04-003893 Constance Gatewood vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, April 1, 2005.

Summary: Petitioner failed to establish that a transfer to another position was disability discrimination or retaliation for filing a grievance. There was no adverse effect on privileges, benefits, or conditions of employment and reasonable accommodation was made.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANCE GATEWOOD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3893

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

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 Marianna, Florida on January 3, 2005. The appearances were

as fo llows:

APPEARANCES

For Petitioner: Constance Gatewood, pro se

Post Office Box 262

Campbellton, Florida 32426

For Respondent: Amy McKeever Toman , Esquire

Agency for Persons With Disabilities

Sunland Center

3700 Williams Drive

Marianna, Florida 32446

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner was subjected to an unlawful employment

practice based upon her disability or based upon retaliation, in

purported violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of employment

discrimination by the above - named Petitioner. The charges were

filed on May 17, 2004, and contained the allegation that the

Petitioner had been discriminated against on the basis of race

and disability. On September 27, 2004, a Notice of

Determination of No Cause was entered by the Florida Commission

on Human Relations (C ommission). In that finding it was

determined that there was no reasonable cause to believe that an

unlawful employment practice had occurred. The Commission's

decision was based on the investigative report dated

September 14, 2004. Upon disagreeing wit h that decision the

Petitioner filed a Petition for Relief on October 26, 2004.

According to that petition, the Petitioner was discriminated

against because of her disability and due to retaliation for

filing a grievance. No issue of racial discriminatio n was

raised. The petition was transmitted to the Division of

Administrative Hearings and ultimately to the undersigned

administrative law judge.

The cause come for hearing as noticed. The Petitioner

adduced her own testimony and offered two other witne sses'

testimony. The Petitioner also offered two exhibits which were

admitted into evidence. The Respondent presented the testimony

of three witnesses and sixteen exhibits, all of which were

admitted into evidence. Upon conclusion of the proceeding the

parties requested a transcript of the record and elected to

submit proposed recommended orders. The Proposed Recommended

Orders were filed and have been considered in the rendition of

this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was employed as a Training Specialist II

in the staff development department of the Sunland facility of

the Department of Children and Families. (Now the Agency for

Persons With Disabilities.) At times relevant hereto, in

October 2003, the Petitioner, Consta nce Gatewood, was employed

by "Sunland Marianna" (Sunland).

2. The Respondent Department of Children and Family

Services is an agency of the State of Florida charged, as

pertinent hereto, with implementing statutes, rules, and

policies concerning persons with disabilities who are within its

custody or otherwise.

3. A meeting was conducted with Sunland's management and

the Petitioner on October 8, 2003, in which the Petitioner

provided documentation from a physician confirming that she

suffered from a co ndition triggered by exposure to certain

chemicals or perfumes. This condition was described as

"potentially life threatening." The condition apparently

primarily involved the Petitioner's respiration.

4. Sunland sought to accommodate this condition by

instructing attendees to training sessions conducted by the

Petitioner to refrain from using perfumes, colognes, etc., which

might aggravate the Petitioner's condition. There is no dispute

that the Petitioner has a disability of this nature. Sunland

als o provided each new employee who came for training with the

Petitioner with a separate similar notification. Sunland also

posted the notification in and around the staff development

building, the Petitioner's primary work place. Sunland also

relocated th e Petitioner's office and ordered alternative non -

irritating cleaning supplies in order to accommodate the

Petitioner's condition.

5. Despite these accommodations the Petitioner's condition

still sometimes became symptomatic. In an effort to minimize

he r exposure to perfumes or other chemicals the Petitioner on

occasion would teach from her doorway, rather than standing in

her accustomed place in front of the class. On occasion she

would have to teach her class with all the doors opened, which

sometimes created an uncomfortable draft in cold weather. On

other occasions she would send students out of her class in the

belief that they were wearing a perfume, cologne, or other

chemical agent which was irritating her respiratory condition.

On one or more o ccasions she had to rely on a co - worker to

perform a cleaning task for which she was responsible.

6. The Petitioner received a performance evaluation in

March of 2004, which contained an overall rating of 4.33, a

score which reflects that her performance exceeded expectations.

On performance expectation number one, however, she received a

grade of three rather than the four she had received the prior

year. This was based upon a decline, in her employer's view, of

her performance related to team work and respect for others.

7. Because of this reduction from a four to a three on

this category of her performance evaluation the Petitioner filed

a Career Service Grievance. She contended that her performance

had been based upon "confidential information," d espite her

supervisor's assurances that it was based on her supervisor's

perception of problems the Petitioner had in the areas of

cooperation with co - workers and respect for class attendees.

Upon investigation, the Career Service Grievance was denied by a

memorandum of April 8, 2004.

8. Dr. Clemmons, the superintendent of the Respondent's

facility, continued efforts to accommodate the Petitioner and

her disability. He offered the Petitioner a job in an open

position as a social worker on or about April 1, 2004. This

position would have no deleterious effect on the terms,

conditions, privileges, or benefits of the Petitioner's

employment. The Petitioner was apparently pleased to have the

job transfer to the new position and, in fact, volunteered to

begin the position prior to the customary two week notice

period.

9. The Respondent has continued to attempt to accommodate

the Petitioner and her disability as she has raised issues

regarding her disability upon assuming her new position. The

Peti tioner, however, did not identify in advance any

accommodation - related issues to her employer prior to beginning

work in her new position.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

11. Section 760.10, Florida Statutes, provides that it is

an unlawful employment practice to discharge or otherwise to

discriminate against a person because of that person s

"handicap."

12. Chapter 760, Florida Statutes, is patterned after

Title VII of the Civil Rights Act of 1964, 42 USC 2000e - 2 (Title

VII) and the Americans With Disabilities Act of 1990, 42 USC

12101 et seq. (1994) (ADA). Federal employment discrimi nation

law, including disability discrimination law, can be used for

guidance in construing the provisions of Chapter 760, Florida

Statutes. Chanda v. Englehard/ICC , 234 F.3d 1219, 1221 (11th

Cir. 2000); Fouraker v. Publix Supermarket, Inc. , 959 F. Supp.

1504 (M.D. Florida 1997).

13. The Petitioner claims that her rights under the ADA

were violated when she was "involuntarily transferred" as an

accommodation for her disability. In order to establish a prima

facie case of discrimination based upon d isability the

Petitioner must show that she is disabled; that she is otherwise

qualified for the position in question; and that she was

discharged or otherwise suffered discriminatory employment

treatment because of her disability. See Brand v. Florida Po wer

Corp. , 633 So. 2d 504, 509 - 10 (Fla. 1st DCA 1994). The

Petitioner has the burden of identifying an accommodation that

would allow her to perform a job with her employer. The

Petitioner bears the ultimate burden of persuasion to

demonstrate that such an accommodation is reasonable and the she

was discriminated against because of her disability. Stewart v.

Happy Herman's Cheshire Bridge, Inc. , 117 F.3d 1278 (11th Cir.

1997). The Petitioner has not established a prima facie case of

disability discrimin ation because she has not established all

those elements of proof.

14. There is no dispute, and the Respondent acknowledges,

that the Petitioner does have a "disability" in that she has a

permanent physical impairment (not transitory) that

substantia lly limits a major life activity, that is, breathing.

15. Concerning the second element of prima facie proof a

"qualified individual" is one who, even with a disability can,

with or without reasonable accommodation, perform the essential

functions of the employment position that such an individual

holds. 42 U.S.C. § 12111(8). The Petitioner in this case was

not a qualified "individual" at least with respect to her former

position as a Training Specialist II. The evidence shows that

she frequently c ould not perform all the functions of her job as

a Training Specialist II, even after the implementation of the

accommodations that she suggested to her employer and which her

employer willingly provided. Even if it be determined that she

was minimally qu alified for such position, the Petitioner did

not establish the third element of a prima facie case of

disability discrimination.

16. Concerning the third part of establishing prima facie

proof of disability discrimination, although the failure to

pr ovide a reasonable accommodation for a qualified individual

can constitute unlawful discrimination, one "reasonable

accommodation" specifically identified by the ADA and case law

is "reassignment to a vacant position." Adams v. Henderson , 45

F. Supp. 2d 9 68 (M.D. Florida 1999). See also 42 U.S.C. §

12111(9). In the instant situation, although the Petitioner

could not perform all the essential functions of her former job

as a Training Specialist II, even with accommodation, the

Respondent identified a vac ant position for which she was also

qualified and offered her that position at an alternative

reasonable accommodation. There was no adverse effect on the

terms, conditions, privileges, or benefits of her employment

occasioned by her assuming the new offe red position as an

alternative accommodation. The Petitioner voluntarily accepted

that position and even asked and was allowed to enter and begin

working in that position earlier than the normal two week notice

period. Thus, the third element of the prim a facie case has not

been proven because the Petitioner could not demonstrate that

she suffered discrimination or an adverse employment decision as

a result of her disability.

17. The ADA does not require an employer to "offend or

alienate other valu ed employees in order to accommodate a

disabled employee. . . " Llanes v. Sears Roebuck and Company ,

46 F. Supp. 2nd 1300 (S.D. Florida 1997). Additionally, a

disabled employee cannot force an employer to make a particular

accommodation if another reason able accommodation is available

and offered to the employee. Id. If an employer offers a

reasonable accommodation, its obligation under the ADA is

fulfilled and it cannot be charged with discrimination. Id. In

this case the Respondent offered a reasona ble accommodation to

the Petitioner amounting to transfer to the vacant position for

which she was qualified. Thus, it cannot be established that

the Respondent committed discrimination by doing so.

18. The Petitioner contends also that the Responde nt's

failure to prospectively identify accommodations to be made in

her new position amounted to discrimination as well. It is the

Petitioner's burden to identify an accommodation that will allow

her to perform a job, however, as well as to demonstrate th at

the accommodation is a reasonable one. Stewart v. Happy Hermons

Cheshire Bridge, Inc. supra. The Petitioner herein could not

have known what if any accommodations might be necessary in her

new position since she had not yet begun performing in her new

position, nor could she identify a reasonable one that would

allow her to do the new job. She thus cannot sustain a claim

that discrimination occurred because the Respondent purportedly

failed to accommodate her before she ever began her job in the

new p osition.

19. The Petitioner contends also that the Respondent did

not engage in an "interactive process" as required by the ADA

regulations which "envision an interactive process that requires

participation by both parties." Willis v. Conopco, Inc. 108

F.3d 282 (11th Cir. 1997). See also § 29 CFR 1630.2(o)(2)(ii).

The court for the eleventh circuit has held, however, that

failure to engage in such a process in an of itself, does not

constitute discrimination. Id. In any event the evidence

establi shes that the Respondent made efforts to work

cooperatively with Ms. Gatewood both before and after her

transfer to the new position, and other than her statement,

there is no persuasive evidence to the contrary. Clearly the

discussion between the Respond ent supervisor and the Petitioner

before and after her transfer to the new position constituted an

"interactive process."

20. The Petitioner contends she was transferred to the new

position in retaliation for filing a Career Service Grievance

regardi ng her March 2003 performance evaluation. In order to

establish a prima facie case of retaliation discrimination the

Petitioner must show that she engaged in a "statutorily

protected expression" (i.e. the filing of the grievance); that

an adverse employme nt decision resulted from that action and

that a causal connection between the protected expression and

the adverse employment action existed. Stewart v. Happy

Herman's Cheshire Bridge, Inc. supra.

21. In this case, although the filing of the grieva nce may

be a statutorily protected expression it was not demonstrated

that a transfer to the vacant position was an "adverse

employment decision" made in response to the filing of the

grievance. Contrarily, the transfer was the result of the

ongoing effor t to accommodate the Petitioner in a reasonable

way. It was otherwise unrelated to the Career Service

Grievance. The timing of the transfer, as it relates to the

filing of the grievance, according to the persuasive evidence

was no more than coincidental. Such does not give rise to any

inference of retaliation on the basis of "suspect timing" of the

employment decision. Id. The new position was offered to the

Petitioner because her disability, made it difficult if not

impossible, for her to continue in her job as a Training

Specialist II, not because she filed a grievance. Thus, a prima

facie showing of retaliation - based discrimination has not been

established and the claim should be dismissed.

22. In summary, the Petitioner failed to establish a prima

facie case of discrimination based upon disability or upon

retaliation. Consequently, the charges against the Respondent

should be dismissed.

RECOMMENDATION

Having considered the 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

Commission on Human Relations dismissing the Petition in its

entirety.

DONE AND ENTERED this 1st day of April, 2005, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 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 1st day of April, 2005.

COPIES FURNISHED :

Constance Gatewood

Post Office Box 262

Campbel lton, Florida 32426

Amy McKeever Toman , Esquire

Agency for Persons With Disabilities

Sunland Center

3700 Williams Drive

Marianna, Florida 32446

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallah assee, Florida 32301

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.