03-004672 Yvonne C. Cox vs. University Of Florida Status: Closed Recommended Order on Tuesday, June 15, 2004.

Summary: The charge and Petition were time-barred. Petitioner did not prove a prima facie case or perception of handicap. The discussion of the evidence is extensive as to the pattern of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVONNE C. COX, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4672

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a dispute d - fact hearing was held in this

case on March 11, 2004, in Gainesville, Florida, before the

Division of Administrative Hearings, by its duly - assigned

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Yvonne C. Cox, pro se

Po st Office Box 772

Williston, Florida 32696

For Respondent: Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611 - 2703

STATEMENT OF THE ISSUE

Whether the Respondent is guilty of an unlawful e mployment

practice against Petitioner on the basis of handicap.

PRELIMINARY STATEMENT

This cause was referred by the Florida Commission on Human

Relations (Commission) to the Division of Administrative

Hearings (Division) on or about December 11, 2003. The record

adequately reflects all pre - trial motions and orders.

At the disputed - fact hearing on March 11, 2004, Exhibit

ALJ - A, comprising the entire package referred to the Division by

the Commission, was stipulated into evidence by the parties.

Pet itioner testified on her own behalf and presented the

oral testimony of Jackie Rollins, April Sontag, and

Huston Seals. Petitioner would have called other witnesses but

could not produce valid returns of service for their subpoenas.

Therefore, the hearin g was not continued or extended to permit

her potential witnesses to be compelled to testify. After

Petitioner was given the opportunity for an oral response, the

undersigned orally granted a written Motion to Quash filed the

previous day by one of Petit ioner's potential witnesses who had

been served less than 48 hours before the hearing. Exhibits

P - 2, P - 3, P - 6, P - 7, P - 8, P - 9, P - 10, P - 11, P - 12, P - 13, P - 14,

P - 15, P - 16, P - 17, P - 18, P - 19, and P - 20, were admitted in

evidence. Exhibits P - 1, P - 4, and P - 5 were not admitted. After

the record had closed, Petitioner orally moved to admit another

exhibit. The motion was orally denied.

Respondent presented Petitioner's oral testimony and had

Exhibits R - 1, R - 2, and R - 3 admitted in evidence.

A Transcript was filed on March 26, 2004. Only Respondent

filed a Proposed Recommended Order. It has been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. On July 17, 2003, Petitioner filed with the Commission

a Charge of Discrimination, in whic h she complained only that

Respondent University of Florida (Respondent or UF)

discriminated multiple times by not hiring her on the basis of

handicap (dyslexia). The last date of this alleged failure to

hire was stated in the Charge as June 8, 2003. The Charge had

been typed and signed on July 17, 2003. The Charge contained no

allegation that Respondent had terminated Petitioner due to

discrimination.

2. On October 27, 2003, the Commission entered its

"Determination: No Cause." By its "Notice of Dete rmination: No

Cause" of the same date, the Commission notified Petitioner that

she had 35 days in which to file her Petition for Relief.

3. The thirty - fifth day after the Determination: No Cause

fell on Monday, December 1, 2003.

4. According to the Co mmission's date stamp, Petitioner

filed her Petition with the Commission on December 3, 2003.

5. Petitioner became employed by CCR - Head Start in

September 2003. On her job application to CCR - Head Start, she

did not list Respondent as a prior employer.

6 . The late Petition for Relief alleged, for the first

time, that UF had jeopardized Petitioner's education and career

opportunities in her job with CCR - Head Start, by character

defamation against her and/or due to information that UF had not

disclosed. P etitioner explained at hearing that this new

allegation was intended to allege that UF had not provided

course grades, CLAST results, and other general testing scores,

and that UF had not provided a grade point average to Petitioner

upon her request. ( See Findings of Fact 21, and 23 - 25.) Again,

the Petition contained no allegation that Respondent had

terminated Petitioner due to handicap or for any other

discriminatory reason. 1/

7. The late Petition for Relief further newly alleged that

Petitioner's cu rrent employer, CCR - Head Start, had denied her a

high - back chair, computer, desk, and business cards and was

seeking ways to terminate her. This allegation against her

current employer is totally extra - jurisdictional to these

proceedings against Responden t UF.

8. At hearing, Petitioner extended her allegations to

include that UF has prevented her being hired for numerous

advertised positions inside and outside UF, spread over three

counties from 1999 to the date of hearing. At hearing,

Petitioner also presented her view that in 1998 - 1999, while she

was employed in UF's Horticultural Services Department, she was

"persecuted" or "harassed" by her supervisor, Carolyn Reynolds,

and other UF employees, due to cognitive comprehension problems,

which she has self - diagnosed by unilateral computer research as

"dyslexia." However, in addition to never having told anyone at

UF that she is dyslexic, Petitioner testified that she also has

never been professionally diagnosed as dyslexic. 2/

9. Petitioner graduated from high school prior to her

employment with Respondent and began taking some college courses

at Santa Fe Community College.

10. When Petitioner was first hired by Respondent in 1996,

she scored 57 on a typing test, well above the passing score of

35 .

11. On May 2, 2003, Petitioner achieved an AA degree from

Central Florida Community College. Petitioner achieved this

degree after she ceased to be employed by Respondent in 1999.

12. Petitioner was first employed with Respondent UF from

1997 to 199 8 as a clerk in a medical area. In July 1997, she

received a raise in salary. The single performance evaluation

in evidence, which occurred during this period of time, shows

improvement and rated her as satisfactory.

13. In 1998 - 1999, Petitioner was em ployed by Respondent UF

in the Horticultural Sciences Department. She held a

secretarial position involving preparing, typing, and processing

travel request and reimbursement forms, handling room and

vehicle reservations, and typing correspondence for sev eral

professors. Ms. Reynolds was Petitioner's immediate supervisor.

14. Despite graduating from high school and eventually

junior college, Petitioner claims to have had "cognitive

comprehension problems," especially with sequencing tasks and

with mathe matics, throughout her whole life. Petitioner also

claims that while employed in UF’s Horticultural Services

Department, these problems required her to repeatedly ask her

supervisor to repeat all instructions and to write out some

instructions so that she could refer to them. She also claims

she had to ask co - employees to interpret or rewrite her

supervisor's instructions and to interpret and/or rewrite the

written material her professors gave her to type. ( See also

Finding of Fact 18.) Petitioner never told anyone associated

with UF in 1998 - 1999 that she was dyslexic or that she had

"cognitive comprehension problems," and she had no reason to

believe that anyone else told UF personnel that she was

dyslexic. 3/ Petitioner perceived her requests for help in the

Horticultural Services Department as alerting UF personnel to

her "condition." She perceived their compliance with her

requests as persecution and/or harassment. Yet, all the

specific instances Petitioner described were of Ms. Reynolds and

co - work ers complying with her requests to repeat oral and

written instructions. The co - workers who testified described

Petitioner's requests as normal, or at least commonplace,

because they understood that no one learns how to do everything

at once and everyone sometimes needs help. 4/

15. Petitioner demonstrated no disability in general life

activities, such as walking, talking, or seeing. At most, she

testified to having difficulty with mathematics and limited or

categorical employment activities involving sequencing tasks.

16. Petitioner assumed that her professors, supervisor,

and co - workers in the Horticultural Services Department knew

that she was dyslexic because the supervisor and co - workers had

worked with her and accommodated her requests for help; because

the professors let Ms. Reynolds evaluate her; and because of

part of a conversation she overheard. ( See Findings of Fact 14

and 17 - 18).

17. Petitioner came upon Ms. Reynolds and a co - employee,

Tami Spurling, talking. When Petitioner entered th e room,

Ms. Reynolds was saying to Ms. Spurling, "Do I have to write

everything down for you? Are you ADHA too?" Then Ms. Reynolds

and Ms. Spurling stopped talking. Petitioner never confronted

either woman about what Ms. Reynolds had meant. Rather, she

unilaterally inferred that the women stopped talking because

they were talking about her. Petitioner also unilaterally

inferred from Ms. Reynolds' comment about ADHA that both women

knew or perceived Petitioner as dyslexic, or that Petitioner had

some ot her type of learning disability, or that Petitioner had

cognitive comprehension problems, whatever those might be.

Petitioner's interpretation of this conversation is speculative

and not a reasonable interpretation of the event. 5/

18. Petitioner believes that her professors in the

Horticultural Services Department in 1998 - 1999 discriminated

against her on the basis of handicap because they did not give

her typing assignments as they did other secretaries and because

they allowed Ms. Reynolds to evaluate P etitioner’s job

performance instead of evaluating her themselves. At hearing,

Petitioner claimed for the first time that she was retaliated

against because Ms. Reynolds forced her to resign in May 1999,

( see Finding of Fact 19), because of her February 9, 1999, memo

to Ms. Reynolds complaining that the professors were not giving

her major typing assignments. Petitioner’s memo was admitted in

evidence. However, Petitioner presented no evidence that any

other secretary got more or better typing assignments than she

did; that anyone else in her position was evaluated by the

professors instead of by Ms. Reynolds; that the professors ever

knew about her memo to Ms. Reynolds; or that Ms. Reynolds ever

gave Petitioner a bad or unfair evaluation.

19. Petition er testified that sometime in 1999, she became

depressed from a combination of the work place "harassment," as

she perceived it; the loss of her stepfather; and the loss of

her pastor. Apparently, she was absent from work for awhile

after February 1999. She testified that when she returned to

work, she presented Ms. Reynolds with a doctor's excuse for home

rest for two weeks, and Ms. Reynolds then berated her for an

hour and a half and gave her an ultimatum to quit or be fired.

Petitioner stated first th at she resigned because of this

alleged "ultimatum" and then testified that she resigned because

she was depressed and confused from the medicine she was taking.

However, Petitioner's doctor's note was not offered in evidence,

and her self - serving testimo ny was not corroborated.

Petitioner's May 27, 1999, resignation letter to Ms. Reynolds

states that Petitioner's last day would be June 8, 1999, and

gives no reason for quitting. It does not bespeak of coercion.

Petitioner further testified that Ms. Reyn olds prepared a letter

for the UF Personnel Office to get permission to rehire

Petitioner in less than 100 days, contrary to a UF rule.

Petitioner put in evidence a memo from a different supervisor,

Lynn Jernigan, showing that UF employed Petitioner on OP S at

UF's Department of Physical Therapy until August 5, 1999, and at

that time, Petitioner refused Ms. Jernigan’s request to keep

Petitioner’s name in the job hiring pool (P - 13). Petitioner

additionally put in evidence an exhibit that included a letter

b y Petitioner claiming to have been hired for a full - time job in

UF's Physical Therapy Department. 6/ Considering all of the

foregoing, the undersigned is not persuaded that Petitioner was

involuntarily terminated by Ms. Reynolds, effective either

May 27, 1 999, or June 8, 1999. At most, the evidence shows that

after those dates, Petitioner was in an OPS position in a

different department of UF, which position was not funded after

August 5, 1999.

20. Petitioner did not present credible evidence to show

th at Ms. Reynolds or any UF employees "blackballed" her from

being rehired by UF or by any other employer in three Florida

counties between June 8, 1999 (her last day in UF's

Horticultural Services Department), and the date of hearing.

She was also vague ab out what position, if any, with UF she was

turned down for on the only date (June 8, 2003) listed in her

Charge of Discrimination. ( Cf. -- Finding of Fact 21 and its

Endnotes, discussing other dates and allegations.) Petitioner

is credible that she was not hired in numerous positions from

August 1999 (when she left Ms. Jernigan's department) until she

was hired in September 2003, by CCR - Head Start. However, she

did not affirmatively demonstrate that Ms. Reynolds of the UF

Horticulture Services Department h ad hiring authority in any of

the other UF departments Petitioner applied - to during this

period of time. Petitioner conceded that Ms. Reynolds did not

have hiring or firing authority in Ms. Jernigan's department,

where Petitioner worked in August 1999. P etitioner did not know

who made any of the hiring decisions rejecting her after she

left Ms. Jernigan's department in 1999. Petitioner did not know

who applied for any of the job openings within UF or with

outside employers or who made the interview or hi ring decisions

for any of the jobs for which she applied. She did not present

threshold evidence that she was minimally eligible for any of

the jobs for which she applied or any evidence that the persons

hired were less qualified than herself or were equa lly qualified

but without a handicap. The possibility that a genuinely

handicapped person was hired for each of these positions was not

eliminated. The possibility that the jobs she applied for were

not awarded to more qualified applicants was not elimin ated.

Finally, Petitioner did not demonstrate a nexus between any

hiring decision of UF or any hiring decision of any other

employer in the three - county area and her alleged handicap, and

she showed no nexus between other potential UF supervisors or

outsi de employers and her prior relationship with UF or

Ms. Reynolds. Petitioner's mere speculations are not probative

of discrimination.

21. For purposes of the present case, Petitioner filed a

Charge of Discrimination with the Commission on July 17, 2003,

alleging that she was last not hired for a job on June 8, 2003.

( See Findings of Facts 1 - 4 and 6, and n. 1.) However, about

June 24 - 25, 2003, Petitioner also signed a "Workforce Innovation

Complaint" form of the Commission, alleging against UF "constant

surveillance"; on - the - job harassment; not being hired; and

sabotage of her home computer line. This form represented that

UF's discrimination against her was "June 1999" and the latest

discrimination was "estimated at June 24, 2003." When or if her

lawy ers on that case ever actually filed the Workforce

Innovation Complaint with the Commission is not clear. 7/

However, the same lawyers seem to have helped Petitioner get her

UF employment records. ( See Finding of Fact 25.) From the

chronology, it is clea r that neither Petitioner's separation

from UF in 1999 nor any failure to hire her on June 8, 2003,

could possibly have been the result of retaliation for her

filing either the June 24, 2003, Workforce Innovation Complaint

or the July 17, 2003, Charge of D iscrimination. 8/ Neither is

there any credible evidence that Petitioner was not hired at any

time thereafter as a result of filing either the Complaint or

the Charge.

22. Petitioner testified, again without corroboration,

that she had discussed her prob lems concerning Ms. Reynolds with

someone in the UF Personnel Office in 1999, had been persuaded

that further action was not necessary, and had elected not to

pursue her allegations of discrimination at that time. Given

all the evidence, this statement is less than credible, but

assuming, arguendo , that the conversation occurred, it would be

unreasonable and illogical to suppose UF would interfere with

Petitioner’s subsequent attempts at employment for four years in

retaliation for her not filing a charge of discrimination in

1999.

23. With regard to Petitioner's late claim that UF

withheld papers from her, there is no evidence in this record

that Respondent withheld any employment records that impeded

Petitioner being hired by anyone, including but not l imited to

CCR - Head Start. UF employees would have to have been

clairvoyant to even guess that Petitioner was applying to CCR -

Head Start. ( See Finding of Fact 5.)

24. Apparently, in 2002, Petitioner wanted some results of

a CLAST test taken at her comm unity college, but graded by UF.

Exhibits in evidence show that UF permitted her to challenge

these scores in April and August 2002, but the score was not

changed. However, Petitioner put on no evidence that any

portions of these standardized tests may legally be released to

any test - taker. She did not demonstrate any reason that UF

would have her college grades, test scores, or grade point

average from other institutions.

25. Petitioner testified that sometime in 2002, at the

request of her lawyers for the Workforce Innovation Complaint,

( see Finding of Fact 21), UF provided her with papers that

purported to be her UF employment records but an UF employee

removed some papers from the pile before handing the rest to

her. Petitioner admitted that she did not know the UF employee

and did not know what was in the pile of papers removed. Her

only reason for believing UF misused her at that time was her

unilateral belief that someone would not remove papers from a

pile assembled for her lawyers unless the y were hiding something

from her. This is not a reasonable interpretation of the event

described.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

only as discussed below, pursuant to Chapter 760, and Section

120.57(1), Florida Statutes.

27. The October 27, 2003, "Notice of Determination: No

Cause" meant that Petitioner had 35 days, or until December 1,

2003 to timely file her Petition for Relief. She did not timely

file her Petition for Relief on December 1, 2003. Because her

Petition for Relief was not filed until December 3, 2003, her

entire case is time - barred and the Division is without

jurisdiction of the entire case. See § 760.11(7), Fla. Stat;

Garland v. Dept. of State , DOAH Case No. 00 - 1797 (RO: July 24,

2000; FO: February 8, 2001); McGill v. U.S. Marine/Bayliner

Marine Corp. , DOAH Case No. 95 - 6018 (RO: March 18, 1996; FO

approved); Hall v. Boeing Aerospace Operation , DOAH Case No. 94 -

6976 (RO: March 29, 1995; FO approved); Wright v. HCA Central

Florida Regional Hospital, Inc. , DOAH Case No. 94 - 0070 (RO: July

27, 1995; FO: January 26, 1995); Pusey v. Knapp , DOAH Case No.

96 - 3321 (RO: November 25, 1996; FO: October 16, 1997).

28. Assuming, arguendo , but not ruling , that the Petition

had been filed on time, this Recommended Order still could not

address any events that occurred before July 18, 2002. Because

Petitioner filed her Charge of Discrimination on July 17, 2003,

any events more than 365 days prior to the da te her charge was

filed could not be considered either by the Commission or the

Division. This is a statute of limitations. See § 760.11(1),

Fla. Stat; Burt v. City of Tallahassee , DOAH Case No. 03 - 2456

(RO of Dismissal: September 23, 2003; FO: April 15, 2004);

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

(Fla. 5th DCA 1997); Florida State University v. Sondel , 685 So.

2d 923 (Fla. 1st DCA 1996); Florida Dept of Community Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); and St. Pe tersburg

Motor Club v. Cook , 567 So. 2d 488 (Fla. 2d DCA 1990).

Accordingly, Petitioner’s separation from her employment with

Respondent in August 1999 or on June 8, 1999, her allegedly

forced or duped resignation letter of May 27, 1999, and her

treatment during her 1997 - 1999 employment with Respondent may

not be considered in this case. 9/ Regardless, Petitioner has

failed, on the merits, to establish any discrimination related

to these time - barred events.

29. Assuming, arguendo , but not ruling, that th e Petition

had been filed on time and that this case could be decided on

the remaining issues, the Division does not have jurisdiction of

any new charges added into the Petition for Relief or that were

presented for the first time at hearing if they could have been

raised in the Charge of Discrimination. New or different types

of discrimination cannot be alleged in the Petition for Relief

or at the disputed - fact hearing under Section 120.57(1), Florida

Statutes, unless they have been alleged in the Charge of

Discrimination. The Commission must first investigate the

allegations of the Charge, and only when the Commission has

entered its "proposed final agency action," by way of a

"determination" of cause or no cause on the contents of the

Charge, may a Peti tion for Relief attacking that proposed final

agency action be filed. Young v. Dept. of Business and

Professional Regulation , DOAH Case No. 03 - 1140 (RO: July 1,

2003; FO: February 26, 2004 ); Ward v. Florida Dept. of Juvenile

Justice , 212 F. Supp 2d 1349 ( N. D. Fla. 2002); Luke v. Pic 'N'

Save Drug Co., Inc. , DOAH Case No. 94 - 0294 (RO: August 25, 1994;

FO: December 8, 1995); Austin v. Florida Power Corp. , DOAH Case

No. 90 - 5137 (RO: June 20, 1991; FO: October 24, 1991, filed

October 30, 1991).

30. The only possible exceptions to the foregoing ruling is

where the type of discrimination alleged in the Charge continued

in an on - going pattern to, and/or beyond the date of the

Petition or where there was a subsequent retaliation by the

employer against the employ ee for pursuing or filing the Charge

itself. However, this is an extremely narrow exception, and the

vagueness and ever - changing nature of Petitioner’s theories

should not be rewarded. Lieberman v. Miami - Dade County , 2000 WL

1717649. Regardless, neither of these theories of the case has

been established by any standard of proof. No retaliation was

proven. No pattern of "blackballing" was proven. Most

important of all, no "handicap" or discrimination on the basis

of handicap was proven.

31. Pursuant t o Brand v. Florida Power Corp. , 633 So. 2d

504 (Fla. 1st DCA 1994), Petitioner must prove the following in

order to establish a prima facie case of handicap

discrimination:

A. He is handicapped within the meaning of

the Florida Civil Rights Act;

B. He was otherwise qualified for his job;

and

C. He was harassed, terminated, (or, in

this case, not hired) solely by reason of

his handicap.

32. This Petitioner is not statutorily handicapped

(disabled) because her condition, whatever it is, does not

s ubstantially limit her major life activities under the test

employed in Toyota Motor Mfg., Kentucky, Inc. v. Williams , 112

S. Ct. 681 (2002). "Handicap" for our purposes here, as well as

"disability" under the Americans With Disabilities Act, must

extend to life activities, not just limited or categorical

employment activities. See Sutton v. United Air Lines, Inc. , 19

S. Ct. 2139, 527 U.S. 471 (1999). No one with hiring authority

at UF seems to have even perceived Petitioner as handicapped,

but regardless , Petitioner’s sequencing and memory problems seem

to have been accommodated each time she requested help. See

Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla. 1st DCA

1994); Cabany v. Hollywood Memorial Hospital , 12 FALR 2020 (FCHR

1990) Kelly v. Becht el Power Corp. , 633 F. Supp 927 (S.D. Fla.

1986). They clearly do not appear to be adverse employment

actions. See Mattern v. Eastman Kodak Company , 104 F.3d 702

(5th Cir. 1997); Landgraf v. USF Film Products , 968 F.2d 427

(5th Cir. 1992).

33. No prima facie case of discrimination on the basis of

handicap was established with regard to June 8, 2003, the only

date alleged in the Charge of Discrimination, or any other

dates. Petitioner has been unsuccessful in getting hired for

positions at UF and with a variety of employers, in three

counties but her lack of success is not necessarily linked to

any lack of ability on Petitioner’s part or to any condition

that impairs her every day living. It also has not been linked

to any discriminatory efforts of Respo ndent UF. Sometimes,

getting a job is just the luck of the draw. Where the evidence

establishes neither a handicap nor that a similarly situated,

equally qualified, non - handicapped person was hired, the case

must fail on the merits.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED: that the Florida Commission on Human Relations

enter a final order dismissing the Charge of Discrimination and

Petition for Relief.

DONE AND ENTERED this 15th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of June, 2004.

ENDNOTES

1/ Exhibit ALJ - A, comprising the entire package referred to the

Division by the Commissio n, was stipulated into evidence by the

parties. It is deemed to be the most accurate evidence.

Findings of Fact 1 - 4 and 6 are based thereon. However, it is

noted that Exhibit P - 12, also in evidence, constitutes a

handwritten Charge of Discrimination whic h Petitioner

purportedly signed on July 1, 2003, stating that the last date

of discrimination was "estimated" to be August 27, 2002.

Exhibit P - 12 was date stamped - in by the Commission on July 9,

2003, not July 17, 2003.

2/ Petitioner's Exhibits P - 1, P - 4, and P - 5 are unreliable

hearsay documents and were not admitted in evidence because no

medical, psychological, or vocational expert with first - hand

knowledge of their contents or with the ability to interpret

their contents appeared for confrontation/ex amination by

Respondent. However, in an abundance of caution, they have been

treated as proffers. Even as proffers, these exhibits do not

support Petitioner's contention in her pleadings that she has

been professionally diagnosed with dyslexia or her position at

hearing that she suffers from another cognitive comprehension

condition that qualifies as a "handicap." ( See Conclusions of

Law.)

P - 4 is a May 17, 1993 UF Health Sciences Center, Department of

Psychiatry report rendered to Petitioner’s supe rvisor at Santa

Fe Community College where Petitioner was then working. There

is no reason to suppose that any of Petitioner’s professors,

supervisors, or co - workers at UF in 1996 - 1999 saw or knew of

this report. One of the testers noted that Petitioner was

mildly "dyspraxic" ("having difficulty recalling program for use

of utensil into learned act sequence"), not "dyslexic." She

tested in the low range of intellectual functioning.

P - 5 is a March 5, 2002 Good Will report for a Vocational

Rehabilitation o ffice, which UF could not have had in 1996 - 1999.

It relates that Petitioner claimed to have dyslexia and referred

her for further testing to determine if she has a learning

disability in mathematics.

P - 1 is a May 12, 2002 report by Clinical Psychology As sociates,

which UF also could not have had in 1996 - 1999. It relates that

Petitioner provided a "family history" of ADHA (attention

deficit hyperactivity disorder); this would not constitute

Petitioner's own personal medical history. Its tester diagnosed

that Petitioner had an undefined "cognitive problem"; that her

math and spelling problems arose while she was at Santa Fe

Community College; that she did not meet the legal scale for a

learning disability; and that she had a low average IQ.

One or more of these exhibits refer to Petitioner's providing a

personal history of having problems with sequencing, especially

with math, for most of her life but being able to deal with the

problem until she was forced to take college level math courses.

One or mor e of these exhibits use terms such as "cognitive

problem" "comprehension problem," or "cognitive comprehension

problem." None of these terms was demonstrated to be a

standard, recognized diagnosis. No diagnosis of dyslexia or any

other learning disabilit y was assigned through any of these

tests, although subsequent tests were recommended.

3/ See n. 2, above, concerning unadmitted P - 4, a 1993

psychiatric report. There is no reason to suppose that any of

Petitioner’s professors, supervisors, or co - worker s at UF in

1996 - 1999 saw or knew of this report.

4/ Had there been any clear proof that Respondent knew or even

falsely perceived that Petitioner was afflicted with dyslexia or

even perceived her to have a handicap, which there was not,

these acts of a ssistance would amount to "reasonable

accommodations." ( See Conclusions of Law).

5/ "ADHA" stands for "attention deficit hyper - activity

disorder." Petitioner has never alleged that she has ADHA. She

has not been diagnosed with ADHA. ( See also, n. 2, a bove.

6/ In connection with her Workforce Innovation Complaint,

discussed in Finding of Fact 21, infra , Petitioner wrote a

letter stating that after being fired, she was "hired on a full

time job in the Physical Therapy Department but due to hierarchy

influences I was tricked into signing an OPS form for a senior

clerk/part - time job while being trained and focusing my

attention on my trainer or make me loose [sic] sight of what I

was actually signing. All this happened after I was hired as a

full - time secretary." (P - 11)

7/ The Workforce Innovation Complaint, which claimed

discrimination occurred last on June 24, 2003, bears a date

stamp of June 33 [sic.], 2003, for the "Agency for Workforce

Innovation, Office for Civil Rights," at the same address a s the

Commission.

Interestingly enough, Petitioner’s lawyers believed, contrary to

the evidence in this case, that Petitioner was employed by UF in

the Horticulture Sciences Department from 1996 - 1997 and at the

UF Mercy Area Housing Department from 1997 - 1999. ( See Findings

of Fact 10 - 13.)

8/ See nn. 2 and 7, above.

Even if one chooses the dates in P - 12 or in the Workforce

Innovation Complaint, the chronology does not establish

retaliation.

Also, an abundance of caution, unadmitted Exhibit P - 5 ha s

been treated as a proffer in the context of Petitioner’s

testimony that UF knew after March 5, 2002 that she was dyslexic

from her request that UF pay for the vocational retraining

recommended in that document and retaliated by "blackballing"

her. Exhi bit P - 5 is a March 2002 Good Will evaluation of

Petitioner's capabilities, which recommended that she retrain

for a career other than as a secretary. First, the exhibit does

not reflect that it ever went to UF. Even if it could be

inferred therefrom that someone, somewhere within UF, knew, as

of March 5, 2002, that Petitioner had some kind of problem, the

document does not define "cognitive comprehension problem" and

does not diagnose dyslexia. In the absence of something more,

neither the March 5, 2002, report nor a request for vocational

retraining by a non - employee at that point in time is sufficient

to establish a nexus for handicap discrimination in the

Horticultural Sciences Department in 1998 - 1999, for a failure to

hire before its date, for alleged "blackballing" before its

date, or to prove - up any retaliation discrimination in hiring

practices after its date. ( See Findings of Fact 19 - 20.) A G ood

W ill evaluation or a request for training, by a non - employee, if

such request was ever made, is not a protected employee action

for which any type of retaliation discrimination claim after its

date may lie.

9/ The different dates from P - 12 recited in n. 1 would not alter

this ruling.

COPIES FURNISHED:

Yvonne C. Cox

Post Office Box 772

Williston, Flor ida 32696

Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611 - 2703

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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 Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.