06-005073 Alicia Hays vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, July 25, 2007.

Summary: Petitioner asserted discharge based on disability. Held: Petitioner was not disabled.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALICIA HAYS , )

)

Petitioner , )

)

vs. ) Case No. 06 - 5073

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES AND AGENCY FOR )

PERSONS WITH DISABILITIES )

)

Respondent s . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 8 and 9, 2007, in Chattahoochee,

Florida.

APPEARANCES

For Petitioner: Erika E . Bush, Esquire

Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

For Respondent: Sharon L. Ray, Esquire

Agency for Persons with Disabilities

3700 Williams Drive

Marianna, Florida 32446

STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful employment

practice with regard to Petitioner because of Petitioner 's

asserted disability.

PRELIMINARY STATEMENT

Petitioner Alicia Hays (Ms. Hays) filed an Employment

Charge of Discrimination with the Florida Commission on Human

Relations (Commission) on May 26, 2006. She alleged that the

Florida State Hospital (Hospital), a subordinate unit of the

Department of Children and Famil y S ervices (Department) ,

discriminated against her because of her disability or because

management at the Hospital perceived that she was disabled.

On November 15, 2006, the Commission entered a "Notice of

Determination: No Cause" in response to her Charge o f

Discrimination. On December 11, 2006, Ms. Hays timely filed a

Petition for Relief alleging discrimination based on disability

or perceived disability and alleged the Hospital refused to

provide an accommodation for her disability. The matter was

forwar ded to the Division of Administrative Hearings and filed

on December 13, 2006.

The case was set for hearing on February 28, 2007, in

Chattahoochee, Florida. Pursuant to Petitioner's Consented

Motion to Continue Final Hearing, the hearing was re - scheduled

for May 8 and 9, 2007, and was heard as scheduled.

At the hearing, Ms. Hays testified and presented the

testimony of seven witnesses and offered 19 exhibits into

evidence and all 19 were accepted . Respondent presented the

testimony of three witnesses and offered two exhibits into

evidence and both were accepted .

The three - volume Transcript was filed on May 29, 2007.

After the hearing, counsel for Ms. Hays moved for an enlargement

of time for the submissions of the p roposed r ecommended o rders.

She reque sted a deadline of July 23, 2007. Counsel for the

Department agreed , and the m otion enlarging the time was

granted. Both parties filed their Proposed Recommended Orders

on July 23, 2007.

References to statutes are to Florida Statutes (200 4 )

unless otherw ise noted.

FINDINGS OF FACT

1. At the time of the hearing, Ms. Hays was 36 years of

age and was unemployed. During times pertinent she lived in

Chattahoochee , Florida.

2. The Hospital in Chattahoochee, Florida, is a large

residential mental health f acility operated under the auspices

of the Department. The Hospital also administratively supports

employees of the Agency for Persons with Disabilities. The

Hospital is an employer as that term is defined in

Subsection 760.02(7), and thus subject to the Florida Civil

Rights Act of 1992.

3. Ms. Hays, prior to her employment with the Hospital,

worked for various employers in clerical and secretarial

positions.

4. She began working at the Hospital in 2000. She was

employed in a temporary position i n Unit 25 as a Clerk Typist

Specialist. After two weeks on the job , she was moved to Unit

14 and worked as a Human Service Worker I . This was also a

temporary position. In this latter position , she took care of

elderly residents. She bathed them, fed t hem, and otherwise

helped them with their daily needs. She also escorted them to

off - campus appointments. She received a "Review and Performance

Planning" document signed by her on June 19, 2000, which

indicated that she was performing in a satisfactory manner.

5. She was hired in a full - time position as a Human

Service Worker I in August 2000 in Unit 31/32. In this position

her duties included assisting nurses in the medical unit of the

Hospital. A "Review and Performance Planning" document signed

by Ms. Hays on January 30, 2001, stated that she achieved

standards and included some complimentary remarks.

6. In July 2001 , she was moved to Unit 29 as a Human

Service Worker I. Unit 29 is also known as the Mentally

Retarded Defendant Program ( MRDP ) or MRDP 29 . She received a

"Review and Performance Planning" document that she signed on

March 29, 2002. She received an overall evaluation of "3.81."

A performance rating of " 4 " means that she consistently met and

often exceeded expectations. A "5" is th e highest rating one

can obtain at the Hospital.

7. Her next rating for the period March 2002 until

July 2002, resulted in a grade of "4 ." During the period

July 20, 2002, until March 1, 2003, she did not receive a rating

because she was not working at the Hospital during the

evaluation period. Nevertheless, Anne tte Bates, Ms. Hays'

supervisor, noted that she was a good worker and an asset to

MRDP 29.

8. Ms. Hays was injured on November 27, 2001, while

exiting the "big blue bus." She slipped on wet steps , and her

lower back and neck impacted the steps . A physician, Dr. K. W.

Richardson of Chattahoochee, reported that the injury sustained

was a broken tail bone. He noted this in a "First Report of

Injury or Illness" dated November 28, 2001. Ultimat ely the

diagnosis was changed to two bulging disks. Pain medication was

prescribed , but she never required surgery.

9. Wages paid to her, by the Hospital, $751.63 bi - weekly,

terminated on December 4, 2001. Subsequently, she was paid

workers' compensatio n benefits. S he was informed she could

work , but could not lift more than ten pounds and could not have

contact with patients. She was authorized to work only at a

desk job.

10. Ms. Hays returned to work at the Hospital on

January 18, 2002. She was pla ced on light duty and assigned to

the Medical Records Section at MRDP. She filed documents and

did other tasks as assigned. Her supervisor was a Ms. Lawrence.

11. On July 18, 2002, her light - duty status expired and

because the Hospital could not accom modate her restrictions, she

was sent home and provided workers' compensation benefits. She

continued to receive workers' compensation benefits until

December 2004, when she reached maximum medical improvement.

12. In December 2004, she was contacted by Tracy Wallace

and as a result , Ms. Hays met with Margaret Forehand .

Ms. Forehand, at that time , was the Hospital's Workers'

Compensation Coordinator. She told Ms. Hays that a position was

available in MRDP, Unit 29 , and invited her to apply for it.

13. Ms. Hays completed a State of Florida Employment

Application. She was thereafter employed as a " clerk typist

specialist - F/C" at a salary rate of $754.24, which was, on a

bi - weekly basis, $39.70 less than she was receiving before her

injury. (The desi gnation F/C mean s forensic corrections .)

14. Ms. Hays' Letter of Acceptance, dated December 7,

2004, and accepted by Ms. Hays on December 7, 2004, informed her

that her position was probationary for 12 months. The letter

was written on Department stati onery , but was signed by David

English, Program Operations Administrator, who worked for the

Agency for People with Disabilities. He has the ultimate hiring

authority for the employees of MRDP.

15 . Although termed a "demotion," the lower pay was

actually the result of Hospital policy that was applied to all

employees who returned from an absence subsequent to being

placed on workers' compensation . This job was not preceded by

an interview. The person who became her supervisor , Shellie

Owens, was not inv olved in Ms. Hays' hiring process. Ms. Hays'

ultimate employer was the Department.

16 . Ms. Hays' duties as a "clerk typist specialist - F/C"

included filing, typing, and answering and referring calls. She

filed ward charts, "thinned charts," and ensured that ward

charts and central files were maintained in accordance with

Hospital p olicies, among other tasks. Her duties were set forth

in a "Career Service System Position Description." Her section

was denoted " MRDP ."

1 7 . She was physically able to perfo rm these duties

without an accommodation. Her daily work was not in the least

affected by any injury or disability. The evidence indicates

that both Ms. Hays and Ms. Owens' ultimate employer was the

Agency for Persons with Disabilities. Ms. Owens was aw are that

Ms. Hays had been on workers' compensation for a time.

Ms. Owens knew that Ms. Hays could not lift more than ten pounds

and was aware that the job did not require lifting more than ten

pounds.

18 . No evidence was adduced indicating that Ms. Ow ens

perceived Ms. Hays as disabled.

1 9 . Because entries are frequently entered in patients '

ward charts , they would grow quite large if not managed . It is

necessary for some of the information to permanently remain in

ward chart s , but a substantial porti on may be stored elsewhere .

The portions of the charts that are not required to remain in

the ward are permanently stored in the Medical Records Office.

The process of removing designated matter from the ward charts

is called "thinning."

20 . Thinning wa s an important part of Ms. Hays' job. She

had to " thin " in accordance with a schedule. Some documents

would be left in ward charts for three months, some would be

kept if they were only the most recent of a type, and some were

kept as long as needed. So me were permanent and, therefore,

never removed. It was important also, as part of the process,

that Ms. Hays ensure that documents in ward charts were arranged

in the proper order.

21 . For the rating period December 7, 2004, until March 1,

2005, Ms. Owe ns evaluated Ms. Hays as a "3." In the written

portion of the evaluation , Ms. Owens noted that Ms. Hays had a

pleasant personality and was willing to assist others.

22 . Ms. Owens' job title is Health Information Specialist

Supervisor. In addition to M s. Hays, during times pertinent ,

Ms. Owens supervise d from three to four other people.

23 . On April 19, 2005, approximately six weeks after

receiving her evaluation, Ms. Hays was counseled by Ms. Owens.

Ms. Owens told her she needed to improve in some areas and that

her desk was not tidy . She provided Ms. Hays with a schedule of

daily assignments designed to help Ms. Hays improve.

24 . Ms. Owens memorialized her discussion with Ms. Hays in

a memorandum dated April 19, 2005. I n the memorandum, she note d

that Ms. Hays had been provided with the MRDP Worksite

Orientation Requirement Worksheet on February 25, 2005 , and that

Ms. Hays understood her duties and acknowledged that by signing

it. The memorandum recited that Ms. Hays' work was backed up

and that her desk had food and drink on it that could have been

spilled on documents which were on the desk. The memorandum

also reminded Ms. Hays that she was a probationary employee.

25 . Ms. Owens also gave Ms. Hays a "daily schedule" that

had an effective d ate of April 25, 2005. Ms. Hays and Ms. Owens

both signed it. The "daily schedule" informed Ms. Hays exactly

what she was to do every day of the week. In Ms. Hays ' opinion,

she followed "every word" of the schedule , and Ms. Owens did not

indicate that t here was any problem with her work immediately

subsequent to the implementation of the "daily schedule . "

26 . Ms. Owens conducted an audit of the charts maintained

by Ms. Hays on May 20, 2005, and reduced the results to writing .

The information developed in the audit caused Ms. Owens to

conclude that Ms. Hays ' work was not improving. Ms. Owens

believes that m edical records are extremely important and

keeping them in good order is a necessity . Her audit found that

Ms . Hays was not keeping them in good ord er. She found her work

to be unacceptable.

2 7 . She discussed the matter with Les Smith, the

Residential Services Director of Forensic Corrections . He was

her immediate supervisor. Ms. Owens then talked to Amy Bryant

the Hospital's Employee Relations Counselor with regard to

procedures to be followed in terminating an employee. She

wanted to comply with procedures. Ultimately a meeting occurred

attended by Ms. Owens, Les Smith, David English, and an attorney

for the hospital, Amy Ti llman. During thi s process , the

decision to offer Ms. Hays the opportunity to resign in lieu of

being fired , was finalized.

28 . On May 24, 2005, Ms. Hays was ordered by Ms. Owens to

report to Mr. Smith's office. Mr. Smith is Ms. Owens'

supervisor. When she arrived, she was given the choice of

resigning or being fired. If she had not resigned , she would

have been fired immediately. Ms. Hays was surprised when she

was informed of this choice . S he resigned in a handwritten

letter dated May 24, 2005. This was her last da y of work at the

Hospital. As a probationary employee, she had no right to

appeal what amounted to a discharge .

29. Bernice King worked at the Hospital with Ms. Hays.

She was a Human Service Worker II in MRDP 29. She had an

opportunity to observe Ms. H ays' work. Ms. King used the charts

maintained by Ms. Hays , and she found them to be in good order.

30. Danielle Rene Shaw worked at the Hospital with

Ms. Hays. She was a Human Service Worker II in MRDP 29. She

had an opportunity to observe Ms. Hays' w ork. Ms. Shaw used the

charts maintained by Ms. Hays , and she found them to be in good

order. She thought Ms. Hays was a hard worker.

31. Mark Flodin, M.D., worked as a physician in MRDP 29

when Ms. Hays was working there , and he had an opportunity to

o bserve her performance. He noted that she was a hard worker

and had a professional attitude. He said she maintained the

ward charts in an orderly fashion. He was surprised when she

was terminated.

32 . Ms. Hays' position was filled by Ms. Ryan Smith , wh o

came to the Hospital from another state agency. Sh e was paid at

the rate of $ 828.17 bi - weekly.

3 3 . Ms. Hays applied for over a hundred jobs with the

State of Florida using the state's website, MyFlorida.com. She

also sought employment with 15 private employees. She was

interviewed twice , but received no job offers. She was never

offered an interview at the Hospital. She received unemployment

compensation for about six months after she left the Hospital .

3 4 . Subsequent to her departure from the Hosp ital, and her

inability to secure other employment, she had to have her

depression medicine, Zoloft , increased, but she still feels

depressed and worthless. She is also taking Chlonzpam, an anti -

anxiety drug, and Wellbutrin.

3 5 . Ms. Hays' mother works at the Hospital , as a licensed

practical nurse, and her husband was once employed there also .

Her father is retired from employment at the Hospital, and her

grandmother and grandfather worked there.

CONCLUSIONS OF LAW

3 6 . The Division of Administrative He arings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.11 Fla. Stat.

3 7 . S ubs ection 760.10(1), Florida Statutes, provides as

follows:

§ 760.10. Unlawful employment practices

(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 of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

38 . The Merriam - Webster Online Dictionary defines

"handicap" as: " 2 a . : a disadvantage that makes achievement

unusually difficult ; b . a physical disability . " Accordingly,

"h andicap " and " disability " are words meaning the same thing for

purposes of this case .

39 . Chapter 760, Florida Statutes, is patterned after

Title VII of the Civil Rights Act of 1964, Title 42 U.S.C.

§ 2000e - 2 and the Americans w ith Di sabilities Act of 1990, Title

42 U.S. C . 12101, et seq . (1994) (ADA). Federal employment

discrimination law, including disability discrimination law, can

be used for guidance in construing the provisions of

Chapter 760, Florida Statutes. See Chanda v. Englehard/ICC , 234

F.3d 1219, 1221 (11th C ir. 2000); Fo uraker v. Publix

Supermarket, I nc. , 959 F. Supp. 1504 (M.D. Florida 1997). See

also Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st

DCA 1994); Florida Dept. of Community Affairs v. Bryant , 586 So.

2d 1205, 1209 (Fla. 1st DCA 1991).

40 . No direct evidence of discriminatio n based on

disability was adduced during the hearing.

41 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 03 (1973), the Supreme Court articulated a burden of proof

scheme for cases involving allegations of discrimination under

Title VII, where th e plaintiff relies upon circumstantial

evidence. The McDonnell Douglas decision is persuasive in this

case, as is St. Mary’s Honor Center v. Hicks , 509 U.S. 502,

506 - 07 (1993), in which the Court reiterated and refined the

McDonnell Douglas analysis.

42 . Pursuant to this analysis, the complainant has the

initial burden of establishing by a preponderance of the

evidence a prima facie case of unlawful discrimination. Failure

to establish a prima facie case of discrimination ends the

inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n. 6 (Fla.

1st DCA), aff ' d , 679 So. 2d 1183 (1996) (citing Arnold v. Burger

Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

43 . If the plaintiff succeeds in making a prima facie

case, then the burden shifts to the Hosp ital to articulate some

legitimate, nondiscriminatory reason for its conduct. If the

defendant carries this burden of rebutting the plaintiff ' s prima

facie case, then the plaintiff must demonstrate that the

proffered reason was not the true reason , but me rely a pretext

for discrimination. McDonnell Douglas , 411 U.S. at 802 - 03;

Hicks , 509 U.S. at 506 - 07.

44 . In Hicks , the Court stressed that even if the trier -

of - fact were to reject as incredible the reason put forward by

the defendant in justification fo r its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. " It is not

enough, in other words, to disbelieve the emplo yer; the fact

finder must believe the plaintiff ' s explanation of intentional

discrimination. " Id. at 519.

45 . In order to establish a prima facie case of

discrimination based upon disability , Ms. Hays must show :

(1) that she is a handicapped individua l under the act; (2) that

she is otherwise qualified for the position sought or hired; and

(3) that she was terminated solely by reason of her handicap .

See Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla. 1st DCA

1994).

46 . Ms. Hays must as a thresho ld prove that she is

disabled. To be disabled means that one's physical limitation

"substantially limits major life activities . " The term

"substantially limits" means, among other thing, "[u]nable to

perform a major life activity that the average person in the

general population can perform" ; or "[s]ignificantly restricted

as to the condition, manner, or duration under which the average

person in the general population can perform that same major

life activity . " ( citation omitted ) Finally, "[m]ajor [l]i fe

[a]ctivities means functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." ( c itation omitted) See

Sutton v. United Airlines , 527 U. S. 527 (1999).

47. There was no eviden ce that Ms. Hays could not perform

manual tasks, walk, see, hear, or breath e . For that matter

there was no testimony that she could not "thin" files. To the

contrary, there was ample evidence, including testimony by

Ms. Hays, that she had no problem "thi nning" files.

Consequently, she was not disabled or perceived to be disabled

and , therefore , did not prove a prima facie case.

48. Even if one assumes arguendo that she proved a prima

facie case, the Hospital offered acceptable nondiscriminatory

reasons for discharging her. Ms. Owens considered her work

unacceptable. Ms. Hays did not offer any evidence demonstrating

that Ms. Owens' actions were a pretext for underlying

discrimination.

49. An " employer may fire an employee for a good reason, a

bad rea son, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason." Abel v. Dubberly , 210 F.3d 1334, 1339 (11th Cir.

2000). So whether it was good managerial practice to discharge

Ms. Hays is of no consequence. Likewise , it is of no

consequence that fellow employees had an opinion of Ms. Hays'

work that differed from that of Ms. Owens.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Comm ission on Human Relations

dismiss the Petition of Alicia Hays.

DONE AND ENTER ED this 25th day of Ju ly , 2007 , in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hear ings

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 25th day of Ju ly , 2007 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carolyn Dudley , Assistant Staff Director

Department of Children and Family Services

1317 Winewood Bouleva rd

Building 1, Room 101F

Tallahassee, Florida 32399 - 0700

Sharon L. Ray, Esquire

Agency for Persons with Disabilities

3700 Williams Drive

Marianna, Florida 32446

Erika E. Bush, Esquire

Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

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.