07-005031 Daniel W. Mcmahon vs. Naples Hma Status: Closed Recommended Order on Tuesday, March 4, 2008.

Summary: Petitioner had history of confrontational and litigious behavior towards hospital staff. He failed to prove that he has a disability or that hospital discriminated against him. The public accomodation discrimination complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL W. MCMAHON , )

)

Petitioner , )

)

vs. ) Case No. 07 - 5031

)

NAPLES HMA , )

)

Respondent . )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on February 1,

2008, by video teleconference between sites in Ft. Myers and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Daniel W. McMahon, pro se

2311 Woodland Estates Road

N aples, Florida 34117

For Respondent: Joseph D. Stewart, Esquire

Joseph D. Stewart, J.D., C.P.A.

2671 Airport Road South, Suite 302

Naples, Florida 34112

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner in connection with his use or enjoyment of a place of

public accommodation in violation of Section 760.08, Florida

Statutes.

PRELIMINARY STATEMENT

On April 18, 2007, Petitioner filed a Public Accommodation

Complaint of Discrimination with the Florida Commiss ion on Human

Relations (Commission). On October 15, 2007, the Commission

issued a " no cause " determination on the complaint. On

October 29, 2007, Petitioner timely filed a Petition for Relief

with the Commission.

On October 30, 2007, the Commission refer red the petition

to the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge to conduct a hearing

pursuant to Sections 120.569 and 120.57(1), Florida Statutes . 1/

The referral was received by DOAH on October 31, 2007 .

The final hearing was scheduled for and held on February 1,

2008. At the hearing, Petitioner testified in his own behalf

and presented the testimony of Joseph Stewart; and Respondent

presented the testimony of Dawn Bencomo. The following exhibits

were received into evidence: Petitioner ' s Exhibits A through L

and Respondent ' s Exhibits 1, 2, 3, 4 - 1 through 4 - 5, 4 - 9, 4 - 10,

4 - 12 through 4 - 19, 4 - 21, 4 - 23 through , 4 - 25, 5, and 6.

The one - volume Transcript of the final hearing was filed on

February 12, 2008. The parties were given 10 days from that

date to file proposed recommended orders (PROs). Petitioner

timely filed a letter summarizing his position on February 20,

2008. Respondent filed a PRO on February 25, 2008. The

parties ' post - hearing filings hav e been given due consideration.

FINDINGS OF FACT

1. Petitioner is 36 years old. He is not employed.

2. Petitioner claims to have a " mental disability " that

entitles him to accommodations under the Americans with

Disabilities Act (ADA).

3. In May 1996 , the U.S. Social Security Administration

(SSA) found Petitioner to be disabled for purposes of receiving

Social Security disability benefits because he had a

" personality disorder " that caused " deeply ingrained,

maladaptive patterns of behavior associated with persistent

disturbance of mood. "

4. In June 2005, the SSA found that Petitioner ' s

disability was " continuing " and that he remained eligible for

Social Security disability benefits.

5. The SSA disability determination was based upon

Petitioner ' s personality disorder, not a specific " mental

disability. " The 1996 SSA determination did not find that

Petitioner had " organic mental disorders " or " schizophrenic,

paranoid, and other psychotic disorders. "

6. The most current medical information present ed by

Petitioner is an October 2003 report by Dr. Alejandro Perez -

Trepachio (Dr. Perez), an internal medicine specialist. The

report notes that Petitioner " has a history of personality

disorder [and has] been diagnosed with passive aggressive and

obsessiv e compulsive personalities, " but it did not diagnose

Petitioner with those conditions. The report stated that

Petitioner " needs the care of [a] psychiatrist " and that

Dr. Perez would refer Petitioner to a local psychiatrist ,

because psychiatric issues wer e beyond his expertise.

7. Petitioner presented no credible evidence that his

" personality disorder " impacts his major life activities or his

activities of daily living.

8. Petitioner claims that he has difficulty communicating,

particularly when he is under stress. However, he had no

problems communicating during the course of the final hearing.

9. In 2005 and 2006, Petitioner filed a number of suits

against the Cleveland Clinic and various physicians affiliated

with the hospital. The suits claimed that the hospital and

physicians were discriminating against Petitioner based upon his

disability in violation of the ADA.

10. The federal judge in one of the suits -- No. 2:05 - cv - 90 -

FtM - 33SPC -- denied a motion for summary judgment filed by the

Cleveland Cl inic because the judge determined that there was a

material issue of fact as to whether or not Petitioner had an

ADA disability.

11. The judge did not determine that Petitioner did, in

fact, have an ADA disability. Indeed, the judge noted that

Petitione r testified during his deposition that he was able to

perform a number of activities of daily living, including

managing his financial affairs, using a computer, driving a

vehicle without limitation from place to place, maintaining

daily hygiene, and gener ally taking care of himself. The judge

also observed that Petitioner was able to effectively

communicate his answers during his deposition in that case,

which is consistent with the undersigned ' s observation of

Petitioner at the final hearing in this case .

12. The Cleveland Clinic hospital in Naples was purchased

by Respondent in May 2006. The " closing agreement " between the

Cleveland Clinic and Respondent made the Cleveland Clinic

responsible for defending the ADA suit brought by Petitioner.

13. All o f Petitioner ' s suits against the Cleveland

Clinic, including the ADA suit referenced above, were resolved

through settlement in September 2006.

14. Petitioner testified that he was initially told by

Respondent ' s representatives that he was not welcome as a

patient at the hospital, but that he was subsequently told that

he would be permitted to make appointments with the hospital and

the physicians affiliated with the hospital.

15. At the time, there were two ways that a patient could

make an appointment w ith a physician affiliated with the

hospital. The patient could call the physician ' s office

directly and make an appointment or the patient could call the

hospital ' s central scheduling office and make the appointment

with the physician through that office .

16. At some point after Respondent acquired the hospital

from the Cleveland Clinic , 2/ Petitioner attempted to make an

appointment with Dr. Perez. Dr. Perez had previously seen

Petitioner in October 2003, and according to Petitioner,

Dr. Perez had never formally terminated their doctor - patient

relationship.

17. Petitioner called Dr. Perez ' s office and spoke to his

secretary, Dawn Bencomo. He asked Ms. Bencomo whether there was

any reason that Dr. Perez would not give him an appointment.

Ms. Bencomo fo und this question strange, so she put Petitioner

on hold and spoke with Dr. Perez.

18. Dr. Perez told Ms. Bencomo that he would not see

Petitioner because of his confrontational nature with other

physicians and his threats to sue other physicians.

19. Ms . Bencomo relayed this information to Petitioner,

who became upset and threatened to sue Dr. Perez. There is no

evidence that he followed through with that threat.

20. Petitioner then called the hospital ' s central

scheduling office and made an appointmen t with Dr. Perez, even

though he had previously been told by Dr. Perez ' s office that

Dr. Perez was unwilling to see him.

21. When Dr. Perez noticed that Petitioner was on his

schedule, he directed Ms. Bencomo to call Petitioner and inform

him that the app ointment was cancelled and would not be

rescheduled. Ms. Bencomo left Petitioner a message to that

effect on his voice mail.

22. There is no credible evidence that Respondent played

any role in the cancellation of Petitioner ' s appointment with

Dr. Perez. There is also no credible evidence that Petitioner ' s

" disability " played any role in Dr. Perez ' s decision to not see

Petitioner.

23. In September 2006, Respondent ' s attorney sent a letter

to Petitioner stating that Respondent d id not wish to treat

Petit ioner at its facility and that Respondent would be opposed

to Petitioner having surgery at its facility.

24. The hospital ' s desire not to have further dealings

with Petitioner is based primarily upon his harassing,

confrontational, and litigious behavior towards the hospital and

its staff when the facility was owned by the Cleveland Clinic.

However, many of the same staff members continued to work at the

hospital when it was acquired by Respondent.

25. There is ample evidence in the record to support

Res pondent ' s characterization of Petitioner ' s behavior as

harassing, confrontational, and litigious. For example, he left

several harassing and threatening phone messages with

Respondent ' s attorney, and he has threatened to " file many

actions against [Respon dent] in federal court " for denying his

civil rights. Additionally, he has been escorted out of the Lee

County Courthouse by law enforcement officers on at least two

occasions because of his disruptive behavior; he was rude and

confrontational in his deal ings with the ADA administrator for

the Circuit Court in Lee County; and he has sued the Collier

County Sheriff ' s Office in federal court in regard to their

dealings with him.

26. Petitioner presented no evidence that similarly -

situated persons outside of his protected class -- i.e. , persons

without his claimed " mental disability " and with a similar

history of harassing, confrontational, and litigious behavior

towards the hospital -- were treated more favorably by Respondent.

27. The complaint filed by Petiti oner with the Commission

that gave rise to this proceeding (No. 200701192) focuses on

Petitioner ' s inability to schedule appointments and be treated

at Respondent ' s facility. The complaint does not mention an

inability to use or enjoy any other aspect of Respondent ' s

facility, such as the coffee shop in the hospital that

Petitioner mentioned in his testimony.

28. Petitioner filed virtually identical complaints

against three other corporate entities -- Health Management

Associates (No. 200601498); Collier HM A Physician Management,

Inc. (No. 200701724); and Collier HMA Facility Based Physician

Management (No. 200701744) -- because he did not know which

corporate entity his complaint should be brought against. The

Commission dismissed each of those complaints, a nd Petitioner

did not request a hearing to contest the dismissal.

29. In August 2007, Respondent filed suit against

Petitioner in the Circuit Court for Lee County seeking to enjoin

Petitioner from (1) contacting or placing telephone calls to the

hospital " unless for emergency medical needs, " and (2) filing

further administrative or judicial actions against Respondent

without an attorney. The suit, Case No. 07 - 2775 - CA, does not

contend that Petitioner has a disability that makes him

incapable of representi ng himself, as Petitioner seems to

believe. Instead, the suit contends that Petitioner should not

be allowed to file additional suits against Respondent without

an attorney because his numerous prior suits " constituted abuse

of process " and " created frivo lous and unnecessary impediments

to the administration of justice and served no valid justiciable

purpose. "

30. On November 9, 2007, in response to the injunction

suit filed by Respondent, Petitioner filed suit against

Respondent in federal court claiming that Respondent is

violating his rights under the ADA. On December 26, 2007, a

federal magistrate judge recommended that the suit be dismissed

because the federal court lacks subject matter jurisdiction over

the suit.

31. On January 14, 2008, Petitioner filed a Notice of

Removal in the injunction suit brought by Respondent seeking to

have the case removed to the federal court. The case was still

pending as of the date of the final hearing.

32. Petitioner is requesting that he be allowed to use

Responden t ' s facility and that Respondent be required to provide

him an accommodation so that he can do so. It is not entirely

clear what accommodation Petitioner is seeking.

33. The accommodation requested by Petitioner from the

Circuit Court for Lee County was " someone to speak for him "

because he " had an inability to seem polite " ; because people

" misinterpreted the tone of his voice and his inflection " ; and

because people " misinterpreted his communications. " That

request was denied.

CONCLUSIONS OF LAW

34. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 760.11(7), Florida Statutes.

35. Petitioner claims that Respondent discriminated

against him based upon his disability and in retaliati on for his

filing of the prior discrimination complaints. Petitioner has

the burden of proof on these claims, as discussed below.

36. Section 760.08, Florida Statutes, provides:

All persons shall be entitled to the full

and equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation, as defined in this chapter,

without discrimination or segregation on the

ground of . . . handicap . . . .

37. Section 760.08, Florida Statutes, does not prohibit

public accommodation discrimination in retaliation for prior

complaints. It only prohibits such discrimination based upon

" race, color, national origin, sex, handicap, familial status,

or religion. "

38. There are other statutes that prohibit ret aliation.

See , e.g. , §§ 760.11(7) (prohibiting employment discrimination

in retaliation for prior complaints) and 760.37, Fla. Stat.

(prohibiting housing discrimination in retaliation for prior

complaints). However, those statutes do not apply in the

con text of alleged public accommodation discrimination.

39. The ADA prohibits discrimination in retaliation for

complaints of public accommodation discrimination. See 42

U.S.C. § 12203(a). However, the Commission has no authority to

enforce the ADA.

40. To prevail on his public accommodation discrimination

claim, Petitioner must establish that (1) he is a member of a

protected class ( i.e. , handicapped); (2) that he attempted to

contract for services and to afford himself of the full benefits

and enjoyment of a public accommodation 3/ ; ( 3) that he was denied

the right to contract for those services and, thus, was denied

those benefits and enjoyments; and (4) that similarly - situated

persons who are not members of his protected class received full

benefits or enj oyment, or were treated better. See Afkhami v.

Carnival Corp. , 305 F. Supp. 2d 1308, 1322 (S.D. Fla. 2004);

Henderson v. Days Inn I - 75 , Case No. 07 - 2847, 2007 Fla. Div.

Adm. Hear. LEXIS 535, at ¶ 19 (DOAH Sep. 27, 2007; FCHR Nov. 7,

2007).

41. If Petition er establishes this prima facie case, the

burden shifts to Respondent to proffer a legitimate non -

discriminatory reason for its disparate treatment of Petitioner.

See Afkhami , 305 F. Supp. 2d at 1321 (applying the burden -

shifting framework from McDonnell Douglass Corp. v. Green , 411

U.S. 792 (1973), in a case involving a public accommodation

discrimination claim). If Petitioner does not establish a prima

facie case, then the burden of production never shifts to

Respondent.

42. If Respondent meets its burd en of production, the

burden shifts back to Petitioner to prove by a preponderance of

the evidence that the reason proffered by Respondent is false

and that it is merely a pretext for discrimination. See

Afkhami , 305 F. Supp. 2d at 1321 (citing cases).

4 3. There is no statutory definition for the term

" handicap " used in Section 760.08, Florida Statutes, and the

Commission has not adopted a rule to define the term.

44. The courts have construed the term " handicap " in

Chapter 760, Florida Statutes, in acco rdance with the

definitions of " disability " in the federal Rehabilitation Act

and the ADA. See , e.g. , St. John ' s School District v. O ' Brien ,

2007 Fla. App. LEXIS 20540, at *9 (Fla. 5th DCA Dec. 28, 2007);

Greene v. Seminole Electric Cooperative, Inc. , 701 So. 2d 646,

647 (Fla. 5th DCA 1997); Brand v. Florida Power Corp. , 633

So. 2d 504, 510 , n. 10 (Fla. 1st DCA 1994).

45. Thus, in order to be entitled to the protections of

Section 760.08, Florida Statutes, based upon a handicap,

Petitioner must establish that he has a physical or mental

impairment that substantially limits one or more major life

activities, a record of such impairment, or that he is perceived

as having such an impairment. See St. John ' s School District ,

2007 Fla. App. LEXIS 20540, at **11 - 12.

46. As explained in St. John ' s School District :

A plaintiff is " perceived as " being disabled

if he meets one of three conditions: (1) he

has a physical impairment that does not

substantially limit major life activities

but is treated by an employer as

constituting such a limitation; (2) has a

physical or mental impairment that

substantially limits major life activities

only as a result of the attitude of an

employer toward such impairment; or (3) has

no physical or mental impairment but is

treated by an employer as having such an

impairment. For a plaintiff to prevail

under this theory, he must show two things:

(1) that the perceived disability involves a

major life activity; and (2) that the

perceived disability is " substantially

limiting " and signi ficant. To fall within

the " perceived as " disability, it is

necessary that an employer entertain

misperceptions. It must believe the

individual has a substantially limiting

impairment that does not exist or that there

is a substantially limiting impairme nt when,

in fact, the impairment is not so limiting.

A substantially limiting impairment must

preclude that individual from more than one

type of job, a specialized job, or a

particular job of choice.

2007 Fla. App. LEXIS 20540, at **11 - 12 (citations omit ted).

47. Petitioner failed to meet his burden of proof on this

issue. He presented no current or credible medical evidence

concerning his condition; he did not establish that the

" personality disorder " referenced in the SSA determination and

the 2003 re port from Dr. Perez limits his activities of daily

living or any major life activity; and he did not establish that

he is perceived as disabled by Respondent.

48. In reaching this conclusion, the undersigned did not

overlook the Order entered in Petitioner ' s 2005 federal suit

against the Cleveland Clinic. That Order did not determine one

way or the other whether Petitioner has an ADA disability. The

federal judge simply determined that there was a material issue

of fact regarding Petitioner ' s disability, which precluded

summary judgment in favor of the Cleveland Clinic. If that case

had proceeded to trial, Petitioner would have had the burden to

prove that his condition constitutes a disability under the ADA

based upon the standards described above.

49. The undersigned also did not overlook the SSA ' s

determination that Petitioner is disabled. However, the case

law is clear that such a determination is not a " dispositive

factor " in determining whether Petitioner has a disability

covered by the ADA because the legal standards are not the same.

See , e.g. , Cleveland v. Policy Management Systems Corp. ,

526 U.S. 795, 802 (1999); Couts v. Beaulieu Group, LLC , 288

F. Supp. 2d 1292, 1304 (N.D. Ga. 2003) ( " An individual may

receive disability benefits from the [SS A] and yet not have an

impairment that substantially limits one or more major life

activities for purposes of the ADA. " ).

50. Petitioner ' s claim would have failed even if he had

established that he had a handicap for purposes of Section

760.08, Florida St atutes.

51. First, the evidence was not persuasive that Petitioner

has been denied services by Respondent. For example, there is

no persuasive evidence that Respondent played any role in the

cancellation of Petitioner ' s appointment with Dr. Perez or

anot her doctor, and it is undisputed that Petitioner was able to

use Respondent ' s central scheduling office to make the

appointment with Dr. Perez.

52. Second, even if it was determined that the September

2006 letter from Respondent ' s attorney was tantamount to a

denial of the hospital ' s services to Petitioner, there is no

evidence that any similarly - situated person outside Petitioner ' s

protected class was treated differently by Respondent.

53. Third, even if it was determined that Petitioner had

an ADA disab ility and was treated differently than a similarly -

situated non - disabled person, Respondent produced sufficient

evidence to demonstrate that its desire to have no further

dealings with Petitioner was based upon a legitimate, non -

discriminatory reason ( e.g. , his history of harassing,

confrontational, and litigious behavior), and Petitioner failed

to prove that reason was a false or merely a pretext for

unlawful discrimination.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Commission issue a final order

dismissing the Petition for Relief with prejudice.

DONE AND ENT ERED this 4th day of March , 2008 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Admi nistrative Law Judge

Division of Administrative Hearings

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 Ad ministrative Hearings

this 4th day of March , 2008 .

ENDNOTES

1/ All statutory references in this Recommended Order are to

the 2007 version of the Florida Statutes.

2/ Petitioner ' s testimony did not identify exactly when these

events occurred, but acco rding to the testimony of Dawn Bencomo,

the events occurred " not long after we became HMA. "

3/ Respondent did not argue that its facility is not a public

accommodation, even though hospitals are not expressly included

in the definition of " public accommo dations " in Section

760.02(11), Florida Statutes. See , e.g. , Sheely v. MRI

Radiology Network, P.A. , 505 F.3d 1173, 1204 - 05 (11th Cir. 2007)

( " § 760.02(11) ' s definition of ' public accommodations ' does not

include medical facilities " ); Foster v. Howard Univ ersity

Hospital , 2006 U.S. Dist. LEXIS 74512, at ** 5 - 6 (Dist Ct. DC

Oct 12, 2006) (concluding that Title II of the Civil Rights Act

of 1964, which is virtually identical to Section 760.02(11),

Florida Statutes, does not apply to hospitals because Title II ' s

definition of " place of public accommodation " does not mention

hospitals); Verhagen v. Olarte , 1989 U.S. Dist. LEXIS 13881, *4

(S.D.N.Y. 1989) (same). But cf. 42 U.S.C. § 12181(7)(F)

(including hospitals in the definition of " public accommodation "

for purposes of Title III of the ADA).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard , General Counsel

Florida Commission on Human Relations

2 009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Daniel W. McMahon

2311 Woodland Estates Road

Naples, Florida 34117

Joseph D. Stewart, Esquire

Joseph D. Stewart, J.D., C.P.A.

2671 Airport Road South, Suite 302

Naples, Florida 34112

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 thi s case.