03-002736 Teresa Cavanaugh vs. Sprint-Florida, Inc. Status: Closed Recommended Order on Monday, February 9, 2004.

Summary: Petitioner failed to establish a prima facie case of disability discrimination and failed to show a legally-defined disability. Respondent showed a legitimate, non-discriminatory reason for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA CAVANAUGH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2736

)

SPRINT - FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Ocala, Florida, on November 14, 2003. The appearances were

as follows:

APPEARANCES

For Petitioner: Teresa Cavanaugh, pro se

3010 Northeast Seventh Lane

Ocala, Florida 34470

For Respondent: Patrick M. Muldowney, Esquire

Akerman Senterfitt

Post Office Box 231

Orlando, Florida 32802 - 0231

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Respondent has been discriminated against on account of her

handicap or disability in connection with her termi nation of

employment, in alleged violation of Section 760.10, Florida

Statutes.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Teresa Cavanaugh,

filed a charge of discrimination with the Florida Commission on

Human Relations (FCHR) on Oc tober 16, 2001. Ms. Cavanaugh filed

an amended charge with FCHR on November 16, 2001, and in the

amended charge alleged that the Respondent, Sprint Florida, Inc.

(Sprint) wrongfully terminated her employment because of her

purported mental disability, whi ch she identified at hearing as

“depression, anxiety, bipolar, manic depressive . . . and

borderline personality disorder.”

On June 18, 2003, the Commission informed Ms. Cavanaugh

that it had determined that there was no reasonable cause to

believe an unlawful employment practice had occurred. In

response to that determination Ms. Cavanaugh filed a Petition

for Relief on July 23, 2003. The Petition contains allegations

that Sprint terminated Ms. Cavanaugh because of her disability

and made three unla wful inquiries into her disability status.

The matter was transferred to the Division of Administrative

Hearings and ultimately to the undersigned Administrative Law

Judge.

The cause came on for hearing, as noticed, on November 14,

2003, in Ocala, Florida. Ms. Cavanaugh testified on her own

behalf, and had 44 exhibits admitted into evidence. Sprint

called five witnesses and had ten exhibits admitted into

evidence, as well as a transcript of Ms. Cavanaugh’s deposition,

taken on September 18, 2003, with disposition exhibits attached

thereto. Upon conclusion of the proceedings, the parties were

given an opportunity to file proposed recommended orders after a

transcript was obtained. The Proposed Recommended Orders were

filed and have been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Teresa Cavanaugh, was employed by

Sprint from 1985 through 2000. During 1999 and 2000,

Ms. Cavanaugh held the position of Technical Analyst I, assigned

to the Carrie r Market’s department at Sprint’s National Access

Service Center in Leesburg, Florida. In this position,

Ms. Cavanaugh was responsible for assuring that orders for the

use of Sprint’s local telephone lines by long distance carriers

such at AT&T were proce ssed correctly.

2. Ms. Cavanaugh’s immediate supervisor in this position

was Robert Whittaker, the Customer Access Manager.

Mr. Whitaker’s immediate supervisor was Jackie Picard, the

National Customer Service Manager.

3. On August 26, 1999, the Petitioner was arrested in

Marion County, Florida and charged with two third - degree

felonies involving obtaining a controlled substance by fraud and

possession of a controlled substance.

4. The Petitioner informed Sprint’s house counsel, Susan

St ucker, of her arrest on August 31, 1999. Ms. Cavanaugh

explained the arrest to Ms. Stucker and Ms. Stucker informed

Ms. Cavanaugh that she needed to report the arrest to her

supervisor. Ms. Stucker also told the Petitioner that as long

as the arrest was not related to work, she would be permitted to

continue working for Sprint until such time as there was a

disposition of the charges. After speaking with Ms. Stucker,

the Petitioner informed Mr. Whitaker of her arrest.

5. The Petitioner testified that Ms. Stucker informed her,

in the above - described conversation, that her job would not be

affected as long as adjudication was withheld with respect to

the criminal charges. Ms. Stucker, however, denied telling that

to Ms. Cavanaugh and instead testif ied that she would never have

made such a statement because, pursuant to Sprint’s unwritten

policy, convictions for or pleas to felony charges are

terminable offenses, regardless of whether adjudication is

withheld. Ms. Stucker also told the Petitioner th at Sprint’s

policy was to that effect in a subsequent conversation. This

dispute in testimony is resolved in favor of that given by

Ms. Stucker because of the respective demeanor of the witnesses

and Ms. Stucker’s undisputed testimony that on at least two

other occasions she approved terminations of persons who pled

nolo contendere to felony charges. Her testimony was

corroborated by documentation regarding the nolo contendere plea

of one of the persons whose employment was terminated, Wilson

Hinson. In fact, as with Ms. Cavanaugh, Mr. Hinson’s records

demonstrate that the court withheld adjudication of guilt

regarding the charges against him.

6. Several weeks later, on Friday, September 17, 1999, the

Petitioner sent an e - mail to Mr. Whitaker expres sing that she

was "losing control of her mind," was "spinning out of control,"

felt "helpless and desperate," was "going over the edge," and

needed "some serious help." The Petitioner indicated also that

she had an "overwhelming sense of helplessness and

hopelessness." Ms. Cavanaugh stated in her e - mail, and in

testimony at the hearing, that prior to this incident, she never

had felt this way. She further testified that she had no prior

history of mental illness.

7. After reading the Petitioner's e - mail, Mr. Whittaker

became concerned that Ms. Cavanaugh could be a threat to herself

or to co - workers. Based upon this concern, he shared the e - mail

with Ms. Picard, and both Mr. Whittaker and Ms. Picard informed

the Human Resources Department of Sprin t of its contents.

Mr. Whitaker, Ms. Picard and Colby Gilson, the Manager of

Employee Relations, developed a plan whereby the Petitioner

would be placed on paid "crisis leave" and referred to Sprint's

Employee Assistance Program (EAP) for evaluation as to her

ability to safely perform her job.

8. Mr. Whittaker informed the Petitioner that she was

being placed on leave and referred to EAP on the morning of her

next scheduled work day, Monday, September 20, 1999. After

meeting with Mr. Whittaker, th e Petitioner was placed on leave

and evaluated by the EAP. The Petitioner informed the

psychiatrist who was evaluating her as part of the EAP process

that her mood had improved after being placed on leave. The

Petitioner was cleared to return to work on a part - time basis in

late December 1999 or early January 2000. She was allowed to

return to a full - time schedule in late January 2000.

9. On or about June 27, 2000, the Petitioner, on her own

initiative, commenced a short - term disability leave. Because

the leave was for an alleged mental condition, the Petitioner

was asked to undergo an independent medical examination (IME)

pursuant to Sprint's standard policy of verifying leaves for

conditions that are difficult to review through objective

medic al evidence (e.g., mental conditions and soft tissue

injuries). The Petitioner underwent the IME, which confirmed

her need for leave. The Petitioner then remained on leave until

October 17, 2000, at which time she returned to work on a part -

time basis. She resumed a full - time schedule approximately one

week later, on October 23, 2000, with no restrictions on her

ability to work.

10. Due to the amount of leave the Petitioner had taken to

date, during September and October 2000, Sprint's Benefits

D epartment in Kansas City sent the Petitioner two letters

informing her regarding the availability of long - term disability

benefits and disability retirement benefits, respectively,

should she wish to apply for them. These letters were sent out

pursuant to the Benefits department's standard practice of

notifying employees who have been out comparable periods of time

of the availability of such benefits so as to minimize the

potential lapse in benefits should an employee exhaust all of

his or her short - term disability leave.

11. After her return from leave, on or about October 31,

2000, the Petitioner told Mr. Whittaker that she was taking what

she believed to be a very strong prescription that had been

given to her by her doctor. Mr. Whittaker consu lted with

Mr. Gilson as to whether he needed to take any action in

response to this information. Mr. Gilson informed Mr. Whittaker

that he should require the Petitioner to provide a note from her

doctor indicating whether or not she could continue at work

while taking the medication. Mr. Whittaker followed

Mr. Gilson's directions and requested that the Petitioner

provide a note from her doctor. She submitted such a note to

Mr. Whittaker on November 2, 2000. According to that note, the

Petitioner was cle ared to work with no limitations or

restrictions, "as long as she participates in treatment and

maintains compliance with medications and scheduled

appointments." The Petitioner has not established how any major

life activities have been substantially lim ited by any alleged

mental condition.

12. On or about November 29, 2000, the Petitioner informed

Mr. Whittaker that her probation officer would be calling him to

verify that she worked at Sprint and was coming to work on a

regular basis. According t o Whittaker, at no time prior to that

conversation had the Petitioner informed him of any final

disposition of the felony charges filed against her.

Mr. Whittaker informed Mr. Gilson of this conversation, and

Gilson then asked Stacy Smith, a security inve stigator, to

contact the court in Marion County to determine whether there

had been any final disposition of the charges lodged against the

Petitioner in August 1999.

13. Mr. Smith, who as part of his regular job duties had

been tracking the procee dings against the Petitioner and other

Sprint employees subject to criminal charges, contacted the

Marion County Clerk's office which provided documents showing

that, in October 2000, the Petitioner pled nolo contendere to

the two felony charges. The docu ments Mr. Smith received also

showed that the court had withheld adjudication on the basis of

that plea. The information Mr. Smith received from the court

ultimately was provided to Mr. Gilson, Ms. Stucker,

Mr. Whittaker and Ms. Picard.

14. Based upon Sprint's unwritten policy regarding

terminations for felony convictions or pleas, Mr. Whittaker

recommended the termination of the Petitioner's employment.

Ms. Picard concurred with Mr. Whittaker's recommendation, as did

Picard's immediate supervisor , Krystal Barr.

15. Mr. Whittaker's recommendation was reviewed by

Ms. Stucker, Mr. Gilson, and David Sapenoff, Mr. Gilson's

immediate superior. Each of these individuals concurred in the

decision to terminate the Petitioner’s employment.

1 6. On the basis of Mr. Whittaker's recommendation, and

the above - mentioned concurrences, the Petitioner's employment

was terminated on December 14, 2000. Although the Petitioner

claims that she was never told the basis for her termination,

both Mr. Whita ker and Ms. Picard testified that the Petitioner

was told that she was terminated because of her felony plea.

This dispute in testimony is resolved in favor of that of

Mr. Whittaker and Ms. Picard, given both the respective demeanor

of the witnesses and t he fact that the records of the Florida

Department of Labor and Employment Security indicate that the

Petitioner stated in an interview, regarding her entitlement to

unemployment compensation benefits, that she was terminated

because of her felony convicti on.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2003).

18. The burden of proof in this proceeding is on the

Petitioner , who must establish by a preponderance of evidence

that her termination from employment constituted unlawful

discrimination within the purview of Chapter 760, Florida

Statutes. See Florida Department of Transportation v. J.W.C.

Company , 396 So. 2d 778, 7 88 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d

349, 350 (Fla. 1st DCA 1977). In a proceeding wherein a

Petitioner asserts an unlawful employment practice, although the

burden of going forward with the eviden ce may shift, the

ultimate burden of persuasion to establish proof of an unlawful

employment practice remains on the Petitioner. St. Mary’s Honor

Center v. Hicks , 509 U.S. 502 (1993).

19. Because the Florida Civil Rights Act (FCRA) is

patterned afte r federal civil rights law, federal case law

interpreting the federal civil rights statutes applies to

interpreting the provisions of Chapter 760, Florida Statutes,

the FCRA. See Green v. Burger King Corporation , 728 So. 2d 369,

370 - 71 (Fla. 3rd DCA 1999 ); School Board of Leon County v.

Hargis , 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981); see also

Greene v. Seminole Electric Cooperative, Inc. , 701 So. 2d 646,

647 (Fla. 5th DCA 1997) (FCRA “should be construed in conformity

with" the federal Americans wi th Disabilities Act of 1990 [the

"ADA"], 42 U.S.C. § 12101 et seq ., and related regulations).

20. Intentional discrimination can be proven by two means,

either by direct evidence of discriminatory intent or through

circumstantial evidence. See McDo nnell - Douglas Corporation v.

Green, 411 U.S. 792, 804 (1973). In the instant case, the

Petitioner has failed to produce direct evidence of bias. See

Jones v. Bessemer Carraway Medical Center , 151 F.3d 1321, 1323

(11th Cir. 1998) ("This court has marked s evere limits for the

kind of language to be treated as direct evidence of

discrimination"); Burrell v. Board of Trustees of Georgia

Military College , 125 F.3d 1390, 1393 - 94 (11th Cir. 1997)

("[d]irect evidence is ‘evidence, which, if believed, proves

exist ence of fact in issue without inference or presumption’")

(citation omitted by the court).

21. In the absence of direct evidence, the Petitioner must

put forth a prima facie case, which consists of the following:

(a) that she is handicapped; (b) th at she performed or is able

to perform her assigned duty satisfactorily; and (c) that

despite her satisfactory performance, she was terminated from

employment. Clark v. Jackson County Hospital , 20 F.A.L.R. 1182,

1184 (FCHR 1997).

22. If the Petition er is able to establish a prima facie

case, the burden of production (although not persuasion) shifts

to the Respondent to show a legitimate, non - discriminatory

reason for the adverse action taken. McDonnell - Douglas

Corporation , supra . Sprint need not pe rsuade the fact finder

that it was actually motivated by the proffered reason, but must

merely set forth, through the introduction of evidence, the

reasons for its actions. Texas Department of Community Affairs

v. Burdine , 450 U.S. 248, 254 - 255 (1981). T hereafter, the

Petitioner retains the burden of persuasion and must prove "by a

preponderance of the evidence that the legitimate reasons

offered by [Sprint] were not its true reasons, but were a

pretext for discrimination." Burdine , 450 U.S. at 253. In

determining pretext, the Petitioner must demonstrate "such

weakness, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its actions that a reasonable finder of fact could find them

unworth y of credence." Wallace v. School Board of Orange

County, Florida , 41 F. Supp. 2d 1321, 1330 (M.D. Fla. 1998).

23. Concerning the question of a prima facie case, the

definition of handicap has been held to be substantially the

same as the definition of disability set forth in the ADA.

Green , 701 So. 2d at 647. The ADA defines disability as: (a) a

physical or mental impairment that substantially limits one or

more major life activities of such individual; (b) a record of

such impairment; or (c) bein g regarded as having such an

impairment. 42 U.S.C. § 12102(2).

24. Examples of major life activities include caring for

one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working. 29 CFR § 1630.2(i).

T he United States Supreme Court has stated that corrective and

mitigating measures for an impairment should be considered in

determining whether a person is substantially limited in his or

her major life activities. See Sutton v. United Airlines, Inc. ,

527 U.S. 471, 482 (1999).

25. The Petitioner has failed to identify how her alleged

mental condition substantially limited any major life activity,

nor has she provided evidence showing how any major life

activity has been so limited. Standard v. A.B .E.L. Services,

Inc. , 161 F.3d 1318, 1327 (11th Cir. 1998) ("[m]erely proving

the existence of [an]. . . impairment, without addressing any

limitation on a major life activity, is not sufficient to prove

disability under the [ADA]"). The Petitioner's own doctor

stated in his November 2, 2000, note to Sprint, that the

Petitioner had no limitation on her ability to work as long as

she participated in treatment and maintained compliance with

medications and scheduled appointments.

26. The Petitioner did not provide any evidence that she

had a record of such an impairment, especially given her

admission that she had no history of mental illness prior to her

e - mail of September 17, 1999, to her supervisor. Hilburn v.

Murata Electronics North America , 181 F.3d 1220, 1229 (11th Cir.

1999) (record - of - impairment standard satisfied only if

petitioner "actually suffered" an impairment that substantially

limited one or more of her major life activities). The fact

that the Petitioner was on two employer – approved medical leaves

during 1999 - 2000 does not create a record of impairment. Id. at

1229.

27. The Petitioner presented no persuasive evidence that

Sprint regarded her as having such an impairment. Sprint's

requests for mental evaluations and placement of Cavanaugh on

leave do not constitute evidence that it regarded her as

suffering from a FCRA - protected handicap, given the grounds upon

which the actions were based. Williams v. Motorola, Inc. ,

303 F.3d 1284, 1290 (11th Cir. 2002) (perception claim bas ed

upon suggested medical examination "fails"); Cody v. Cigna

Healthcare of St Louis, Inc. , 139 F.3d 595, 599 (8th Cir. 1999)

(request for mental evaluation "not equivalent to treatment of

the employee as though she were substantially impaired");

Johnson v . Boardman Petroleum , 923 F. Supp. 1563, 1568 (S.D. Ga.

1996) (offer of leave of absence showed concern for employee's

well - being, not treatment of the employee as disabled). The

inquiries triggered by the e - mail that the Petitioner sent to

Mr. Whittaker and her informing Whittaker of her concerns about

her medication were both lawful because they were based upon

Sprint's concern as to whether Cavanaugh could safely and

effectively do the essential functions of the job in which she

was employed. See Willi ams , 303 F.3d at 1291 (employer may

require employee to undergo mental examinations and provide

information regarding psychiatric health if job - related and

reflect "concern with the safety of . . . employees"); Cody ,

139 F.3d at 599 ("employers need to be able to use reasonable

means to ascertain the cause of troubling behavior without

exposing themselves to ADA claims"). The mental examination

requested while the Petitioner was on her self - initiated leave,

was merely an effort to determine whether in fact the Petitioner

was able to perform the essential functions of her job at the

time, which is another permissible inquiry. 29 C.F.R. §

1630.14(c); see generally , Florida Statutes Section

760.10(8)(b),(nothing in the FCRA shall "preclude such physical

and m edical examinations of applicants and employees as an

employer may require of applicants and employees to determine

fitness for the job or position sought or held").

28. Assuming arguendo that the Petitioner was able to

prove that she suffered fro m a protected handicap and otherwise

established her prima facie case, the Respondent has articulated

a legitimate, non - discriminatory reason for its termination of

her employment – i.e., her nolo contendere plea to felony

charges in October, 2000. The Pe titioner failed to meet her

burden of showing that this reason was a pretext for unlawful

discrimination.

29. The absence of any handicap - related bias is shown by

the fact that other individuals who have pled nolo contendere to

felony charges have been terminated, even when adjudication has

been withheld based upon the plea. The Petitioner failed to

identify any alleged non - disabled person who, upon pleading nolo

contendere to a felony charge, was allowed to remain employed by

Sprint. Nix v. WLCY Radio/Rahall Communications , 738 F.2d 1181,

1185 (11th Cir. 1984) (to show prima facie case of

discrimination, plaintiff must show that person outside

protected class who engaged in "nearly identical" conduct was

treated more favorably).

30. The Pe titioner contends that the termination was

unlawful because her arrest was more than a year prior to her

termination; however, the record is clear that it was her plea

regarding that arrest, which was not discovered until December

2000, upon which Sprint b ased its decision. Moreover, she

alleges that she consistently received good performance reviews,

had just completed 15 years with Sprint, and had been allowed to

pick her vacation time shortly before her termination. None of

these alleged facts support a finding of handicap discrimination

in light of the evidence that Sprint terminated her employment

pursuant to a consistently - applied policy and practice regarding

terminations for felony pleas. Chapman v. AI Transport ,

229 F.3d 1012, 1030 (11th Cir. 200 0) ("Provided that the

proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with

the wisdom of that reason," nor is a fact - finder per mitted to

“second - guess” the business judgment of an employer); see also

Nix , 738 F.2d at 1187 ("an employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or

for no reason at all, as long as its action is not for a

discriminatory reason").

31. Concerning the Petitioner’s claim that Sprint's

notices to her of the availability of long - term disability and

disability retirement benefits demonstrated anti - handicap bias,

Sprint has put forward sufficient, credibl e evidence to

demonstrate that these letters were automatically sent to the

Petitioner merely to inform her of the availability of such

benefits, given the amount of time she had been out on leave.

This evidence demonstrates that Sprint was merely attempt ing to

assist her in assuring that should she need additional benefits,

she would not suffer any lapse in benefits because she had

failed to timely start the application process. Such a

ministerial act does not suggest an anti - handicap motivation.

32. The Petitioner attempted to point to the three medical

inquiries made by Sprint as evidence of anti - handicap bias.

This attempt must fail because Sprint provided sufficient

justification for each inquiry, as discussed above. Concerning

her claims th at the three medical inquiries constitute

independent violations of the FCRA, any claims related to those

inquiries made in September 1999 and August 2000 are not

actionable because they occurred more then 365 days prior to the

Petitioner's filing of her c harge of discrimination with the

FCHR in October 2001. National Railroad Passenger Corporation

v. Morgan , 536 U.S. 101 (2002) (claims regarding discrete acts

occurring outside of period for filing a charge of

discrimination are barred). Moreover, to the extent that the

ADA's prohibition on medical inquiries are applicable to claims

under the FCRA, each inquiry was made for a job - related reason

consistent with business necessity, as described and concluded

above.

RECOMMENDATION

Having considered t he foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED:

That a final order be entered by the Florida Commi ssion on

Human Relations denying the Petition in its entirety.

DONE AND ENTERED this 9th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 9th day of February, 2004.

COPIES FURNISHED :

Teresa Cavanaugh

3010 Northeast Seventh Lane

Ocala, Florida 34470

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Patrick M. Muldowney, Esquire

Akerman Senterfitt

Post Office Box 231

Orlando, Florida 32802 - 0231

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.