05-002975 Cheryl Lenard vs. A.L.P.H.A. &Quot;A Beginning&Quot; Inc. Status: Closed Recommended Order on Tuesday, January 31, 2006.

Summary: Petitioner`s impairment does not rise to the level of a disability, and Respondent properly dismissed her for excessive absences.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL LENARD , )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 2975

)

A.L.P.H.A . "A BEGINNING" INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administ rative Law Judge (ALJ) Daniel Man ry conducted the

f inal hearing in this proceeding on December 6 , 200 5 , in

St. Petersburg , Florida , on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Phyllis J. Towzey, Esquire

Law Office of Phyllis J. Towzey, P.A.

The Kress Building, Suite 401

475 Central Avenue

St. Petersburg, Florida 33701

For Respondent: Theresa A. Deeb, Esquire

Deeb & Brainard, P.A.

5999 Central Avenue , Suite 202

St. Petersburg, Florida 3 3710

STATEMENT OF THE ISSUE

The issue for d etermination is whether Respondent

discriminated against Petitioner on the basis of a handicap, in

violation of Sectio n 760.10, Florida Statutes (2003).

PRELIMINARY STATEMENT

On January 5, 2005 , Petitioner filed a n Employment Charge

of D iscrimination with the Florida Commission on Human Relations

(Commission). On Ju ne 29, 2005 , t he Commission issued a

Determination: No Cause . Petitioner timely requested a f inal

hearing by filing a Petition for Relief with the Commission on

August 3, 2005, and the Commission referred th e matter to DOAH

to conduct the hearing.

At the hearing, P etitioner testified, called five oth er

witnesses, and submitted seven exhibits for admission into

evidence. Respondent called one witness and submitted

28 exhibits for admission into evide nce.

The identity of the witnesses and exhibits, and any r ulings

regarding each, are reported in the one - volume Transcript of the

hearing filed with DOAH on December 27 , 2005 . The parties

timely filed their respective P roposed R ecommended O rders (PROs)

on January 9 and 6, 2005 .

At the hearing, Respondent made a n ore tenus motion on the

record to exclude evidence submitted by Petitioner that

Petitioner did not disclose seven days prior to the hearing in

violation of the p re - hearing Order previously entered in this

proceeding. The motion is denied for lack of pre judice to

Respondent. The evidence submitted by Petitioner has not

result ed in unfair surprise to Respondent. Respondent was

entitled to address any unfair surprise through procedures less

onerous than the exclusion of evidence, including a request to

ke ep the record open for rebuttal evidence, and did not avail

itself of any less onerous procedure .

FINDINGS OF FACT

1. Respondent operates a residential program for young ,

homeless women who are pregnant or have infants. Respondent is

required by applicable state law to maintain minimum staffing

requirements or expose its license to disciplinary action.

2. Respondent employed Petitioner as a residential staff

assistant (RSA) from sometime in Augus t 2002 until February 2,

2004. Petitioner work ed five days a week during shift hours

that varied during her employment.

3. As an RSA, Petitioner's duties included assisting

residents with care for their babies , babysitting , assisting

residents with meal planning and budgeting , writing staff notes

for parent and child , driving residents to and from medical

appointments , and otherwise "assist mother and child in anyway ."

With the exception of excessive absences discussed hereinafter,

it is undisputed that Petitioner was able to perform the

essential functions of her job and did so satisfactorily to

Respondent .

4. Sometime in May 2003, Petitioner suffered a back injury

while riding a horse . Petitioner suffered a herniated disc

located at L5 - S1.

5. After the injury, Petitioner experienced righ t - side

pain and sought treatment initially from chiropractic therapy

and acupuncture. However, Petitioner's symptoms persisted .

6. Petitioner sought medical treatment sometime prior to

July 2003. An MRI conducted on July 21, 2003, diagnosed the

herniat ed disc, a nd Petitioner subsequently underwent surgery on

Sep tember 11, 2003, identified in the record as a laminectomy .

7. By a physician's note on a prescription pad dated

October 29, 2003, the treating physician authorized Petitioner

to return to wo rk on November 2, 2003. The physician's note did

not presc ribe any limitations for Petitioner. Petitioner

returned to work on the prescribed date.

8. On November 10, 2003, a d irector for Respondent

required Petitioner and a co - worker to close the secur ity gate

to the facility. The electric motor for the gate was not

functioning, and th e two co - workers had to close a heavy

security gate by manually pulling until the facility was secure .

9 . By a physician's note on a prescription pad dated

November 1 4, 2003, the treating physician prescribed "light

duty" for Petitioner. The light - duty restrictions were limited

to "no pulling . " A preponderance of evidence does not support a

finding that Respondent required Petitioner to perform any

" pulling " after No vember 10, 2003.

10. Petitioner's back condition i s an impairment within

the meaning of the Americans with Disabilities Act, 42 U.S.C.

Section 12112, et seq . (ADA) , and the Florida Civil Rights Act,

Chapter 760, et seq . , Florida Statutes (2003) (FCRA) . After

surgery , Petitioner continued to experience pain in her right

side and, due to inactivity, gained approximately 100 pounds.

Petitioner's resulting impairment has limited her ability to

work by impairing her ability to sit for long periods , pull,

lif t, bend to retrieve files from lower file drawers , and drive.

11. Petitioner's impairment is permanent. The surgery did

not eliminate Petitioner's impairment , and Petitioner is

relegated to physical therapy and pain medication as the sole

medical trea tment for her condition. After more than two years

of such treatment, Petitioner's impairment persists.

12 . Petitioner's impairment did not prevent her from

s atisfactorily performing her job duties other than attendance.

Disputed requests for accommoda tions in the form of a particular

chair that was comfortable for Petitioner and in the form of the

location of files in higher drawers for easier access by

Petitioner were not necessary for Petitioner to perform the

essential functions of her job. It is u ndisputed that

Petitioner satisfactorily performed her job duties without those

accommodations .

13 . Petitioner's impairment caused her to be absent from

work six of 20 workdays between November 2 and 30, 2003, and

nine of 52 workdays between December 4 , 2003, and February 2 ,

2004. The first six absences were excessive pursuant to

Respondent's written Policy HR 103. In addition, Petition er did

not provide a supervisor with prior notice or cause of absences .

However, each absence was required for Petit ioner to either

attend physical therapy or for Petitioner to recover from

physical therapy. After the first absence, Respondent knew the

causes of the absences .

14 . On December 3, 2003, Petitioner and Respondent

executed a Corrective Action Plan (CAP) i n which Petitioner

agreed there would be no further unscheduled absences.

Respondent agreed to reduce the time required in HR 103 for

prior notice from eight to six hours. After executing the CAP,

Petitioner had nine unscheduled absences during approxima tely

52 workdays between December 3, 2003, and February 2, 2004.

15 . Petitioner was unable to call in to her supervisors

because of problems with telephones and voicemail s, including

those at the facility and cellular telephones maintained by

supervis ors. However, Petitioner knew o f the telephone problem

and knew her therapy schedule. A preponderance of evidence does

not support a finding that Petitioner requested Respondent

either to utilize an alternative method of communication or to

arrange her w ork schedule to accommodate Petitioner's therapy

schedule.

16 . On January 30, 2003, Respondent notified Petitioner

that Respondent was changing Petitioner's employment status to

"on - call" because Petitioner was unable to satisfy the

attendance requiremen ts of an RSA. Petitioner refused to accept

the change in status due to the uncertainties of pay and the

loss of benefits. On February 2, 2004, Respondent terminated

Petitioner from her employment.

17 . Petitioner's impairment is neither a "disability" n or

a "handicap" within the meaning of the ADA and FCRA,

respectively. The impairment did not substantially limit

Petitioner's ability to perform the major life activity of

working. Petitioner's impairment did not prevent her from

satisfactorily performin g her job duties other than attendance.

18 . A preponderance of evidence does not support a finding

that Petiti oner's impairment precludes her from either a class

of jobs or a broad range of jobs. Petitioner showed that she

has made a reasonable effort t o secure other employment without

success. However, a preponderance of evidence does not support

a finding that Petitioner's impairmen t is the cause of her

inability to obtain employment.

19. The Social Security Administration denied Petitioner's

disabi lity claim. The agency found that Petitioner has received

tr eatment for her impairment and that the impairment does affect

her ability to work. However, the agency found that Petitioner

is "still capable of performing" the duties of an RSA.

CONCLUSION S OF LAW

2 0. DOAH has jurisdiction over the parties and the subject

matter of Petitioner's claim for relief under the FCRA .

§§ 120.569 and 120.57(1), Fla. Stat. (200 5 ). DOAH provided the

parties with adequ ate notice of the f inal hearing.

2 1. Florida c ourts construe disability discrimination

actions under the FCRA in conformity with the ADA . Judicial

decisions by federal courts are controlling in this proceeding .

Wimberly v. Securities Technology Group, Inc . , 866 So. 2d 146

(Fla. 4th DCA 2004); Tourvi lle v. Securex, Inc. , 769 So. 2d 491

n.1 (Fla. 4th DCA 2000); Greene v. Seminole Electric Coop.,

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997).

2 2. Petitioner has the initial burden to make a prima

facie showing that Respondent discriminated against Petitioner

on the basis of a disability. Petitioner must show by a

preponderance of the evidence that s he is a handicapped person,

she is a qualified employee, Respondent took an adverse

employment action against Petitioner solely because of the

handicap, and Respo ndent had knowledge of the disability or

considered Petitioner to be disabled. Gordon v. E.L. Hamm &

Associates , 100 F.3d 907, 910 (11th Cir. 1996).

23 . A preponderance of evidence shows Petitioner is a

q ualified employee able to perform the essential functions of

her job, including attendance , with or without reasonable

accommodations within the meaning of 42 U.S.C. Section 12112(a).

Wood v. Green , 323 F.3d 1309, 1312 (11th Cir. 2003) ; Cramer v.

Florida , 117 F.3d 1258, 1264 (11th Cir. 1997) .

24 . A p reponderance of evidence does not support a finding

that Petitioner is either disabled or handicapped within the

meaning of the ADA or FCRA, respectively. An impairment is not

synonymous with a disability or handicap. Wimberly v.

Securities Technology Gr oup, Inc . , 866 So. 2d at 147. An

employee who suffers an impairment from back pain following

surgery and post - surgical medical treatment, cannot sit or stand

in one place for more than an hour , and experiences excessive

absences due to her impairment does not have a disability within

the meaning of the ADA. Dupre v. Charter Behavioral Health

Systems of Lafayette Inc. , 242 F.3d 610 (5th Cir. 2001).

25. If Petitioner's impairment were found to prevent her

from performing her job, that fi nding alone would n ot prove that

Petitioner is disabled. Petitioner must further show that her

back injury precluded her from a class of jobs or a broad range

of jobs. Dupre , 242 F.3d at 614. Petitioner failed to

establish the essential prerequisites of a disability .

26. If Respondent were found to have a disability or

handicap, a preponderance of evidence does not show that

Respondent took the adverse employment action against Petitioner

solely be cause of Petitioner's disability . Minimum staffing

levels are conditions o f Respondent's license. § 409.175, Fla .

Stat . (2003); Fla . Admin . Code R . 65C - 14.079. Unscheduled

absences by staff expose Respondent to license di scipline for

failure to maintain minimum staff requirements.

27. Apart from the staffing requirements fo r Respondent's

license, attendance is an essential job function. A n employer

may terminate employment for excessive absence. Earl v.

Mervyns, Inc. , 207 F.3d 1361, 1366 (11th Cir. 2000);

Schwertfager v. City of Boy n ton Beach , 42 F. Supp. 2d 1347, 1362

(S. D. Fla. 1999).

28 . Petitioner was well aware of the her therapy schedule

and the difficulty of communicating by telephone with her

supervisors . Petitioner failed to show that she requested

Respondent to utilize an alternate means of communication or to

s chedule Petitioner's work around her therapy . Petitioner must

request an accommodation before an employer can deny the

accommodation. Schwertfager , 42 F. Supp. 2d at 1362.

29 . If Petitioner were found to have requested

modification s in the form of a pa rticular chair that was

comfortable for Pe titioner and in the form of relocated files

for easier access, those modifications are not "reasonable

accommodations " because the y were not necessary for Petitioner

to perform the essential functions of her job . The term

"reasonable accommodation" must be construed to mean an

accommodation that presently, or in the immediate future,

enables Petitioner to perform the essential functions of his

job. Wood , 323 F.3d at 1312 - 1314 . It is undisputed that

Petitioner sat isfactorily performed her job duties without the

disputed modifications.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

tha t Respondent did not discrim inate against Petitioner on the

basis of a disability or handicap .

DONE AND ENTERED this 31st of January , 200 6 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hea rings

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 31st day of January, 200 6 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

T allahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Phyllis J. Towzey, Esquire

Law Office of Phyllis J. Towzey, P.A.

The Kress Building, Suite 401

475 Central Avenue

St. Petersburg, Florida 33701

Theresa A. Deeb, Esquire

Deeb & Brainard, P.A.

5999 Central Avenue , Suite 202

S t. Petersburg, Florida 33710

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.