06-002400 Jane Seiden vs. Wexford Health Sources, Inc. Status: Closed Recommended Order on Thursday, January 18, 2007.

Summary: Petitioner failed to prove that she was fired for a perceived disability, that is, cancer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANE SEIDEN , )

)

Petitioner, )

)

vs. ) Case No. 06 - 2400

)

WEXFORD HEALTH SOURCES, INC. , 1 )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Septe mber 20 , 2006 , by video teleconference, with sites in

Tallahassee and Lauderdale Lakes, Florida, and Pittsburgh,

Pennsylvania, before Florence Snyder Rivas , a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings, who presided in Tallahassee, Florida. The case was

subsequently assigned to Larry J. Sartin, Administrative Law

Judge, pursuant to Section 120.57(1)(a), Florida Statutes

(2006).

APPEARANCES

For Pet itioner: Scott M. Behren, Esquire

Scott M. Behren, P.A.

2 853 Executive Park Drive, Suite 103

Weston, Florida 33326

For Respondent: Robert J. Sniffen , Esquire

Sniffen Law Firm, P.A.

211 East Call Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is w hether th e Respondent terminated

Petitioner 's employment on the basis of a perceived disability,

in violation of Section 760.10, Florida Statutes (200 4 ) , 2 the

Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

On November 30 , 2005, Jane Seiden file d an Employment

Complaint of Discrimination with the Florid a Commission on Human

Relations (hereinafter referred to as the "FCHR") , naming

"Wexford Health Service, Inc." the Respondent. The parties,

following the final hearing of this matter, filed a Join t

Stipulation as to Correct Party, in which they agreed that the

correct name of the Respondent is "Wexford Health Sources, Inc."

The style of this case has been changed to reflect this

stipulation.

In the C omplaint, Petitioner st ated the following basis for

her charge :

(1) I believe that I have been

discriminated against by my former employer

Wexford based upon my termination for me

being regarded as having a disability and

based upon my sexual orientation (lesbian).

This discrimination was in violati on of the

Florida Civil Rights Act.

(2) I first became employed as a nurse at

the Broward Correctional Institute in 1988.

I was retained at BCI as a nurse in 2001

when Wexford took over the medical

operations at BCI. In October 2004, I was

diagnosed with kidney cancer. I then took

FMLA leave and short term disability leave.

In October 2004, I was still not able to

return to work since I needed additional

surgery and was not yet cleared by my

doctors to return to work. On October 18,

2005 [sic], I s poke with Ellie Ziegler in HR

at Wexford and requested the paperwork for

an extension of medical leave without pay.

The papers arrived the week of October 25,

2004, and I had my doctor complete them on

October 27, 2004. On November 1, 2004, I

received a certified letter from Wexford

terminating my employment. Other comparable

employees were not terminated in similar

circumstances so I believe that my

termination was based upon discriminatory

reasons. I was long time employee of BCI

with a stellar work r ecord, but was

terminated even when additional leave

paperwork was in process.

On May 30, 2006 , the FCHR issued a Determination: No Cause,

in which it stated that it had found that "no reasonable cause

exists to believe that an unlawful emp loyment practic e

occurred." Petitioner timely filed a Petition for Relief with

the FCHR , in which she alleged that Respondent has "unlawfully

discriminated against [her] in violation of Florida Statute

§ 760.10(1)(a) by terminating her employment based upon a

perceived disability."

The FCHR forwarded the Petition for Relief to the Division

of Administrative Hearings for assignment of an administrative

law judge. The Petition was designated DOAH Case No. 06 - 2400

and was assigned to Administrative Law Judge Florence Snyd er

Rivas.

Pursuant to notice entered July 25, 2006 , the final hearing

was scheduled for September 20 and 21 , 2006.

On July 25, 2006, Respondent filed a Motion to Dismiss

Petition, arguing that Petitioner had failed to timely file her

charge of discriminati on with FCHR. It was also argued that,

even if the Petition was not dismissed as untimely, it should be

dismissed because Petitioner's demand for compensatory and

punitive damages are not recoverable in this proceeding.

Respondent subsequently withdrew th e portion of its Motion

to Dismiss to the extent it had been alleged that Petitioner had

untimely filed her charge of discrimination. Respondent

withdrew the Motion, but did so without prejudice to raise the

issue after the evidentiary hearing in this mat ter.

By Order dated September 5, 2006, Administrative Law Judge

Rivas granted Respondent's Motion to Dismiss, as amended . The

Order also allowed amendment of the Petition for Relief by

interlineations to delete all references to compensatory and

punitive damages.

At the hearing, Ms. Seiden testified in her own behalf, and

presented the testimony of Ellie Ziegler and Arthur Victor , both

employees of Respondent . Petitioner's Exhibits 1 through 15

were received into evidence. Respondent presented the testim ony

of Mr. Victor. Respondent's Exhibits 1 through 4 and 7 through

9 were received into evidence. Respondent's Exhibit 5 was

withdrawn and Exhibit 6 was rejected.

There was a dispute during the hearing about some notes

which were taken by Mr. Victor duri ng in the hearing . Those

notes were read into the record and were subsequently filed.

They have been marked as Petitioner's Exhibit 16. T he notes

have been considered further in deciding whether a motion to

strike , which Administrative Law Judge Rivas r eserved ruling on,

should be granted . Based upon a review of the transcript and

the notes, the motion to strike is denied.

The T ranscript of the proceedings was filed with the

Division of Administrative Hearings on October 24 , 2006. The

parties were give n until November 3, 2006, 1 0 days after the

filing of the transcript , to file proposed recommended orders .

Petitioner filed her P roposed Recommended Order on November 2,

2006. Respondent filed Respondent's Proposed Recommended Order

and Respondent's Post - Hearing Brief on November 3, 2006.

On November 30, 2006, Administrative Law Judge Rivas left

employment with the Division of Administrative Hearings without

entering a recommended order in this case. Accordingly,

pursuant to Section 120. 57(1)(a) , F lorida Statutes (2006), the

case was, due to the unavailability of Administrative Law Judge

Rivas, assigned to the undersigned for entry of the Recommended

Order based upon the record.

Attempts to locate the transcript of the final hearing

after the departure of Administrative Law Judge Rivas were

unsuccessful. Therefore, the undersigned requested that his

administrative assistant contact Respondent's counsel, who is

located in Tallahassee, and request that he allow a copy of

Respondent's copy of the transcript to be made. On December 6,

2006, Respondent filed a copy of the Transcript.

The post - hearing proposed findings of fact and conclusions

of law and argument of Respondent in its Brief have been fully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A. Ms. Seiden 's Relevant Employment .

1. Petitioner Jane Seiden is an in dividual who was

employed by the Florida Department of Corrections at Broward

Correctional Institute (hereinafter referred to as "BCI") from

December 1988 until the end of March 1999 as a licensed

practical nurse .

2. From April 1, 1999, until October 7, 2001, Ms. Seiden

continued to work at BCI, but was employed by a private

business, Prison Health Services.

3. On October 8, 2001, Respondent Wexford Health Sources,

Inc. (hereinafter referred to as "Wexford") took over

responsibility for providin g medical services at BCI.

Ms. Seiden became an employee of Wexford as of that date, after

having received a letter dated June 20, 2001, signed by Wendy

Mildner, as Wexford's Director of Human Resources/Risk

Management, offering her employment with Wexford effective

October 8th. Ms. Seiden accepted the offer of employment on

June 25, 2001.

4. Wexford is a provider of health care services to

correctional facilities, including BCI.

5. Throughout Ms. Seiden's employment at BCI, she received

excellent work performance reviews.

B. Wexford's Leave Policies .

6. Wexford's policies concerning employee "Family and

Medical Leave" at the time of Ms. Seiden's initial employment

with We xford were contained in the Wexford Health Sources, Inc.

Employee Handbook (Respondent's Exhibit 9) (hereinafter referred

to as the "Employee Handbook"). The Family and Medical Leave

policy was, in relevant part, as follows:

Employees who are eligible for Family and

Medical Leave may take up to 12 weeks of

unpaid, job protected leave. Employees are

eligible if they have worked for at least

one year, and for 1,256 hours over the

previous 12 months.

Reasons for taking unpaid leave are:

. . . .

? for a serious health condition that makes

the employee unable to perform the

employee's job.

. . . .

7. The Wexford Employee Handbook , Revised 09/01/04

(Petitioner's Exhibit 9) (hereinafter referred to as the

"Revised Employee Handbook"), establis hed policies governing

"Time Off" in Section 5. Pursuant to Policy 5.3, all employees

are allowed to apply for a leave of absence for medical reasons.

The period of the absence is limited, however, to 12 weeks,

consistent with the Family and Medical Leav e Act (hereinafter

referred to as the "FMLA") , unless the employee is eligible for

"income replacement benefits, " for example for a short - term

disability pursuant to Section 4.5, which provides the

following:

Wexford provides some income protection for

emp loyees who are unable to work for an

extended period of time due to illness or

injury through its Short - Term Disability

Leave (STD) insurance program.

You are eligible for STD benefits if:

· You Have completed one year of

continuous service

· You work a mini mum of 30 hours per week

and are covered by health insurance.

Eligible employees are entitled to short -

term leave for up to 26 weeks in a rolling

12 - month period. The rolling 12 - month

period is calculated by counting backwards

from the date of the leave request. For

example, if you request a leave in November,

the rolling 12 - month period is from November

of the previous year to November of the

current year.

You will be required to provide a medical

doctor's certificate to qualify for short -

term disabili ty leave. STD runs concurrent

with the Family and Medical Leave Act

(FMLA). Your weekly benefit is 50% of your

weekly salary to a maximum of $300,

whichever is less.

. . . .

8. Thus, Wexford policies , at the times relevant, allowed

eligible employees to take up to 12 weeks of leave pursuant to

the FMLA and 26 weeks of what Wexford termed "short - term

disability" leave, the latter to run concurrently with the 12

weeks of family medical leave .

9 . Policy 5.3 describes Wexford's policy concerning "When

Ret urn to Work is Not Possible":

If following 26 weeks of medical leave you

remain unable to return to work your

employment will be terminated. If you are

able to work at a later point in time, you

are welcome to reapply for employment. Your

past history an d work background will be

taken into consideration for reemployment

purposes.

Consistent with this policy, Wexford does not grant extensions

of the 26 week , short - term disability maximum absence. Also

consistent with the policy, Wexford treats an employe e as

terminated at the end of the 26 week short - term disability

absence if the employee does not return to work.

10. Policies 5.3 and 5.4 provide the procedural

requirements for applying for a medical leave of absence (forms

to file, providing health care professional certifications of

illness, etc.) and other procedures and the conditions for which

FMLA leave will be granted. Of relevance to this matter, one of

the conditions for which FMLA leave will be granted is: "a

serious health condition that makes you unable to perform the

essential functions of your job." Policy 5.4.

11. Policy 5.7 of the Revised Employee Handbook is the

established procedure for "Personal Leave of Absence - Unpaid."

That Policy provides, in pertinent part"

With the approval of management and the Vice

President of Human Resources, you may be

granted an unpaid personal leave for

unusual, unavoidable situations requiring an

absence from work. The unpaid personal

leave is for a pre - determined period of

time. Unpaid personal leave s of absence are

awarded at the discretion of management and

cannot be presumed or guaranteed.

You must use all available PTO [personal

time off] before requesting personal leave.

. . .

12. As reasonably interpreted by Wexford, the Unpaid

Personal Leave of Absence policy is not used or intended for use

as a method of taking off time in addition to the time off

allowed by Wexford's policies governing FMLA leave an d short -

term disability leave.

C. Ms. Seiden's Absence from Wexford .

13 . Ms. Seiden, who a cknowledged receipt of, and

responsibility for reading, the Employee Handbook at the time

she was employed by Wexford, was diagnosed with kidney carcinoma

in 2004. As a result of her illness she did not rest

comfortably and, therefore, woke up during the night, she could

not sit for long periods of time, and, although not fully

developed in the record, she required hospitalization.

14 . As a result of her illness, Ms. Seiden was, due to a

"serious health condition," "unable to perform the essential

functio ns of [her] job." As a consequence, the last day that

Ms. Seiden worked at BCI was April 26, 2004.

15 . Ms. Seiden was provided a Memorandum dated May 6,

2004, from Tara M. DeVenzio, Risk Management/Leave Compliance

Assistant (hereinafter referred to as t he "May 6th Memorandum") .

The May 6th Memorandum , which Ms. Seiden read, states that

Wexford had been notified that she was requesting a l eave of

a bsence and is "in need of Family Medical Leave (FML) and Short

Term Disability (STD) forms." Those forms we re included with

the May 6th Memorandum. The May 6th Memorandum goes on to

expla in the procedures Ms. Seiden was required to follow in

making her request for leave and the extent of leave available

to her.

16 . The May 6th Memorandum also informed Ms. Sei den that,

consistent with Wexford's written leave policies, the "[m]aximum

amount of time allotted for Short Term Disability is 26 - weeks on

a rolling twelve (12) month period . . ." and that "[i]f you do

not return when your leave has ended, you will be co nsidered to

have voluntarily terminated employment."

17 . Consistent with the May 6 th Memorandum and the

policies of the Employee Handbook, Ms. Seiden complete d the

forms required by Wexford to apply for FMLA and short - term

disability leave to begin in Apr il 2004, and end in October

2004. Ms. Sei den executed a Wexford Family / Medical Leave of

Absence Request (hereinafter referred to as the " Initial Leave

Request") on May 10, 2004 . (Petitioner's Exhibit 14). On the

Initial Leave Request Ms. Seiden checke d a box which indicated

her reason for requesting leave was "Serious health condition

that makes me, the employee, unable to perform the functions of

my position." A space on the Initial L eave Request for "Date

Leave of Absence to End " was left blank.

18 . Also provided to Wexford with the Initial Le ave

R equest, was a Certification of Health Care Provider

(hereinafter referred to a s the "Certification") , as requir ed by

Wexford's leave policies. The Certification was from Nine J.

Pearlmutter, M.D. Dr. Pea rl mutter reported on the Certification

that Ms. Seiden's "serious health condition" was a "renal mass"

and that hospitalization was necessary. Dr. Pearlmutter also

stated "yes at this time" in response to the following question

on the Certification:

If me dical leave is required for the

employee's absence from work because of the

employee's own condition (including absences

due to pregnancy or a chronic condition), is

the employee unable to perform work of any

kind?

19 . Ms. Seiden's Initial L eave R equest was approved and

she was provided a Memorand um dated May 25, 2004, from

Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed

Ms. Seiden that her leave was approved "to commence on April 26,

2004."

20 . Ms. Seiden's 26 - week period of leave began on

April 26, 2004, ended October 25, 2004. Throughout this period,

Ms. Seiden remained absent from BCI.

21 . On October 22, 2004, a Friday, Ms. Seiden telephoned

Ellie Zeigler a Human Resources Generalist for Wexford, and

spoke to her about the pending en d of her approved leave.

Ms. Seiden informed Ms. Zeigler that she wanted to request an

extension of her leave, which Ms. Zeigler had not authority to

grant or deny.

22 . Ms. Zeigler , who had not authority to approve or

disapprove the request for an extens ion, told Ms. Seiden that

she would send her forms , which she would have to file in order

to request additional leave. Ms. Zeigler also explained to

Ms. Seiden that the maximum leave available to her had been

exhausted, and that, because her physician had not released her

for return to work, her employment with Wexford would be

considered terminated if she did not return to work the

following Monday . Ms. Zeigler also told Ms. Seiden that a

letter to that effect would be sent to her.

23 . Ms. Zeigler, as p romised, sent Ms. Seiden a Wexford

Family / Medical Leave of Absence Request. On Wednesday,

October 27, 2004, two days after Ms. Zeigler's approved absence

ended, Ms. Seiden executed the Wexford Family / Medical Leave of

Absence Request (hereinafter refer red to as the "Second Leave

Request") which Ms. Zeigler provided to her. Again, she checked

as the "Reason for Leave" the box indicating "Serious health

condition that makes me, the employee, unable to perform the

functions of my position" and the "Date L eave of Absence to End"

space was left blank.

24 . A second Certification of Health Care Provider form

(hereinafter referred to as the "Second Certification"),

executed by Dr. Pearlmutter was provided with the Second Leave

Request. Dr. Pearlmutter listed, among other things, carcinoma

of the kidney as Ms. Seiden's illness . While Dr. Pearlmutter

indicates a "2 month" duration for one of the listed conditions,

she did not indicate when Ms. Seiden would be able to return to

work at the end of two months . Ag ain, Dr. Pearlmutter answered

"yes" to the question quoted in Finding of f act 18 .

25 . The Second Leave Request, which was sent by certified

mail on Thursday, October 28, 2004, three days after the end of

Ms. Seiden's approved leave, was received by Wexfor d on Monday,

November 1, 2004, seven days after the end of her approved

leave.

D. The Termination of Ms. Seiden's Employment .

26 . On October 25, 2004, the last day of Ms. Seiden's

approved absence, Arthur Victor, Wexford' s Human Resources

Manager, and Ms . Zeigler exchanged e - mails concerning Ms.

Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler

informed Mr . Victor that October 25, 2004, was the last day of

Ms. Seiden's approved leave . In response to Ms. Zeigler's

information, Mr. Victor wro te "[t]hen there is no extension.

Six months is up 10/30/04. You need to talk to Ron Miller re.

termination." This decision was consistent with Wexford ’s

written policies and was based upon Ms. Seiden's failure to

return to work on October 25, 2004.

27 . Given Mr. Victor's statement that "there is no

extension , " it is found that Mr. Victor had been informed that

Ms. Seiden intended to request an extension of her approved

absence. It is also found that Wexford was aware of the reason

for Ms. Seiden's abs ence: kidney cancer. Finally, it is found

that, by terminating Ms. Seiden's employment, Wexford denied the

requested extension.

28 . After receiving Mr. Victor's e - mail indicating that

Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler

and Ju dy Choate, Ms. Seiden's supervisor, and informed them of

the following:

I received a call from J ane last friday

[sic] requesting an extension for her fmla.

Jane's 26 weeks for her std/fmla has expired

as of today (10/25/04). I just spoke with

Jane and in form [sic] her that her Dr. has

not released her for full duty and that she

was exhausted all of her authorized fmla/std

leave and that Wexford considers her to have

resigned from her position. I told Jane

that Judy will be sending her a letter

confirming her of the above.

To Ms. Choate, Ms. Zeigler continued:

The letter should be sent from you.

Attached you will find a copy of the letter

that Art has drafted for your [sic] to send

to Jane regarding her std/fmla. . . . .

Also, please complete the "Term ination

Processing From" and forward it to the

Pittsburgh office so I can term her out of

the system.

29 . The d r aft termination letter provided to Ms. Choate

and dated October 26, 2004, was signed by Ms. Choate and sent to

Ms. Seiden. The letter (herein after referred to as the

"Termination Letter") states, in part:

As you are aware, you have exhausted all

authorized Family and Medical/Short Term

Disability leave. You were to return to

work on October 25, 2004. Since you have

not returned, Wexford Healt h Sources, Inc.

considers you to have resigned your position

as a Licensed practical [sic] Nurse,

effective October 25, 2004.

If you are in disagreement with this letter,

please contact me immediately but no later

than 4:00pm, on 10/28/02004 at . . . . I f

it is determined that there were extenuating

circumstances for the absence and failure to

notify, you may be considered for

reinstatement.

. . . .

30 . Ms. Seiden received the Termination Letter on

November 3, 2004. She did not contact Ms. Choate abou t the

matter. Although she had been informed on October 22, 2004,

that she wo uld be terminated by Wexford during her telephone

conversation with Ms. Zeigler , November 3, 2004, constitutes the

first official not ice of Wex ford's adverse action which

Ms. Sei den received.

31 . The effective date of Ms. Seiden's termination was

October 25, 2004.

E. The Reason for Ms. Seiden's Termination .

32 . Ms. Seiden was terminated because, consistent with

written Wexford policies which Ms. Seiden had been informed of

on m ore than one occasion, Ms. Seiden had exhausted the maximum

family medical leave and short - term disability leave she was

authorized to take.

33 . Having used the maximu m authorized medical leave,

Ms. Seiden was still unable to perform any of the functions and

duties required of her position. Due to her illness, she was

simply unable to perform any work at all during the period

rel evant to this case, a fact Wexford was aware of. While she

testified at hearing that she had been told by her physician

that sh e would be able to return to work in January 2005, that

testimony constitutes hearsay upon which a finding of fact will

not be made. More significantly, Wexford was never informed by

Ms. Seiden or her physician that she would be able to work.

34 . Wexford 's policies gave Ms. Seiden leave in excess of

the 12 weeks required by the FMLA. Wexford was not required to

do more.

F. Ms. Seiden's Claim of Discrimination .

35 . Ms. Seiden filed her Employment Complaint of

Discrimination with the FCHR on November 30, 2005, or 392 days

after being informed that she had been terminated and 401 days

after her actual October 25, 2004, termination date.

36 . After a Determination: No Cause was issued by the

FCHR, Ms. Seiden filed a Petition for Relief in which she

alleged that Wexford had "violated the Florida Civil Rights Act

of 1992 by terminating [her] based upon a perceived disability."

No allegation of failure to provide an accommodation for her

disability was alleged in the Petition.

G. Summary .

37 . The evidence proved that Ms. Seiden failed to file her

complaint of discrimination with the FCHR within 365 days of the

discriminatory act. She offered no explanation as to why she

did not do so.

38 . Ms. Seiden failed to establish a prima facie case of

unlawful emplo yment discrimination. While she did prove that

she suffered from kidney cancer and that, as a result of her

illness she was unable to perform the duties of her position,

whi ch may constitute a disability, she ultimately failed to

prove that she was a "qua lified individual " with or without an

accommodation. From April 2004 through October 22, 2004, when

she orally informed Wexford that she desired an extension of

leave, her termination from employment on October 25, 2004, and

on November 1, 2004, when her formal request for an extension of

leave was received by Wexford, Ms. Seiden, along with her

physician, reported to Wexford that she was unable to carry out

her employment duties.

39. Ms. Seiden also failed to prove that she was

terminated because of her illness, on the basis of a perceived

disability.

40. Finally, Wexford proved a non - pretextual, non -

discriminatory reason for terminating Ms. Seiden's employment.

CONCLUSIONS OF LAW

A. Jurisdiction .

41 . The Division of Administrative Hearings has

jurisd iction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Statutes (2006 ).

B. Ms. Seiden's Charge .

42 . Ms. Seiden has alleged that Wexford violated Section

760.10, Florida Statutes, p art of the Florida Civil Rights Act

of 1992, as amended , which provide s in pertinent part :

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

Florida courts routinely rely on decisions of the federal courts

construing Title VII of the Civil Rights Act of 1964, codified

at Title 42, Section 2000e et seq. , United States Code, ("Title

VII"), when construing the Florida Civil Rights Act of 1992,

"because the Florida act was patterned after Title VII." Har per

v. Blockbuster Entertainment Corp. , 139 F.3d 1385, 1387 (11th

Cir. 1998), citing, inter alia , Ranger Insurance Co. v. Bal

Harbor Club, Inc. , 549 So. 2d 1005, 1009 (Fla. 1989), and

Florida State University v. Sondel , 685 So. 2d 923, 925, n. 1

(Fla. 1st DCA 1996) .

43 . Ms. Seiden has alleged that Wexford violated Section

760.10, Florida Statutes, by terminating her employment due to a

perceived disability, in particular kidney cancer. Although not

precisely pled, Ms. Seiden has alleged that Wexford termi nated

her employment rather than grant her a reasonable accommodation ,

a requested extension of medical leave.

C. The Burden of Proof .

44 . Ms. Seiden has the burden of proving by a

preponderance of the evidence that s he was the victim o f

employment discr imination, which s he can establish either

through direct evidence of discrimination or through

circumstantial evidence , which is evaluated within the framework

of the burden - shifting analysis first articulated in McDonald

Douglas Corp. v. Green , 411 U.S. 7 92, 802 - 04 (1973). See Logan

v. Denny's Inc. , 259 F.3d 558, 566 - 67, 567, n. 2 ( 11t h Cir.

2006 ).

45 . Under a McDonnell Douglas analysis, a petitioner has

the burden of establishing by a preponderance of the evidence a

prima facie case of unlawful employme nt discrimination. If the

prima facie case is established, the burden then shifts to

employer to rebut this preliminary showing by producing evidence

that the adverse action was taken for some legitimate, non -

discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to petitioner to show that the

employer's articulated reasons for its adverse employment

decision were pretexual. See Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981).

D. Ms. Seiden's Complaint was Not Timely .

46 . Before completing a McDonnell Douglas analysis in this

case, a preliminary matter must be addressed. That matter

involves the question of whether Ms. Seiden complied with

Section 760.11(1), Fl orida Statutes.

47 . Section 760.11(1), Florida Statutes, provides that a

person who claims to have been the victim of an "unlawful

employment practice" must file a charge of discrimination with

the FCHR, the federal Equal Employment Opportunity Commission ,

or "any unit of government of the state which is a fair -

employment - practice agency unde r 29 C.F.R. ss. 1601.70 - 1601.80 "

"within 365 days of the alleged violation," in order for the

person to pursue relief from FCHR.

48 . Before proceeding with a claim of employment

discrimination, an aggrieved party must first exhaust

administrative remedies by filing "a complaint with the FCHR

within 365 days of the alleged violation." Woodham v. Blue

Cross and Blue Shield of Florida, Inc. , 829 So. 2d 891, 894

(Fla. 200 2)(citing Section 760.11(1), Florida Statutes);

Caraballo v. South Stevedoring, Inc. , 932 F. Supp. 1462, 1464

(S.D. Fla. 1996)("Section 760.11 requires that a putative

plaintiff file a charge of discrimination with the FCHR within

365 days of the alleged d iscrimination.").

49 . The issue of whether Ms. Seiden's complaint was timely

filed was raised by Wexford prior to the final hearing of this

case and in Respondent's Pre - Hearing Stipulation. The evidence

proved that she failed to comply with the foregoing requirement.

50 . The evidence in this case proved there are a number of

pot ential dates upon which the 365 - day period should be

considered to have started:

a. The earliest date is May 6, 2004, the date she was

informed that she would be terminated from her employment if she

did not return to work at the end of her leave period ;

b. The next potential dat e is October 22, 2004, when

Ms. Ziegler informed Ms. Seiden that she was going to be

terminated on October 25, 2004, if she failed to report for

work;

c. The next potential date is October 26, 2004, the date

of the Termination Letter;

d. The next potential date is November 1, 2004, the date

she first reported the FCHR that she was terminated; and

e. The last potential date is November 3, 2004, the date

she actually received the Termination Letter.

51 . It is concluded that the most reasonable and

appropriate date is October 25, 2004. Ms. Seiden had been, at a

minimum, told twice that she would be terminated from her

position effective on the last date o f her approved absence if

she did not return to work. The last time she was reminded of

this, was October 22, 2004, when Ms. Zeigler told her she would

be terminated October 25, 2004, and that a letter to that effect

would be sent to her. She was , theref ore, fully aware of the

date of the alleged discriminatory act , the October 25, 2004,

employment termination, and the subsequent receipt of the

Termination Letter was nothing more than a formality as far as

putting her on notice of the event. See Dring v. McDonnell

Douglas Corp. , 58 F. 3d 1323, 1328 (8th Cir. 1995)("the actual

accrual date is simply the date on which the adverse employment

action is communicated to the plaintiff.").

52 . Ms. Seiden was , consequently, required to file her

complaint of discri mination with FCHR 365 days from October 25,

2004, or October 25, 2005. This she failed to do under any view

of the evidence as to when her complaint was filed.

53 . The date she is considered to have file d her complaint

is not November 30, 2005, the date she first filed her formal

charge of discrimination with FCHR; i t is actually November 1,

2005, the date when s h e filed , through counsel, a completed

Technical Assistance Questionnaire for Employment Complaints

(hereinafter referred to as the "FHCR Questi onnaire") . The FHCR

Questionnaire specifically states the following:

* SPECIAL NOTE: If today's date is within 21

days of required final filing date (365

days . . . from date of alleged

discrimination stated in item

2.b.[sic]), I desire to submit this

que stionnaire as a formal complaint and

authorize the Commission to fill out a

formal complaint form and send to

Respondent and provide a copy for me to

sign and return immediately upon

request.

The date of discrimination listed in item 3.b. on the FCHR

Ques tionnaire is November 1, 2004.

54 . While the FCHR Questionnaire was filed on the 365th

day after the date Ms. Seiden reported in the FCHR Questionnaire

as the date of the discriminatory act (November 1, 2004), that

date is incorrect. The date upon which the 365 - day limitation

period began to run was October 25, 2004, the date she was

actually terminated from her employment.

55 . October 25, 2004, is also the date upon which

Ms. Seiden's request for an accommodation is considered to have

been rejected. Sh e had informed Wexford, through Ms. Zeigler,

on October 22, 2004, that she wished to have her leave extended.

Despite that verbal notice to Wexford, her position was

terminated, thus effectively denying her requested

accommodation.

56 . Ms. Seiden's compl aint, having b een filed on

November 1 , 2004 , was not filed within 365 days of the date of

alleged discrimination and her Petition should be dismissed for

that reason.

E. Ms. Seiden Failed to Present a Prima Facie Case .

57 . Even if it is assumed that Ms. Seiden's complaint was

timely made, Ms. Seiden has presented no persuasive direct

evidence that s he was discrimin ated against because of handicap ,

and s he must, therefore, rely on the presumption set forth in

McDonald Douglas to establish a prima facie cas e of

discrimination by show ing that (1) s he has a disability ; (2) s he

was a qualified individual; and (3) she was discriminated

against because of her disability . See Haas v. Kelly Servs.

Inc. , 409 F . 3d 1030, 1035 ( 8th Cir . 2005); Chapman v. AI

Transp. , 2 29 F.3d 1012, 1024 (11th Cir. 2000 ).

Ms. Seiden's "Disability . "

58 . Ms. Seiden has argued that her kidney carcinoma

constitutes a disability. In support of her argument, she has

cited EEOC Questions and Answers About Cancer in the Workplace

and the Ameri cans with Disabilities Act, at

www.eeoc.gov/facts/cancer.html, at page 2 (hereinafter referred

to as the "EEOC Web Site") . Ms. Seiden's reliance upon the

information found at the EEOC Web Site is misplaced for a number

of reasons. First, the EEOC W eb S it e does not constitute

precedent in any form. Secondly , what the web site says about

whether cancer is a disability merely describes the types of

things which must be considered in order to determine whether

cancer is a disability:

2. When is cancer a dis ability under the

ADA?

Cancer is a disability under the ADA when it

or its side effects substantially limit(s)

one or more of a p erson's major life

activities.

Example: Following a lumpectomy and

radiation for aggressive breast

cancer, a computer sales

representative experienced extreme

nausea and c onstant fatigue for six

months. She continued to work during

her treatment, although she frequently

had to come in later in the morning,

work later in the evening to make up

the time, and take breaks when she

e xperienced nausea and vomiting. She

was too exhausted when she came home

to cook, shop, or do household chores

and had to rely almost exclusively on

her husband a nd children to do these

tasks. This individual's cancer is a

disability because it substan tially

limits her ability to care for

herself.

Example: A telephone repairman with

an advanced form of testicular cancer

has chemotherapy and s urgery that

render him sterile. He is an

individual with a disability under the

ADA because he is substantiall y

limited in the major life activity of

reproduction.

Even when the cancer itself does not

substantially limit any major life activity

(such as when it is diagnosed and treated

early), it can lead to the occurrence of

other impairm ents that may be disabil ities.

For example, sometimes depression may

develop as a result of the cancer, the

treatment for it, or both. Where the

condition lasts long enough ( i.e ., for more

than several months) and substantially

limits a major life activity, such as

interacting with others, sleeping, or

eating, it is a disability within the

meaning of the ADA.

Cancer also may be a disability because it

was substantially limiting some time in the

past.

. . . .

Finally, cancer is a disability when it does

not significantly affec t a person's major

life activities, but the employer treats the

individual as if it does.

Example: An individual with a facial

scar from surgery to treat skin cancer

applies to be an airline cu stomer

service representative. The

interviewer refuses to co nsider him

for the position because she fears

that his scar will make customers

uncomfortable. In basing her decision

not to hire on the presumed negative

reactions of customers, the

interviewer is regarding the applicant

as substantially limited in worki ng in

any job that involves interacting with

the public.

Example: After making a job offer, an

employer learns that an applicant's

genetic profile reveals an increased

susceptibility to colon cancer.

Although the applicant does not

currently have and ma y never in fact

develop colon cancer, the employer

withdraws the job offer solely based

on concerns about productivity,

insurance costs, and attendance. The

employer is treating the applicant as

if he has a disability.

Under the ADA, the determination of whether

an individual currently has, has a record

of, or is regarded as having a disability is

made on a case - by - case basis.

Finally, and most importantly, Ms. Seiden failed to offer

sufficient evidence to prove by a preponderance of the evidence

that he r condition comes within the foregoing discussion.

59 . In order for Ms. Seiden to prevail on this issue, she

was required to present adequate proof that she meets the

statutory definition of "disability" under the ADA (and

consequently a "handicap" under the FCRA). She was required to

prove that, as a result of the cancer, she suffered from "a

physical or mental impairment that substantially limits one or

more of the major life activities the individual." 42 U.S.C.

§ 12102(2)(A). Merely proving a physic al illness or a physical

impairment, such as cancer, alone is not enough.

60 . First, Ms. Seiden offered no proof to establish that

Wexford considered her disabled as a result of her illness. The

evidence clearly proved that Ms. Seiden was terminated, not with

regard to what her illness was, but because Wexford's policies

called for her termination when she fail ed to return to work

after a 26 - week absence.

61 . Whether s he also failed to prove that her illness was

a physical or mental impairment that subst antially limited one

or more of her major life activities is a more difficult issue .

The case of Dogmanits v Capital Blue Cross , 413 F. Supp. 2d 452

(E.D. Pa. 2005), is a case almost directly on point with this

one. While t he court in Dogmanits did not r esolve the issue of

whether Plaintiff's cancer constituted a disability, the court

does explain the issue:

To qualify as "disabled " under the ADA, a

claimant must establish that he or she has a

physical or mental impairment that

substantially limits majo r life activities.

Toyota Motor Mfg., Inc. v. Williams, 534

U.S. 184, 195, 151 L. Ed. 2d 615, 122 S. Ct.

681 (2002). EEOC regulations created for

interpreting the ADA define "substantially

limit" as "Unable to perform a major life

activity that the avera ge person in the

general population can perform"; or

"significantly restricted as to the

condition, manner, or duration under which

the average person in the general population

can perform that same major life activity."

Id. At 195 - 196 (quoting 29 C.F.R. §

1630.2(j). ). The nature and severity of the

impairment, the duration or expected

duration of the impairment , and the actual

or expected permanent or long - term impact of

the impairment should also be considered.

Id. At 196 (quoting 29 C.F.R. §

1630.2(j) (2)(i) - (iii) ).

There is little question that the life -

threatening, debilitating effects of cancer

and its subsequent treatment can qualify as

an "impairment" under the ADA. However, the

determination of whether an individual is

"disabled" is not based solely on a name or

the stereotypical nature and character of an

impairment, but rather on the "effect of

that impairment on the life of the

individual." Id. At 198 . . . .

Dogmanits at 458.

62 . While Ms. Seiden offered limited testimony about her

inabi lity to rest comfortably or to sit for long periods, she

offered virtually no details as to the extent of her illness.

For example, the record is silent as to what medical procedures

were performed while she was in the hospital or after. The

record is al so silent as to what side effects she has suffered

from, if any. Finally, s he offered no evidence as to her long -

or short - term prognosis.

63 . The only possible "impairment" Ms. Seiden pro ved was

her inability to work, the same type of impairment suffere d by

the plaintiff in Dogmanits . While it would appear that the

inability to work would constitute an "impairment" which would

lead to the conclusion that an individual has a "disability,"

the failure of the court in Dogmanits to address the issue

causes doubt. Consequently, like the court in Dogmanits , it is

concluded that this issue n eed not be resolved because

Ms. Seiden has failed to carry her burden as to the other prongs

of a prima facie case.

Ms. Seiden's Qualification to Work

64 . Ms. Seiden has argued, in support of the second issue

she was required to establish in order to prove a prima facie

case, that she was a "qualified individual " if she should had

been granted the additional extension of leave she requested.

Again, she relies, not on case law, but the EEOC Web Site. Like

the issue of whether she has proved that she has a disability,

the EEOC Web Site offers little support as to whether she was a

"qualified individual."

65. Again, the Dogmanits case is on point. In Dogmanits

the p laintif f was, like Ms. Seiden , unable to perform the

essential tasks of her job. In addressing the issue, the court

states, in part:

The ADA defines a "qualified individual"

as "an individual with a disability who,

with or without reasonable accommodation,

can perform the essential functions of the

employment position that such individual

holds or desires." 42 U.S.C. § 12111(8) .

Determining whether someone is a qualified

individual is a two - part inquiry. First,

the plaintiff must demonstrate that he or

she possess the skill, experience, or

education necessary to adequately perform

the job. . . . Next, a plaintiff must

establish that he or she can perform the

essential functions of the position, with or

without reasonable accommodation. Id.

"This decision is to be made at the time of

the employment decision." White v. Stroh

Brewery Co., 15 F. Supp. 2d 734, 737 (E.D.

Pa. 1998). . . .

Upon learning of an employee's disability,

an employer has a duty to engage in a good

faith interactive process with the employee

to seek reasonable accommodations.

Williams, 380 F.3d at 761 . . . . In some

circumstances, a leaves [sic] of absence for

medical treatment can also be considered as

a reasonable accommodation. Shannon v. City

of Philadelphia , 1999 U.S. Dist. LE XIS 18089

at *20 - 23 (E.D. Pa. Nov. 23, 1999) (citing

cases from the First, Sixth, and Tenth

Circuits as well as EEOC guidelines for

interpreting the ADA, 29 C.F.R. § 1630.2(o)

App.).

Dogmanits , at 460.

66 . Like the plaintiff in Dogmanits , Ms. Seiden at a ll

times relevant to this matter was unable to return to work. On

this point, both Ms. Seiden and her physician informed Wexford

that she was unable to perform any of the functions of her

employment from the date she originally applied for leave up

until the date she filed her second leave request. She was,

therefore, not a qualified individual unless, as she argues,

Wexford should have granted her request for extended leave as a

reasonable accommodation, an issue which, while not specifically

articulated in any of her pleadings, is a necessary part of the

issue she did raise: was she discriminated against due to her

disability. Proving that issue necessarily requires proof that

she was a "qualified individual " with or without accommodation,

and, therefo re, she effectively placed Wexford on notice that

accommodation was an issue in this case.

67 . Going to the merit of the reasonable accommodation

issue , it is concluded that Ms. Seiden failed to meet her

burden. What she proved was that she requested an open - ended

extension of her approved leave. No projected date for her

return was given by her or her physician. While she testified

that her physician had told her she would be able to return to

work in January 2005, that testimony was hearsay. Addition ally,

even if it has been proved in this case that she could have

returned in January 2005, the ev idence failed to prove that

Ms. Seiden or her physician ever informed Wexford of any

projected return date. Therefore, the accommodation she sought

was to al low her to remain absent from her position until some

unspecified future date, a date beyond the six months she had

already been absent from her employment. Indeed, she asked that

she be allowed further leave without any assurance that she

would ever retu rn.

68. The Dogmanits case addressed this very issue . After

recognizing that a leave of absence may constitute a reasonable

accommodation, the court goes on to state:

However, leave time must enable the

employee to perform his or her essential job

func tions in the near future . Conoshenti v.

Pub. Serv. Elec. & Gas Co., 364 F.3d 135,

151 (3d Cir. 2004). The weight of th4e

autority in the Third Circuit, as well as

other Circuits, clearly establishes that a

leave of absence for an indefinite duration

is n ot a reasonable accommodation. See

e.g., Fogleman v. Greater Hazelton Healht

Alliance, 122 Fed. Appx. 581, 2004 KWL

2965392 at *3 (3d Cir. 2004) (holding that an

indefinite or open - ended leave "does not

constitute a reasonaqble accommodation");

Peter v. Li ncoln Technical Inst., 255 F.

Supp. 2d 417, 437 (E.D. Pa. 2002) (citing to

Fourth, Fifth, Sixth, and Tenth Circuits in

concluding that "an indefinite leave is

inherently unreasonable").

Dogmanits , at 460 - 461.

69 . It is, therefore, concluded that an open - ended

extension of leave does not constitute a reasonable

accommodation. Ms. Seiden was , consequently, not a "qualified

individual" because she failed to prove that she could "perform

the essential functions of the position, with or without

reasonable acc ommodation. "

The Lack of Discrimination

70 . Finally, Ms. Seiden failed to prove the third prong of

a prima facie case : that she was terminated because of a

disability. Instead, the evidence proved that, like any other

employee of Wexford, she was given a maximum of 26 weeks of

medical leave and that, failing to return at the end of the 26

week period , she was terminated. This treatment is spelled out

in Wexford's written policies and applies to all individuals.

Even if she were considered to have a dis ability, she failed to

prove that her disability played any direct part in Wexford's

decision to terminate her.

F. The Ultimate Burden of Proof .

71. Based on the findings of fact herein, Ms. Seiden

failed to meet her burden of establishing a prima facie case of

disability discrimination . Even if she had, Wexford met its

burden of establishing a legitimate, non - discriminatory reason

for termin ating Ms. Seiden's employment : she had used all of

the medical leave allowed to employees pursuant to Wexford's

w ritten policies. Consistent w ith those polices, which, again

apply to all employees, her employment was terminated when she

failed to return to work after she had exhausted her approved

leave.

72 . Finally, t he evidence offered by Ms. Seiden was not

suffi cient to establish that the reasons given by Wexford for

the termination of her employment were pretext . Ms. Seiden ,

therefore, did not prove by a preponderance of the evidence that

Wexford discriminated against her on the basis of a perceived

disability when it terminated her employment .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

filed by Jane Seiden .

DONE AND ENTERED this 18th day of January , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 18th day of January , 2007.

ENDNOTES

1 / The Respondent was originally incorrectly identified as

"Wexford Health S ervices, Inc." The correct corporate name of

the Respondent is "Wexford Health Solutions, Inc." On

September 21, 2006, the parties filed a Joint Stipulation as to

Correct Party agreeing to the correct name of Respondent. The

style of this case has been changed to reflect this stipulation.

2 / All references to the Florida Statutes shall be to the 2004

edition unless otherwise indicated.

COPIES FURNISHED:

D enise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee , Florida 32301

Scott M. Behren, Esquire

Scott M. Behren, P.A.

2853 Executive Park Drive, Suite 103

Weston, Florida 33326

Robert J. Sniffen, Esquire

Sniffen Law Firm, P.A.

211 East Call Street

Tallahassee, 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. An y

exceptions to this recommended order should be filed with the

agency that will issue the final order in this case.