08-001927 Sarah L. Smith vs. Cavalier Telephone And Tv Status: Closed Recommended Order on Monday, July 28, 2008.

Summary: Petitioner claimed she was discharged because of her disability. Held: Petitioner was not disabled as defined in the Americans with Disabilities Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH L. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 08-1927

)

CAVALIER TELEPHONE AND TV, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on June 10, 2008, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Sarah L. Smith, pro se

513 North Reus Street

Pensacola, Florida 32501

For Respondent: Sharon Glover, Esquire

2134 West Laburnum

Richmond, Virginia 23227

Lori Y. Baggett, Esquire Carlton Fields

4221 West Bay Scout Boulevard

Post Office Box 3239

Tampa, Florida 33607

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice.

PRELIMINARY STATEMENT

Petitioner Sarah L. Smith (Ms. Smith) filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (Commission) on September 17, 2007. The Complaint

alleged that Respondent Cavalier Telephone and TV (Cavalier)

discriminated against her based on race and disability/handicap.

After investigation the Commission issued a "Determination: No

Cause."

Ms. Smith thereafter, on April 11, 2008, filed a Petition

for Relief with the Commission. It was forwarded to the

Division of Administrative Hearings and filed on April 16, 2008.

It was set for hearing in Pensacola, Florida, on June 10, 2008,

and heard as scheduled.

During the hearing, Ms. Smith abandoned her claim of racial

discrimination. The hearing then focused on Ms. Smith's claim

that she was denied reasonable accommodations and was terminated

due to her disability in violation of Chapter 760 of the Florida

Civil Rights Act and the Americans with Disabilities Act.

At the hearing, Ms. Smith presented the testimony of three

witnesses. Cavalier also presented the testimony of three

witnesses. Three joint exhibits were received into evidence. A

transcript was filed July 3, 2008.

Cavalier, subsequent to being granted an extension, timely

submitted a Proposed Recommended Order that was considered in

the preparation of this Recommended Order. Ms. Smith made no

post-hearing submissions.

References to statutes are to Florida Statutes (2007)

unless otherwise noted.

FINDINGS OF FACT

1. Cavalier is in the business of providing various types

of telephone services including landline communications, DSL,

and Internet TV. They have as many as 150 employees in the

Pensacola area and have offices in other locations. Cavalier

acquired Talk America, Inc., a predecessor corporation, on

April 20, 2006.

2. Ms. Smith began working for Cavalier as a sales

representative in December of 2006. As a sales representative

for Cavalier, Ms. Smith called potential customers and attempted

to sell them services and products provided by Cavalier. She

was very successful at this work and was considered to be an

excellent employee. Her sales were high, and she was awarded

bonuses.

3. On April 19, 2007, Ms. Smith suffered a mini-stroke and

was absent from her work until May 2, 2007. At that time, she

assumed that she had recovered and reported for work. Her

supervisor, Floor Manager Cassandra Pressley, and fellow

employees were happy to see her return. To celebrate her

return, Ms. Pressley and other employees contributed money that

was used to buy flowers for Ms. Smith.

4. As the day progressed, Ms. Pressley noticed Ms. Smith

slumped over in her chair and was concerned. Ms. Pressley

offered her extra breaks, but Ms. Smith refused her entreaties.

Eventually, Ms. Smith became clearly unwell, and with

Ms. Pressley's encouragement, she departed with a co-worker who

followed her home.

5. On May 2, 2007, Ms. Smith learned from her doctor that

she would have to take, or continue with, medical leave. When

Ms. Pressley became aware of this, she caused Ms. Smith to

communicate with Suzanne Altare, Cavalier's director of human

relations for the southeast area. Ms. Altare explained

Cavalier's company leave policy.

6. Ms. Altare informed Ms. Smith that she was ineligible

for leave pursuant to the Family Medical Leave Act because she

had been employed with the company for less than a year.

Nevertheless, Ms. Altare told Ms. Smith that she could have

eight weeks of unpaid discretionary leave. This leave became

effective May 2, 2007. Ms. Altare's actions complied with

Cavalier's Employee Handbook. The Employee Handbook requires

equal treatment of all employees.

7. Subsequent to May 2, 2007, Ms. Pressley and Ms. Altare

both checked in with Ms. Smith by telephone on more than one

occasion to see how she was doing and inquired if her doctor was

going to provide her with a release so that she might return to

work at the end of the eight-week leave.

8. On or about July 5, 2007, in the ninth week of her

absence, both Ms. Pressley and Ms. Altare communicated with

Ms. Smith by telephone. Ms. Smith informed them that her doctor

had not released her for return to employment. Since she could

not provide an estimated time of return, she was terminated.

9. Because Ms. Smith was an especially valued employee,

Ms. Altare informed her that she would process her termination

as voluntary so that when she was physically able, she could

return to work at Cavalier. This coincided with what Cavalier

had done with other employees who had to stop working

temporarily due to an illness. At least one of those had in

fact returned upon receiving a release from her doctor.

10. No evidence was adduced by any witness that Ms. Smith

either complained of discrimination or requested an

accommodation.

11. In September 2007, Ms. Pressley was asked by a person

identified as Ms. Smith's husband to help Ms. Smith at a check-

cashing facility that was located close to the Cavalier

workplace. Ms. Pressley went with him to the check-cashing

facility. Ms. Smith approached Ms. Pressley and hugged her.

Ms. Pressley inquired as to when Ms. Smith would return. She

told Ms. Pressley that she had not been released by her doctor.

12. Ms. Smith testified that she received "disability

payments" until December 16, 2007, when her doctor informed her

that she could go back to work. Ms. Smith testified, "I figured

they would rehire me, anyway, because of my good sales, yes,

sir." However, at least up until the time of the hearing,

Ms. Smith had not asked to return to her job.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

14. Sections 760.01-760.11 and 509.092, Florida Statutes,

are known as the "Florida Civil Rights Act of 1992."

§ 760.01(1), Fla. Stat.

15. Cavalier is an "employer" pursuant to Subsection

760.02(7), Florida Statutes.

16. Pursuant to Subsection 760.10(1)(a), Florida Statutes,

it is an unlawful employment practice for an employer 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 "handicap." Handicap is a synonym

for disability.

17. Federal employment discrimination law, including

disability discrimination law, can be used for guidance in

construing the provisions of Chapter 760, Florida Statutes.

Chanda v. Englehard/ICC , 234 F.3d 1219, 1221 (11th Cir. 2000),

and Fouraker v. Publix Supermarket, Inc. , 959 F. Supp. 1504,

1510-11 (M.D. Florida 1997).

18. A petitioner in a disability discrimination case has

the initial burden of proving a prima facie case of

discrimination under the ADA by demonstrating that: (1) she has

a disability under the Florida Civil Rights Act and the ADA; (2)

that she is a qualified individual, which means that she is able

to perform the essential functions of the employment position

with or without accommodation; and, (3) that the respondent

unlawfully discriminated against her because of her disability.

See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).

19. The Americans with Disabilities Act, identifies three

types of "disability" that place an individual within the

statute's protections: "The term 'disability' means, with

respect to an individual: (A) a physical or mental impairment

that substantially limits one or more of the major life

activities of such individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment."

42 U.S.C. § 12102(2).

20. Factors to consider when determining whether an

individual is "substantially limited" include: (1) the nature

and severity of the impairment; (2) the duration or expected

duration of the impairment; and (3) the permanent or long-term

impact, or the expected permanent or long-term impact of or

resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).

21. An impairment's minor interference in major life

activities does not qualify as a disability . See Toyota Motor

Mfg., Ky., Inc. v. Williams , 534 U.S. 184 (2002) and Kelly v.

Drexel University , 94 F.3d 102 (C.A. 3d 1996).

22. Ms. Smith offered no proof that she was disabled. To

the contrary, the evidence demonstrated clearly that she was

able to conduct major life activities without any accommodation.

The evidence demonstrated that she was ill and that eventually

she recovered. Her medical condition was not permanent.

Accordingly, it is found as a matter of law that she was not

disabled.

23. Ms. Smith was unable to satisfy the second prong of

the test for disability discrimination because she did not

demonstrate that she was a qualified individual able to perform

the essential functions of the position with or without an

accommodation. 42 U.S.C § 12111(8). Attendance was an

essential function of the position, and Ms. Smith not only was

unable to work, she could not provide a definitive date of

return.

24. Even if one assumes Ms. Smith proved she had an ADA-

covered disability, there was no evidence that she was treated

differently from her co-workers. She was not "regarded as

disabled." Moreover, Ms. Smith never requested accommodations

for herself.

25. With regard to the third prong, Ms. Smith did not

experience an adverse employment decision. She was treated with

great respect and courtesy by Cavalier. She was given leave

that Cavalier was not required to give. She was advised many

times that she could return when she was physically able.

26. Because Ms. Smith failed to prove a prima facie case,

Cavalier was under no obligation to prove a nondiscriminatory

reason for Ms. Smith's departure. Nevertheless, Cavalier did

prove that Ms. Smith was treated like other employees who

suffered illnesses and would have welcomed her back had she been

released by her physician and requested reinstatement. In

summary, Petitioner failed to establish a prima facie case of

discrimination based upon disability . Consequently, the charges

against Respondent should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

dismiss the Petition for Relief filed by Sarah L. Smith.

DONE AND ENTERED this 28th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of July, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lori Y. Baggett, Esquire

Carlton Fields

4221 West Bay Scout Boulevard

Post Office Box 3239

Tampa, Florida 33607

Sharon Glover, Esquire

2134 West Laburnum

Richmond, Virginia 23227

Sarah L. Smith

513 North Reus Street

Pensacola, Florida 32501

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.