h Petitioner's complaints of pain.

Mr. LaPierre requested Respondent's workers' compensation

insurer, Fireman's Fund, to obtain a clarification of

Petitioner's work restrictions from her treating physician.

33. In Janaury 2001, Mr. LaPierre spoke with Pe titioner.

Once again Mr. Lapierre explained that he needed further

clarification from her doctor with respect to her restrictions.

In response to Mr. LaPierre's request for help, Petitioner

stated that she could not get any more information from the

doct or than Respondent could.

34. Fireman's Fund advised Mr. LaPierre that it had tried

unsuccessfully on many occasions to obtain a clarification of

Petitioner's limitations from Dr. Noran. Respondent continued

to request Petitioner's assistance in obtain ing this information

from her doctor.

35. On March 19, 2001, Petitioner wrote to Mr. LaPierre to

inquire about the status of her return to work. Mr. LaPierre

responded in a letter dated March 22, 2001, advising Petitioner

that he still needed clarifica tion of her work restrictions and

that Fireman's Fund and her doctor had held a conference.

Mr. LaPierre informed Petitioner that he did not know the

outcome of the conference.

36. On April 19, 2001, Petitioner wrote to Mr. LaPierre

again. She complaine d about Respondent's inability to return

her to work.

37. Mr. LaPierre reached the conclusion that Dr. Noran was

not going to clarify Petitioner's work restrictions for

Fireman's Fund. He then attempted to use other means to obtain

the information.

38. On April 22, 2001, Mr. LaPierre sent Petitioner the

job descriptions, including the physical requirements, for all

open positions at the plant. This was consistent with

Mr. LaPierre's treatment of other employees attempting to return

to work.

39. On May 5, 2001, Petitioner obtained a more detailed

medical note from a different workers' compensation physician,

Dr. Pham. The note indicated that Petitioner's restrictions

included no lifting and no repetitive bending and twisting of

the upper back and neck. Otherwise, Dr. Pham refused to fill

out any of Respondent's paperwork relative to the open

positions.

40. On May 15, 2001, Mr. LaPierre acknowledged

Petitioner's new restrictions. He requested Petitioner to meet

with him to discuss a reasonable accommodation. Mr. LaPierre

also sent Petitioner three more job descriptions for open jobs

in the plant.

41. On May 29, 2001, Petitioner responded that none of the

open positions met her restrictions. Petitioner further stated

that it was up to Mr. La Pierre to determine if "there are jobs

available or not that fall under the guidelines set by the

doctor's office." She did not agree to meet with Mr. LaPierre

to discuss a reasonable accommodation.

42. On June 8, 2001, Mr. LaPierre wrote to Petitioner t o

inform her that there were no available jobs that met the

restrictions of no bending or twisting. LaPierre requested

Petitioner to let him know when her situation changed so that

they could "explore other options at that time." Petitioner

never contact ed Mr. LaPierre again.

43. Mr. LaPierre did not intentionally discriminate or

retaliate against Petitioner. No one told him not to cooperate

with Petitioner or to refuse to put her back to work.

44. On August 13, 2001, Petitioner's workers' compensa tion

attorney signed a Notice of Voluntary Dismissal of Petition for

Benefits. At that time, Respondent believed that it had settled

Petitioner's workers' compensation claims as well as all other

claims.

45. On August 27, 2001, Respondent officially te rminated

Petitioner's employment. Respondent took this action without

notice to Petitioner because Respondent believed that part of

the settlement agreement included Petitioner's resignation.

Respondent did not have a practice of sending termination

lett ers to employees under these circumstances. Additionally,

Petitioner had informed Respondent that she could not perform

any of the open jobs.

46. Sometime after August 13, 2000, Petitioner changed her

mind about voluntarily dismissing her workers' com pensation

Petition for Benefits. Petitioner would not consummate the

settlement agreement because she did not want to waive her

retaliation claim.

47. On April 15, 2003, Petitioner's counsel signed a

Notice of Voluntary Dismissal Without Prejudice in P etitioner's

workers' compensation case against Respondent.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties pursuant to

Sections 120.569, 120.57(1), and 760.11, Florida Statutes

(2005).

49. Petitioner filed a Petition for Relief in which she

alleged that Respondent had discriminated against her by failing

to permit her to return to work after an injury on the job that

required her to miss work, notwithstanding medical clearance to

ret urn to work. Petitioner alleges that Respondent did this in

retaliation for her having filed a discrimination complaint.

50. Section 760.10, Florida Statutes, states as follows in

relevant part:

(1) It is an unlawful employment practice

for an emplo yer:

(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,

of privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under thi s section, or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section.

51. Petitioner has the burden of proving by the

preponderance of the evidence that Res pondent committed an

unlawful employment practice. Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

52. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance wh en

construing Section 760.10, Florida Statutes. See Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

53. Petitioner's initial burden is to establish a prima

facie case of unlawful discrimination. See McDonnell - Douglas

Corp. v. Gr een , 411 U.S. 792 (1973); Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981); and

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). If

Petitioner makes a prima facie case, Respondent must show some

legitimate, non - discrimina tory reason for the action taken

against Petitioner. Id. Once Respondent offers this non -

discriminatory reason, the burden shifts back to Petitioner to

demonstrate that the reason is merely a pretext for

discrimination. Id.

54. In order to establish a prima facie case of

retaliation, Petitioner must show the following: (a) She

engaged in a protected activity; and (b) Respondent took an

action against Petitioner "that would have been materially

adverse to a reasonable employee or applicant." See Burl ington

Northern & Santa Fe Railway Co. , 126 S. Ct. 2405 (2006).

55. Petitioner met the first prong of her initial burden.

The evidence shows that Petitioner made an internal sexual

harassment complaint in December 1998. After Respondent took

prompt co rrective action, Petitioner did not raise further

complaints of continued sexual harassment with management.

56. As to the second prong of Petitioner's prima facie

case, Petitioner presented evidence that Respondent passed her

over for promotions in 199 9, suspended her from work in March

2000, eliminated her job as quality auditor in July 2000,

prevented her from returning to work after she reached MMI in

November 2000, and terminated her employment in August 2001.

57. On the other hand, Respondent pr offered a legitimate

non - discriminatory reason for each action it took and each

decision it made. First, Respondent did consider Petitioner for

promotions but selected other applicants who were well qualified

or better qualified for the positions.

58. Second, Respondent suspended Petitioner from work

because she refused to go to Mr. Robert's office to discuss an

incident involving a safety issue. This was the second time

Petitioner had been insubordinate. The first time was when she

refused to take a "hold" off production material after being

given a direct order to do so.

59. Third, Respondent eliminated Petitioner's position of

quality auditor only after Petitioner had been out of work in

excess of 12 weeks. Respondent could have terminated Peti tioner

employment at that time. See 29 C.F.R. § 825.200. In fact,

Respondent could have filled Petitioner's position with another

employee. However, Respondent determined that it did not need

the position and has never filled it.

60. Fourth, Respondent had a legitimate reason for

requesting clarification of Petitioner's work restrictions.

Respondent's inquiry was job - related and consistent with

business necessity. Petitioner's ability to perform job - related

functions for any available position was a r easonable concern

under the facts of this case. See 42 U.S.C. § 12112(d)(4).

There was no evidence that Respondent treated Petitioner

different from other employees returning to work with permanent

restrictions. Respondent made a good faith effort to cl arify

Petitioner's restrictions and cannot be held responsible for the

doctor's refusal to provide additional information.

61. Petitioner concedes that she could not perform any of

the open jobs. She never requested an accommodation and even

refused to discuss possible accommodations with Mr. Roberts.

Respondent was not required to create a permanent light - duty job

for Petitioner. See Sheets v. Florida Coast Railway Co. , 132 F.

Supp. 2d 1031 (S.D. Fla. 2000).

62. Finally, Respondent terminated Peti tioner's employment

after being misinformed that she had settled her claims for

discrimination/retaliation as well as her workers' compensation

claims. Respondent believed that Petitioner had agreed to

termination/resignation as part of her settlement agr eement. As

stated above, Respondent could have terminated Petitioner's

employment in July 2000.

63. Respondent's reasons for taking the actions it took

and decisions it made are not a pretext for discriminatory or

retaliatory behavior. Petitioner's se xual harassment complaint

occurred 22 months before she attempted to return to work with

permanent medical restrictions and 31 months before Respondent

terminated her employment. A time gap between the protected

activity and any alleged adverse employment action can undermine

a complaint that "the former caused the latter." See Maniccia

v. Brown , 171 F. 3d 1364, 1370 (11th Cir. 1999), citing O'Connor

v. Chicago Transit Auth. , 985 F. 2d 1362, 1370 (7th Cir. 1993).

64. Petitioner has not shown pretext beca use Mr. Roberts

listened to complaints from other employees about Petitioner's

alleged sexual conduct and statements. Mr. Roberts properly

investigated these complaints, taking no action against

Petitioner.

65. Petitioner may have encountered normal wo rkplace

conflict. For instance, the production employees may have been

rude when she placed a "hold" on production material. Other

employees may have appeared to blame Petitioner when they were

disciplined. A supervisor may have counseled Petitioner or even

yelled at her because the supervisor mistakenly believed that

Petitioner was interfering with another employee's work.

Nevertheless, there is no reason to believe that such conflict

was linked to Petitioner's sexual harassment complaint so as to

be a pretext for unlawful retaliation.

66. If Petitioner had pled a claim of disability

discrimination, she would have lost that claim as well. Florida

courts analyze disability discrimination claims consistent with

the Americans with Disabilities Act (ADA ). See Tourville v.

Securex, Inc. , 769 So. 2d 491, 492 n.1 (Fla. 4th DCA 2000).

In order to be entitled to protections, a complainant must be a

qualified individual with a disability. In assessing the

existence of a disability, the United States Supre me Court has

held that

Merely having an impairment does not make

one disabled for purposes of the ADA,

Claimants also need to demonstrate that the

impairment limits a major life activity.

See Toyota Motor Mfg., Ky., Inc. v. Williams 534 U.S. 184, 195

( 2002).

67. Major life activities are those "functions such as

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

hearing, speaking, breathing, learning, and working." See 29

C.F.R. Section 1630.2(i). The limitation to one of these

activities must be substantial and the person must be either

[c]ompletely unable to perform the activity,

or significantly restricted in performing

the activity as compared to an average

person.

See Wimberly v. Securities Technology Group, Inc. , 866 So. 2d

146 (Fla . 4th DCA 2004). See also 45 C.F.R. § 1630.2(j)(2).

68. Although she had some percentage of permanent

impairment after reaching MMI, there is no competent evidence

that the impairment prevented her from performing any of the

activities of daily living. She did not show that she met the

definition of “disabled” under the ADA. Therefore, she does not

qualify for coverage under its terms. See Carruthers v. BSA

Advertising, Inc. , 357 F.3d 1213 (11th Cir. 2004).

69. An adverse employment action ta ken because a person

files a workers’ compensation claim has been determined not to

be within the statutory rights protected by Chapter 760, Florida

Statutes. A violation of these rights are addressed under the

workers' compensation law. The Division of Administrative

Hearings has no jurisdiction over such claims.

70. Petitioner asserted that Respondent deliberately kept

her from returning to work in retaliation for her having filled

the sexual harassment charge. Respondent responded

appropriatel y to that charge, showing that the persons

responsible for insisting on clarification of Petitioner's

medical restrictions were not the same individuals who were

reprimanded based on Petitioner's sexual harassment complaint.

Retaliation was not the motiva tion for any of Respondent's

employment decisions in this case. There is no persuasive

evidence that Respondent acted out of any animus prohibited by

Chapter 760, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing Petitioner's

Petition for Relief.

DONE AND ENTERED this 2 4 t h day of August, 2006, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administ rative 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 Admini strative Hearings

this 2 4 t h day of August, 2006.

COPIES FURNISHED :

Sharon L. Harris

3606 Fort Peyton Circle

St. Augustine, Florida 32086

Alexandra K. Hedrick, Esquire

Alexandra Hedrick, P.L.

4445 Hendricks Avenue, Suite 398

Jacksonville, Florida 3220 7

Suzzanne W. Decker, Esquire

10 light street

Baltimore, Maryland 21202

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission o n 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 cas e .