05-003079 Barbara Martin vs. Woodland Extended Care, Inc. Status: Closed Recommended Order on Wednesday, November 30, 2005.

Summary: Petitioner did not present a prima facie case of discrimination based on her alleged disability of depression.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA MARTIN, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3079

)

WOODLAND EXTENDED CARE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hea ring was conducted in this case on November 8,

2005, in Deland, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barbara Martin, pro se

635 West Hu bbard Avenue

Deland, Florida 32720

For Respondent: Kelly V. Parsons, Esquire

Cobb and Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment action against Petitioner by discriminating against

her based on her disability in violation of Section 760.10,

Florida Statutes (2005).

PRELIMINARY STATEMENT

On May 12, 2005, Petit ioner Barbara Martin (Petitioner)

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR). The complaint alleged

that Respondent Woodland Extended Care, Inc. (Respondent) had

discriminated against Petitioner b y terminating her employment

based on an alleged disability.

On August 3, 2005, FCHR issued a Determination: No Cause.

On August 19, 2005, Petitioner contested FCHR's determination by

filing a Petition for Relief. On August 23, 2005, FCHR referred

the Petition for Relief to the Division of Administrative

Hearings (DOAH).

On September 7, 2005, Administrative Law Judge Don Davis

issued a Notice of Hearing. The notice scheduled the hearing

for November 8, 2005. DOAH subsequently transferred the case to

the undersigned.

During the hearing Petitioner testified on her own behalf

and presented the testimony of two additional witnesses.

Petitioner offered two exhibits, which were excluded as

inadmissible hearsay.

Respondent presented the testimony of three witnesses.

Respondent offered two exhibits, which were accepted as

evidence.

The court reporter filed a copy of the Transcript on

November 16, 2005. On November 28, 2005, Respondent filed a

Proposed Recommended Order. As of the date of this Recom mended

Order, Petitioner had not filed proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

1. Respondent is a 120 - bed skilled nursing home.

Respondent is licensed by the State of Florida and certified by

Medicare and Medicaid.

2. Pet itioner is and has been a Certified Nurse Assistant

(CNA) since 1975. In January 2005, Petitioner worked for Elder

Care, sitting with one of Respondent's resident's from 7:00 a.m.

to 3:00 p.m. Toward the end of the month, she began looking for

another jo b because her hours as a sitter were being cut back.

3. Petitioner learned that Respondent had an opening for a

floor technician (floor tech). Petitioner had experience

cleaning floors, so she applied for the job on January 31, 2005.

4. Petitioner gave her application to Respondent's

receptionist. Respondent then sent the application, to Teresa

Engram, Respondent's Assistant Director of Housekeeping. The

application included a health checklist/assessment. Petitioner

indicated on the form that sh e suffered from high blood

pressure, back pain, and asthma.

5. Ms. Engram reviewed Petitioner's application, and,

during an interview, inquired whether Petitioner would be able

to perform the necessary work. Ms. Engram explained that the

person hired f or the job would have to work a flexible schedule

because the facility's floors could only be stripped and waxed

at night when the patients were asleep.

6. Petitioner assured Ms. Engram that she would be able to

do the job. Petitioner did not reveal th at she suffered from

depression. Petitioner did not tell Ms. Engram that her health

problems, such as asthma, would prevent her from working around

the strong chemicals used in stripping floors. Petitioner told

Ms. Engram she would be able to work at nig hts with advance

notice so that she could arrange a babysitter for her

grandchild.

7. Petitioner passed the required medical test and

background check. She began working on or about February 1,

2005. Her regular hours were from noon to 8:00 p.m., Sun day

through Thursday, with the understanding that she would have to

work scheduled night shifts.

8. Petitioner initially trained with another floor tech,

Johnnie Betsy. After a few days, Petitioner worked on one side

of the facility and Mr. Betsy work ed on the other. Her duties

included sweeping, mopping, and buffing the floors, as well as

taking out the trash.

9. At least once a year, Respondent's floor techs strip

and wax the floors in the facility. The project takes about a

month from start to finish. The work is performed at night.

The waxing and stripping project was already underway for 2005

when Petitioner began working for Respondent.

10. Ms. Engram made several attempts to schedule a night

shift for Petitioner so that she could trai n with Mr. Betsy and

help him strip and wax floors. Petitioner let Ms. Engram know

that she did not want to work the night shift. Additionally,

Petitioner was unhappy with her salary and complained that she

should be making more money. Ms. Engram discus sed Petitioner's

complaints with Rhonda Cheney, Respondent's Director of Laundry

and Housekeeping.

11. Eventually, Petitioner learned that Respondent had an

opening for a CNA position. Petitioner told Ms. Engram and

Ms. Cheney that Petitioner was goin g to apply for the CNA

position because it involved fewer hours, two days on and four

days off.

12. At some point in time, Petitioner received Social

Security disability benefits. There is no competent evidence to

show what disability Petitioner had th at entitled her to

disability benefits. Apparently, Petitioner lost her disability

benefits before she started working for Respondent because she

made too much money at a prior job.

13. Petitioner wanted the new CNA position even though she

would make less money than a full - time floor tech. Petitioner

believed she could reestablish her disability benefits if she

earned less money.

14. Sometime during the first week of March 2005,

Ms. Engram advised Petitioner that she would have to work the

night sh ift beginning 9:00 p.m. on March 6, 2005, till 5:00 a.m.

on March 7, 2005. Petitioner agreed to work as scheduled, with

the understanding that she and Mr. Betsy would strip and wax

hall floors.

15. Petitioner testified that she told Ms. Engram that she

should have an ambulance present on the night of March 6, 2005,

in case Petitioner had an asthma attack from the strong

chemicals used to strip the floors. Petitioner's testimony in

this regard is not persuasive. The greater weight of the

evidence indic ates that Petitioner never verbally discussed her

mental or physical health problems with Ms. Engram.

16. On March 3, 2005, Petitioner learned from Mr. Betsy

that there was not enough wax to complete the job planned for

the evening of March 6, 2005. Ev en without the wax, Petitioner

and Mr. Betsy had plenty of work to do stripping floors. The

floors did not have to be waxed the same night they were

stripped.

17. Petitioner decided to work her regular hours on

March 6, 2005, from noon to 8:00 p.m. Pe titioner made this

decision without Ms. Engram's knowledge or approval.

18. Mr. Betsy worked alone on the March 6, 2005, night

shift. He spent the evening stripping floors, using the wax

that was available to polish a small area, and performing other

r outine tasks.

19. On March 7, 8, and 9, 2005, Petitioner worked her

regular hours. Ms. Engram did not discover that Petitioner had

not worked her scheduled shift on March 6, 2005, until

Ms. Engram made a routine check of the time cards on or about

Marc h 9, 2005.

20. Petitioner was still hoping to get the new CNA

position on March 9, 2005. That evening, Petitioner was working

as a floor tech when she noticed that Sid Roberts, Respondent's

interim administrator, was working late. Petitioner approache d

Mr. Roberts to tell him about her application for the CNA

position and why she needed the new job. During that

conversation, Petitioner told Mr. Roberts that she suffered from

depression and that she had previously received disability

benefits for that condition.

21. On or before March 10, 2005, Ms. Engram consulted with

Ms. Cheney about Petitioner's decision not to work her scheduled

shift on March 6, 2005. Ms. Engram and Ms. Cheney did not

discuss Petitioner's alleged disability or health problems.

Ms. Engram was not aware that Petitioner had any health problems

that needed to be accommodated. Ms. Cheney was not aware that

Petitioner had any health problems at all.

22. After consulting with Ms. Cheney, Ms. Engram made the

decision to terminate Petitioner's employment. Ms. Engram took

this action because Petitioner did not work from 9:00 p.m. on

March 6, 2005, to 5:00 a.m. on March 7, 2005, as agreed, but

unilaterally and without Ms. Engram's knowledge, decided to work

her regular hours on March 6, 2005.

23. Subsequently, Mr. Roberts attended a meeting with

Ms. Cheney. Inquiring about Petitioner's employment status,

Mr. Roberts learned that Ms. Engram already had terminated

Petitioner. Mr. Roberts did not have any part in the decision

to hir e or fire Petitioner. Mr. Roberts did not tell Ms. Cheney

or Ms. Engram about his conversation with Petitioner on the

evening of March 9, 2005, until after Ms. Engram terminated

Petitioner's employment. Mr. Roberts' knowledge that Petitioner

suffered fro m depression did not contribute to the decision to

terminate Petitioner's employment.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569, 120. 57(1), and 760.11,

Florida Statutes (2005).

25. It is an unlawful employment practice for an employer

to discriminate against any employee with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual’s disabilit y or handicap. See §

760.10(1), Fla. Stat.(2004)

26. The provisions of Chapter 760, Florida Statutes, are

analogous to those of the Americans With Disabilities Act (the

"ADA"), 42 U.S.C. Section 12101, et seq . Cases interpreting the

ADA are, therefore, applicable to Chapter 760, Florida Statutes.

See Razner v. Wellington Regional Medical Ctr., Inc. , 837 So. 2d

437, 440 (Fla. 4th DCA 2002).

27. A petitioner in a discrimination case has the initial

burden of proving a prima facie case of discrimination. See

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

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

28. 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. See Texas

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

Ct. 1089, 67 L. Ed. 2d 207 (1981). Respondent's burden is one

of production, not persuasion, as it always remains Petitioner's

burden to persuade the fact - finder that the proffered reason is

a pretext and that Respondent intentionally discriminated

against Petitioner. See Burdine , 450 U.S. at 252 - 256.

29. To prove a prima facie case of handicap

discrimination, Petitioner must establish the following

elements: (a) she was a disa bled person within the meaning of

the Florida Civil Rights Act and the ADA; (b) she was able to

perform her assigned duties satisfactorily with or without

accommodation; and (c) Respondent did not accommodate

Petitioner's disability and/or discharged Petit ioner despite her

satisfactory performance. Swenson - Davis v. Orlando Partners,

Inc. , 16 F.A.L.R. 792, 798 (FCHR 1992).

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

physical or mental impairment that substantially limits one or

more major life ac tivities; (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).

31. A qualified individual with a disability must

establish that he or she is able to pe rform the essential

functions of the job with or without reasonable accommodation.

LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 835 (11th

Cir. 1998). "The employee retains at all times the burden of

[persuasion] . . . that reasonable accommodatio ns were

available." Moses v. American Nonwovens, Inc. , 97 F.3d 446, 447

(11th Cir. 1996).

32. An employer unlawfully discriminates against a

qualified individual with a disability when the employer fails

to provide "reasonable accommodations" for the d isability -

unless doing so would impose undue hardship on the employer.

See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a).

33. An employee cannot be terminated for a discriminatory

reason unless the decision maker has actual knowledge of the

disab ility. See Cordoba v. Dillard's Inc. , 419 F.3rd 1169, 1185

(11th Cir. 2005).

34. Petitioner did not present competent medical evidence

that she is disabled. Instead, she presented unsupported

testimony that she suffers from depression, asthma, high bl ood

pressure, and back pain. Petitioner claimed that she is

disabled by depression and not her other alleged health

problems.

35. Depression, by itself does not constitute a

disability. See Pritchard v. Southern Co. Services , 92 F.3rd

1130 (11th Cir. 1996). Petitioner presented no evidence that

her alleged depression limited her activities to any extent.

36. Respondent did not regard Petitioner as having mental

or physical problems. Ms. Engram and Ms. Cheney did not know

about Petitioner's alleged depression when they fired her. The

information that Petitioner provided on the health checklist did

not cause Ms. Engram to treat Petitioner any differently than

Mr. Betsy, or any other employee. Ms. Engram hired Petitioner ,

fully expecting her to be a ble to perform the required duties of

a floor tech.

37. Petitioner presented testimony that she had been

qualified to receive disability benefits at some point in time.

According to Petitioner, the only reason she lost her benefits

was because she made too much money. Petitioner's testimony in

this regard is insufficient to establish a record of an

impairment during the time relevant here. Moreover, there is no

evidence that Ms. Engram and Ms. Cheney knew that Petitioner had

ever received disability b enefits before they hired and fired

her.

38. If Petitioner's alleged disabilities prevented her

from safely working around the chemicals used to strip floors,

then she was unable to perform one of the essential functions of

her job. Petitioner never re quested accommodations for any of

her alleged mental or physical conditions. More important,

Petitioner presented no evidence that such accommodations exist.

39. In sum, Petitioner has not proved her prima facie case

of handicap discrimination. She has not proved the following:

(a) that she had a disability; (b) that she was able to perform

her duties satisfactorily with or without accommodation; (c)

that she asked for an accommodation; and (d) that Respondent

failed to accommodate her disability and/or discharged her

despite her satisfactory performance.

40. On the other hand, Respondent presented evidence of a

legitimate non - discriminatory reason to terminate Petitioner's

employment, i.e. Petitioner failed to work a scheduled night

shift. Instead o f following Ms. Engram's schedule for March 6,

2005, Petitioner unilaterally decided to work her regular shift.

Petitioner's excuse that she and Mr. Betsy did not have to

follow the schedule because there was no wax does not justify

her failure to follow her supervisor's instructions. Petitioner

has not shown that Respondent's reason was a pretext for

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing t he Petition for

Relief.

DONE AND ENTERED this 30th day of November , 2005 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 30th day of November , 2005 .

COPIES FURNISHED :

Ceci l 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

Barbara Martin

635 West Hubbard Avenue

Deland, Florida 32720

Kelly V. Parsons

Cobb and Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.