04-003236 Karen Howe, Personal Representative Of The Estate Of Stephen Howe vs. Western And Southern Financial Group Status: Closed Recommended Order on Wednesday, April 4, 2007.

Summary: The available remedies in handicap discrimination cases are penal in nature and unavailable when the Petitioner is now deceased.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN HOWE, PERSONAL )

REPRESENTATIVE OF THE ESTATE OF )

STEPHEN HOWE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3236

)

WESTERN AND SOUTHERN FINANCIAL )

GROUP, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Pensacola, Florida, on August 23, 2005. The following

appearances were en tered:

APPEARANCES

For Petitioner: Daniel Stewart, Esquire

4519 Highway 90

Pace, Florida 32571

For Respondent: Linda Bond, Esquire

Allen, Norton and Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Alice Fitzgerald, Esquire

Western and Southern Financial Group

400 Broadway

Cincinnati, Ohio 45202 - 3341

STATEMENT OF THE ISSUE

The issue for determination is whether the Western and

Southern Financial Group (Respondent), violated the Florida Civil

Rights Act of 1992 (FCRA) in terminating employment of Stephen Howe

(Petitioner) without reasonable accommodation. § 760.10, Fla. Stat.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Huma n Relations (FCHR)

on or about May 1, 2003, alleging his termination by Respondent

was the result of discrimination on the basis of disability.

On or about August 11, 2004, the FCHR issued its

determination: No Cause.

During the investigation period, Petitioner died. Petitioner's

widow, Karen Howe, then continued with the claim on decedent

Petitioner's behalf as his personal representative.

On or about September 10, 2004, Petitioner’s widow filed a

Petition for Relief with the FCHR. Initial ly, the undersigned

determined that a jurisdictional basis to hear the matter did

not exist and recommended the dismissal of the case by FCHR on

that basis. FCHR remanded the matter for a full factual hearing

and this proceeding followed. ( See the Conclu sions of Law below

for further discussion of these legal issues.)

During the final hearing, Petitioner’s widow, Karen Howe,

testified. Further, five depositions, with attachments, were

presented by Ms. Howe’s counsel and accepted into evidence with

t he exception of the reserved ruling pertaining to admission of

the deposition of Charles Messik. Upon review of these matters,

that ruling is receded from and the deposition of Charles Messik

is admitted. Additionally, Ms. Howe’s counsel presented four

o ther exhibits, which were admitted into evidence.

Respondent presented testimony of four witnesses and eight

exhibits.

A transcript of the final hearing was filed on September 15,

2005. The parties requested and were granted leave to file any

propos ed recommended orders no later than October 26, 2005. Both

parties availed themselves of the opportunity, and the Proposed

Recommended Order of each party has been reviewed and considered

in the preparation of this Recommended Order.

References to Florid a Statutes are to the 2005 edition,

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is t he Western and Southern Life Insurance

Company, a subsidiary of Cincinnati - based Western & Southern

Financial Group Inc. Respondent is a home service company that

requires sales representatives to call on policy holders on a

regular basis for sales and service. The district sales office in

Pensacola, Florida, is one of 181 sales offices headed by a

district sales manager. Jim Swaim served as the distr ict sales

manager for Respondent’s Pensacola Office from August 5, 2002

until November 3, 2003 .

2. Petitioner Stephen Howe became a Western and Southern

sales representative on January 25, 1993, compensated pursuant to

a Sales Representative Agree ment of that same date, inclusive of

the incorporated Sales Representative Schedule of Commissions,

setting forth his compensation schedule and job duties. He

intermittently served as a sales manager, but voluntarily became a

s ales representative pursuant to a Sales Representative Agreement

dated June 28, 1999 . He remained a sales representative until his

termination on February 3, 2003 .

3. Petitioner was admitted to the hospital and therefore

absent from work beginning August 28, 2002, due to an unrele nting

headache and elevated blood pressure. The conditions cited by

Petitioner's physician were sleep apnea and pheochromocytoma

(pheo), which is a tumor on the adrenal gland that causes excess

adrenaline production. Treatment for pheo usually takes four to

five weeks, and is conducted on an outpatient basis.

4. Petitioner’s disability was documented in September

2002, by Dr. Shawbilz, a neurologist, who reported at that time

to Respondent personnel and described Petitioner’s dizziness, syncope

and hea daches. It was noted that Petitioner could not drive at

that time due to obstructive sleep apnea, syncope and headache.

5. P etitioner's family doctor, Dr. Mayeaux, prepared a report

to Respondent on October, 2002, defining Petitioner's condition as

serio us and “ requiring a period of incapacity from work and

subsequent treatment”. Petitioner’s condition included high blood

pressure, syncope, tremor, diaphoresis and palpitations.

6. On October 2 and 8, 2002, Dr. Mayeaux sent a letter to Lori

Mitchell, a r egistered nurse and the head of the Benefits Department

of Respondent, outlining Petitioner's severe uncontrolled

hypertension and a rare debilitating adrenal tumor. The doctor did

not feel Petitioner should be working at that time. Later, in

further cor respondence dated October 28, 2002, Dr. Mayeaux opined

Petitioner should not operate a motor vehicle at that time.

7. On November 18, 2002, Dr. Mayeaux forwarded another letter

to R espondent's benefit department outlining additional concerns

about Petiti oner’s syncope, chest pain, palpitations, diaphoresis,

and disability to perform meaningful work or drive.

8. On December 19, 2002, Dr. Mayeaux forwarded another letter

to Respondent noting the now determined severe sleep apnea of

Petitioner as a basis fo r daytime somnolence and drop attack/syncope.

He again opined that Petitioner needed surgical relief from ear, nose

and throat (ENT) issues to address sleep apnea prior to return to

work. Respondent initially denied insurance for the surgery to

address t hese issues while also denying Petitioner’s disability

insurance claim.

9. On December 30, 2002, Dr. Mayeaux again wrote to Lori

Mitchell and noted Petitioner’s additional adrenal gland tumor. He

opined, "[Petitioner] may not work until these problems ha ve been

satisfactorily resolved."

10. On January 23, 2003, Mayeaux again wrote to Respondent’s

Benefits Department continuing his disability opinions and noting,

"aggressive surgical evaluation and intervention is underway at this

time."

11. Petitioner ’s blood pressure continued to be labile and

uncontrollable, but Mayeaux hoped to control this with surgery for

Petitioner’s tumor.

12. Sleep apnea, another of Petitioner’s disabilities, exists

when a sleeping person experiences episodes where the indivi dual is

without breath. Petitioner did not respond well to the non - surgical

treatment for this disorder, in which a machine is used to force air

into the sleeping person’s breathing passages. The machine is called

a “C - PAP”. Such treatment was prescribe d for Petitioner without the

best of success. Mayeaux hoped future surgery for the sleep apnea

would help Petitioner’s severe case of this disorder by enlarging

Petitioner’s breathing airway. The sleep apnea symptoms would have

prevented him from driving in the course of his work. Petitioner’s

wife observed Petitioner’s condition worsening beginning around

August 2, 2002, when Petitioner would come home once or twice a day

while working to take a nap.

13. The t umor on Petitioner’s adrenal glands substa ntially

limited major life - s ustaining activities. As established by

deposition testimony of Dr. Mayeaux, hormones secreted by

Petitioner’s adrenal glands were affected by the tumor on his adrenal

glands. There was evidence in Petitioner’s blood of over - p roduction

of adrenaline, with a by - product being excessive production of

epinephrine. That he considered this to be a substantially limiting

factor is one reason Mayeaux opined that Petitioner should not be

working in his then - existing condition.

14. Dep osition testimony of Lori Mitchell establishes that

s he wrote a letter to Petitioner on September 9, 2002, requesting

disability information for short - term disability. Subsequently,

she sent a letter to Petitioner approving disability beginning

September 13, 2002 Per Petitioner’s medical release provided to

her, she had the ability to consult with Dr. Mayeaux. Mitchell was

aware of all information received from Dr. Mayeaux.

15. Mitchell was aware that Respondent's Family Medical Leave

Act (FMLA) Depa rtment sent Petitioner a letter telling him that his

absence of August 28, 2002, through October 8, 2002, was recorded

as a "serious health condition." She also knew short - term

disability was authorized for Petitioner through her department for

the period ending October 8, 2002, following a review of his

medical records.

16. Short Term Disability is defined under Respondent's

plan for associates "who are regularly unable to per form normal

duties of their regular occupation due to sickness or injury."

17. Mitchell was also aware of the "pheo" tumor, which can

develop on an individual’s adrenal glands. She understood

Dr. Mayeaux’s letter to her describing the tumor in Petitioner’s case

as "debilitating" to mean "impairing him." She understood

Dr. Mayeaux 's letter of October 10, 2002, to her to mean Petitioner

was prevented "from performing his daily activities" by his symptoms.

18. Mitchell’s supervisor, Noreen Hayes, explained that the

approval of the extension of short - term disability benefits through

November 30, 2002, was based on "all doctor's notes associated with

[Petitioner’s] condition."

19. Mitchell was familiar with Dr Mayeaux's December 5, 2002

letter concerning the sleep apnea and breathing issues of Petitioner,

as well as other letters from Mayeaux on December 30, 2002, and

January 23, 2003. She identified a Respondent Medical Leave of

Absence form executed on December 12, 2002, where his doctor opined

Petitioner had "a serious health condition that makes you unable to

perform the essentia l functions of your job" and that the condition

would continue until rectified.

20. Dr. Terrell Clark is Respondent's Vice President and

Medical Director. He recalled information received regarding high

blood pressure and sleep apnea to "evaluate what ti me might be

appropriate for [Petitioner’s] disability." He was also aware of a

concern for brain problems due to Petitioner’s head CT scan. He was

aware of the "pheo" tumor diagnosis on Petitioner’s adrenal gland and

resultant production of abnormal horm ones. He also agreed that the

condition was very treatable. He also was acquainted with the

correspondence of Dr. Mayeaux on Petitioner’s behalf.

21. Dr. Mayeaux opined it would be possible for Petitioner

to have performed an office - type job that did not require

driving. His ability to provide service to his clients was

otherwise unimpaired. During August, 2002 to February, 2003,

Petitioner was in constant contact with Respondent personnel and

his clients by phone. In the words of Karen Howe, "he wa s

always on the phone" until the end of his employment. The phone

was part of his normal job activity.

22. During this same time, Petitioner filled out all his clients’

paperwork and paperwork for their families in regard to financial

matters. He was al so able to give advice to clients as he always

had.

23. There are clerical positions in the field offices of

Respondent. In Cincinnati, Ohio, Respondent has hundreds of

clerical positions that do not require driving as an essential

function of the job. The company has 1,900 clerical sedentary

positions. Most of these do not require driving.

24. Dr Mayeaux sent a letter to Respondent dated January 30,

2003, stating that Petitioner could return to work so long as he

did not drive. He also told Petition er earlier that h e could work

if someone else drove.

25. No direct credible evidence was presented that having

Petitioner's wife drive him would not result in a reasonable

accommodation for Petitioner. The company does not insure the

vehicle Petitioner drove as part of his work. There is also no

direct credible evidence that Respondent required Petitioner to be

covered with insurance over and above what he and his wife ordinarily

carried on their vehicle. No evidence was presented assailing the

drivin g abilities of Petitioner’s wife.

26. Petitioner's job did not require that he drive at any

certain time. His wife often rode with her husband while he was

meeting with his clients or Respondent personnel during the years of

his employment. She routin ely went by the local office, saw his

manager, and no one ever objected to her riding with Petitioner.

27. Petitioner’s wife asked his district manager, on her

husband’s behalf, three or four times if she could drive her husband

after he was told by his d octor not to drive. Her requests were

denied. She was willing to do this without pay, with the vehicle he

customarily used, that they both owned, and kept well insured. She

drove him to his last day at work where, when informed that he was

fired, he cri ed.

28. Thomas Johnson is the company vice president responsible

for administering Respondent’s leave - of - absence policy. Respondent

personnel monitor when an employee "can return to work.” Johnson

initially received a form noting Petitioner began his leave of

absence as a result of illness on August 28, 2002. Johnson receives

information from a Respondent committee that meets to discuss whether

to allow accommodations for injured employees. Pursuant to the

committee’s action, Johnson notified Petitio ner that Short Term

Disability was approved through November 30, 2002.

29. Johnson wrote a letter on January 23, 2003, to Petitioner

to return to work on full - duty status on February 2, 2003, or be

terminated. This letter was based on a meeting of his de partment’s

medical and legal personnel.

30. At the meeting, which resulted in Johnson’s letter to

Petitioner, all of those in attendance decided not to accommodate

Petitioner. At that meeting they never discussed restructuring or

modifying Petitioner’s position or reassigning him, even though the

only restriction Johnson was aware of was the restriction on

Petitioner’s driving.

31. At that meeting, they did discuss time for Petitioner to

provide medical information in regard to Petitioner’s fitness t o

return to work. As a result of the denial by the committee of further

Short Term Disability Leave, Petitioner's right to a further leave of

absence ended, absent a "fitness for duty" report.

32. Johnson informed Petitioner of the Respondent committee ’s

action by another letter dated January 27, 2003, sent from

Cincinnati, Ohio, to Petitioner in Pensacola, Florida, through

regular post office mail to a numbered post office box. Per that

letter, Johnson required that Petitioner have the requisite fitne ss

for duty report by February 3, 2003, or be terminated. Petitioner

was not provided the appropriate form for the report as part of this

communication and he was not given any time to obtain the

information, yet he was terminated for not having it.

33. Johnson instructed Petitioner's District Manager on

February 3, 2003, that Petitioner could not work that day because of

"unauthorized leave of absence".

34. Johnson sent a letter on February 3, 2003, terminating

Petitioner. The clause Johnson used to terminate Petitioner was

"absence for two days without notice."

35. Johnson received a letter from Dr. Mayeaux dated

January 30, 2003, after he had sent his February 3, 2003 letter to

Petitioner. Mayeaux’s letter stated that Petitioner could work as

lon g as he did not drive. Petitioner showed up for work on

February 3, 2003, with only the letter of January 23, 2003.

36. The employment agreement provided by Respondent to

Petitioner does not spell out what medical evidence is to be

provided to prevent ap plication of the "unauthorized leave of

absence" clause used to terminate Petitioner.

37. By company policy, there is no right for an unpaid leave

of absence because of a disability claim.

38. Johnson was fully informed and received regular

informatio n from Lori Mitchell regarding Petitioner’s condition as

reported by his doctors to her.

39. When an employee such as Petitioner is absent from the

office, this fact is reported to Respondent’s home offices without

notice to the affected employee.

40. Dean Vonderheide is the director of Respondent’s benefit

department. His testimony establishes that the Summary Plan

Description given to Respondent employees for Short Term Disability

provides no information regarding where an employee can get the

forms to file claims.

41. A terminated employee is not entitled to long - term

disability benefits.

42. Neither Lori Mitchell, R.N.; vice president Dr. Clark; or

vice president Johnson made any effort to contact Petitioner or his

doctor to supplement or add to what was included by Dr. Mayeaux in his

correspondence dated January 30, 2003.

43. Petitioner was wrongfully terminated by Respondent on the

basis of Petitioner’s disability without fair consideration by

Respondent of Petitioner’s request for accommoda tion, i.e. , that his

wife be permitted to chauffer Petitioner in the course of his

continued employment or that alternative employment for Petitioner

within Respondent’s company be considered by Respondent. Such

provision had been made for a former sales person of Respondent.

44. Petitioner lost wages from his termination of

employment with Respondent up and through his death on July 6,

2003. The income tax records in evidence show that Respondent

paid Petitioner a total of $42,057.09 in the taxable ye ar 2002.

CONCLUSIONS OF LAW

45. Whether jurisdiction exists in this forum to consider

and award recompense to Petitioner’s estate for wrongful

termination by Respondent of Petitioner’s employment on the

basis of Petitioner’s disability, without affordi ng Petitioner a

reasonable accommodation, is more fully discussed below in this

Recommended Order.

46. Florida law prohibits employers from discriminating

against employees on the basis of a handicap. § 760.10(1)(a),

Fla. Stat. The Florida Civil R ights Act of 1992, Section

760.01, et seq ., is modeled after Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Section 2000, et seq .; therefore, case

law interpreting Title VII is also relevant to cases bought

under the Florida Civil Rights Act. Florid a Department of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991). Additionally, the Florida Civil Rights Acts is construed

in accordance with the Americans with Disability Act (ADA),

42 U.S.C., Section 12101, et seq . Razner v. Welli ngton Regional

Medical Center, Inc. 837 So. 2d 437, 440 (Fla. 4th DCA 2002).

47. A petitioner in a discrimination case has the initial

burden of proving a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct . 1817,

36 L. Ed. 2d 668 (1973).

48. If the petitioner proves a prima facie case, the

burden shifts to the respondent to proffer a legitimate non -

discriminatory reason for the actions it took. Texas Department

of Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089,

67 L. Ed. 2d 207 (1981). The respondent's burden is one of

production, not persuasion, as it always remains the

petitioner's burden to persuade the fact - finder that the

proffered reason is a pretext and that the respondent

inten tionally discriminated against the petitioner. Burdine ,

450 U.S. at 252 - 256.

49. In the instant case, Petitioner's widow alleges that

Respondent discriminated against Petitioner based on his

disability of sleep apnea, his adrenal gland tumor and

s ubsequent effects on his physical health by not granting him

reasonable accommodations in his employment. Testimony received

at final hearing, coupled with medical correspondence presented

at that hearing, indicates that Petitioner could have continued

in his employment with reasonable accommodation. Petitioner's

widow has shown a prima facie case of discrimination on

Petitioner's behalf, with the exceptions noted below in this

Recommended Order.

50. A person is disabled when: (a) he or she has a

physical or mental impairment that substantially limits one or

more major life activities, i.e., the inability to breathe while

sleeping or control body metabolism as the result of an adrenal

gland tumor; (b) he or she has a record of having an impairment ;

or (c) he or she is regarded as having an impairment. 42 U.S.C.

§ 12102(2); 29 C.F.R. § 1630.2(g)(I). Petitioner's widow has

demonstrated (a) that Petitioner was a disabled person within

the meaning of the Florida Civil Rights Act and the ADA; and (b)

he was "qualified" to perform the job apart from his disability.

51. Respondent's assignment of duties to Petitioner,

requiring that he, and he alone, drive his car in the course of

his job, was without the reasonable accommodation of permitting

Pe titioner to use a chauffer at his own expense, and must be

considered pretextual.

52. Petitioner's wife has proven that Petitioner's

disability would not, with the reasonable accommodation

previously sought by she and her late husband, interfere wit h

his ability to perform the job for which he was hired. A

qualified individual with a disability is one who can perform

the essential functions of the job. 42 U.S.C. § 12111(8). The

term "essential functions" means the fundamental job duties of

the emp loyment position. 29 C.F.R. § 1630.2(n)(1). In this

case, the evidence indicates that Petitioner, with the

accommodations previously denied by Respondent, was qualified to

continue to work as an insurance salesman for Respondent.

53. The ADA im poses a duty on employers to provide

reasonable accommodations for known disabilities unless doing so

would result in undue hardship. Hernandez v. Prudential

Insurance Company , 877 F. Supp. 1160, 1165 (M.D. Fla. 1997).

Respondent knew Petitioner’s disabi lity. No credible evidence

was presented, however, that Respondent’s requirement that

Petitioner drive his own automobile was conducive to the

reasonable accommodation requested by Petitioner and his wife.

Such accommodation was certainly feasible.

54. Based on the evidence received, Petitioner was refused

a reasonable accommodation for his disability, which was within

Respondent's power to grant.

55. Finally, we come to the possible remedies that would,

b ut for Petitioner's death, have been avai lable in this situation.

Normally, were Petitioner still alive, a recommended order would issue

to the FCHR, recommending the entry of a final order finding that

Respondent had imposed an illegal employment practice on Petitioner,

directing the imposition of penal remedies inclusive of the re -

employment of Petitioner, full award of back pay and benefits in an

approximate amount calculated on the available evidence (in this

instance, payments made to Petitioner in the taxable year prior to his

employment te rmination). In that regard, such a recommended order

would note that Petitioner lost wages from termination of

employment on February 3, 2003, up and until his death on

July 6, 2003. The income tax records in evidence show that

Respondent paid Petitioner a total of $42,057.09 in the taxable

year 2002. Accordingly, if his earnings for the 2003 tax year

had been similar and his employment had continued until his

death, an extrapolated figure (5/12 x $42,057.09) of $17,523.78

would approximate the amount of wages that Petitioner would have

expected to have received from Respondent for the period

February 3, 2003 through July 6, 2003.

56. Such a remedy is not possible in this case. Petitioner is

deceased. He died before he could even perfect his request for a

formal administrative hearing through FCHR's Petition for Relief

process. The Petition for Relief was filed and pursued by

Petitioner’s estate. It is axiomatic that an administrative agency

may only do what it is statutorily empowered to do. Nowhe re in the

statutory authority contained in Part I, Chapter 760, Florida

Statutes, has the undersigned been able to decipher any basis for FCHR

to hear and dispose of cases where the complainant of a violation of

personal employment rights is deceased. Rem edies available for

consideration where there has been a violation of employment rights

are penal in nature and are not available where the complainant has

died. Caraballo v. South Stevedoring, Inc. , 932 F. Supp. 1462,

( S.D.Fla,1996)

57. The wrongful tre atment of Petitioner can only be considered

a personal violation of his rights, visited upon him by Respondent.

Based on the evidence presented, that violation could potentially be

considered a tortuous action. As such, relief for Petitioner's estate

may well lie within the jurisdiction of a forum equipped to provide

the equitable relief suggested in this matter. See Knowles v.

Beverly Enterprises - Florida, Inc. , 898 So. 2d 1, at page 8,

(Fla. 2004) issued on December 16, 2004. The statutory scheme

set f orth in Chapter 760, Florida Statutes, does not, however,

make provision for such equitable relief to be provided in this

forum when, as in this matter, the Petitioner is deceased.

58. Jurisdiction is obviously essential to fashioning a

remedy in a ny forum. Despite a request made at the final

hearing to the parties to provide the undersigned with a basis

to presume jurisdiction, there has been no response to that

request. Such equitable jurisdiction does not exist in the

forum of the Division of A dministrative Hearings for a matter

like the case at bar.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief for lack of jurisd iction.

DONE AND ENTERED this 16th day of November, 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 16th day of November, 2005.

COPIES FURNISHED :

Daniel Stewart, Esquire

4519 H ighway 90

Pace, Florida 32571

Alice M. Fitzgerald, Esquire

Western & Southern Financial Group

400 Broadway

Cincinnati, Ohio 45202 - 3341

Linda G. Bond, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Ce cil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303 - 4149

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303 - 4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue t he final order in this case.