08-004556 Linda J. Coonrod vs. Baptist Hospital Status: Closed Recommended Order on Friday, February 13, 2009.

Summary: Petitioner does not have a disability for purposes of a violation of ADA or civil rights law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA J. COONROD, )

)

Petitioner, )

)

vs. ) Case No. 08-4556

)

BAPTIST HOSPITAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 16,

2008, via video teleconferencing with locations in Pensacola and

Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Linda J. Coonrod, pro se

4487 Audiss Road

Milton, Florida 32583

For Respondent: Russell F. Van Sickle, Esquire

Beggs & Lane, LLP

Post Office Box 12950

Pensacola, Florida 32591-2950

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 24, 2007.

PRELIMINARY STATEMENT

On December 24, 2007, Petitioner, Linda J. Coonrod, filed

an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR), which alleged that Baptist

Hospital violated Section 760.10, Florida Statutes (2007), by

discriminating against her on the basis of disability.

The allegations were investigated and on July 30, 2008,

FCHR issued its determination of "No Cause" and Notice of

Determination: No Cause.

A Petition for Relief was filed by Petitioner on August 22,

2008. FCHR transmitted the case to the Division of

Administrative Hearings on or about September 17, 2008. A

Notice of Hearing by video teleconference was issued by

Administrative Law Judge Suzanne Hood on October 3, 2008,

setting the case for formal hearing on December 16, 2008. Prior

to hearing, the case was transferred to the undersigned.

At hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of Melanie Kuzma and Venus

Jones. Respondent offered into evidence Exhibits 1 and 2, which

were admitted into evidence.

A Transcript consisting of one volume was filed on

December 22, 2008. Respondent timely filed a Proposed

Recommended Order which has been considered in the preparation

of this Recommended Order. Petitioner did not file any post-

hearing submission.

FINDINGS OF FACT

1. Petitioner, Linda J. Coonrod, was employed by

Respondent, Baptist Hospital (the hospital), since approximately

1993. She became a unit coordinator in approximately 2002 and

remained in that position until she was terminated from

employment effective September 4, 2007.

2. Petitioner is a licensed practical nurse. Her position

as a unit coordinator required her to perform such tasks as

answering the phone, coordinating doctors' appointments and

doctors' orders, and performing various tasks using a computer.

3. Petitioner’s regular work schedule was Monday through

Friday from 6:00 a.m. until 2:00 or 3:00 p.m.

4. Petitioner was scheduled to work on Thursday,

August 30, 2007, and Friday, August 31, 2007. However, she did

not report to work on either August 30 or 31.

5. Petitioner did not report to work as scheduled on

August 30 and 31, 2007, because she had been admitted as a

patient to the emergency room of the hospital on the evening of

August 29, and remained a patient at the hospital on August 30

and 31, 2007. She was discharged on September 1, 2007, a

Saturday.

6. Melanie Kuzma is a registered nurse and is employed by

Respondent as the clinical manager of the medical floor.

Ms. Kuzma was Petitioner’s supervisor when Petitioner was

employed at the hospital.

7. Unfortunately, Ms. Kuzma did not know why Petitioner

did not report for work as scheduled on August 30 and 31.

Petitioner was being treated at the hospital for chest pain and

was given several medications while a patient there. She could

not or did not notify Ms. Kuzma of her admission to the hospital

and her resulting unavailability to report to work as scheduled.

Petitioner did not ask her treating nurse, her treating doctor,

or anyone else to inform Ms. Kuzma of her whereabouts. No one

else contacted Ms. Kuzma as to Petitioner’s whereabouts. In any

event, Ms. Kuzma was not aware of why Petitioner did not report

to work as scheduled.

8. While in the hospital as a patient, Petitioner was not

in the same unit in which she worked as an employee. Ms. Kuzma

was not a supervisor over the area of the hospital where

Petitioner was a patient.

9. When Petitioner did not report to work as scheduled on

August 30, 2007, Ms. Kuzma called Petitioner’s home. No

answering machine or voice mail was available to leave a

message, so she and the unit coordinator continued to call

Petitioner’s home throughout the day with no success.

10. When Petitioner did not report to work as scheduled

the following day, Ms. Kuzma and the unit coordinator continued

to call Petitioner’s home. Again, they did not reach Petitioner

and had no way of leaving a message.

11. Attempting to call a person who fails to report to

work as scheduled is standard practice at the hospital. A

person who fails to report to work as scheduled and fails to

call in is referred to by the hospital as a “no call, no show.”

12. Ms. Kuzma notified Venus Jones, the Employee Relations

Manager for the hospital, that Petitioner had not reported to

work as scheduled and failed to call in for two days.

13. Ms. Jones informed Ms. Kuzma that when an employee had

two days “no call, no show,” that it would result in discharge

from employment with the hospital.

14. Petitioner reported to work on Monday, September 3,

2007, which was a holiday. It was then that Petitioner told

Ms. Kuzma that she had been admitted as a patient in the

hospital on the evening of August 29, and remained a patient on

August 30 and 31, 2007.

15. Ms. Jones has terminated the employment of other

employees for “no call, no show” for a two-day period.

Ms. Jones does not consider anything unique about Ms. Coonrod’s

situation.

16. Ms. Jones did not consider Petitioner’s reason for her

“no call, no show” to work to be adequate.

17. On September 11, 2007, Ms. Jones sent a letter to

Petitioner informing her that her employment was terminated for

failure to report to work and failure to notify her department

of her absence.

18. Petitioner acknowledged that her heart problem which

precipitated her hospitalization at the time in question was not

a disability. This medical condition did not prevent her from

working and did not limit her from doing everyday tasks such as

getting dressed, driving, brushing her teeth, or other normal

life activities.

19. When questioned at hearing about her medical

condition, Petitioner responded, “I’m not disabled. I don’t

have a handicap because of it.” Further, there is no evidence

in the record that anyone employed by Respondent perceived

Petitioner to have a disability.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

Sections 120.569 and 120.57, Florida Statutes (2008).

21. Section 760.10(1), Florida Statutes (2007), states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of handicap.

22. Florida courts have recognized that actions for

discrimination on the basis of disability are analyzed under the

same framework as Americans with Disabilities Act (ADA) claims.

St. Johns County School District v. O’Brien , 973 So. 2d 535,

540 (Fla. 5th DCA 2007); Chanda v. Engelhard/ICC , 234 F.3d 1219,

1221 (11th Cir. 2000).

23. The ADA defines a disability as a physical or mental

impairment that substantially limits one or more of the major

life activities of an individual. Evans v. County of Alachua ,

937 So. 2d 693, 694 n.1 (Fla. 1st DCA 2006); Chanda , supra at

1221. For purposes of the ADA, a person who has a record of

having an impairment that substantially limits one or more major

life activities, or a person who is regarded by the employer as

having such an impairment, may also be protected. St. Johns

County School District v. O’Brien , supra , 973 So. 2d at 541.

24. In order to establish a prima facie case of disability

discrimination, Petitioner must show that she is disabled, is

able to perform the essential elements of the job she seeks, and

that she was discriminated against by the employer because of

her disability. St. Johns , supra at 541; Reed v. Heil Co. , 206

F.3d 1055 (11th Cir. 2000).

25. Petitioner acknowledged that she does not have a

disability and that she is not limited in any life activity.

Further, no evidence was presented that Respondent regarded

Petitioner as having a disability. Accordingly, Petitioner does

not meet the first prong of the test and, therefore, has not

established a prima facie case of handicap discrimination.

26. Even if Petitioner had established a prima facie case,

the burden to go forward would shift to the employer to

articulate a legitimate, non-discriminatory explanation for the

employment action. St. Johns , supra at 541, citing McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973); and see Department

of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases).

27. Respondent articulated a legitimate, non-

discriminatory reason for its employment action. That is,

Petitioner was discharged for her “no call, no show” on

August 30 and 31, 2007.

28. Citing Cleveland v. Home Shopping Network, Inc. , 369

F.3d 1189, 1193 (11th Cir. 2004), the court in St. Johns

explained that in handicap or disability discrimination cases:

Once the claimant demonstrates a prima facie

case, and the employer responds with a non-

discriminatory reason, the inference of

discrimination is eliminated, and the

McDonnell Douglas framework disappears.

The plaintiff bears the ultimate burden of

proving that the defendant intentionally

discriminated against her because of her

disability.

973 So. 2d 535 at 543.

34. It is beyond the scope of this case for the

undersigned to determine whether Respondent’s decision to

terminate Petitioner’s employment, after learning of the reason

why Petitioner did not report to work or call in, was overly

harsh. What is relevant to this analysis is that Respondent’s

actions were not based upon unlawful discrimination. “The

employer may fire an employee for a good reason, a bad reason, a

reason based on erroneous facts, or for no reason at all, as

long as its action is not for a discriminatory reason.”

Department of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st

DCA 1991), quoting from Nix v. WLCY Radio/Rahall Communications ,

738 F. 2d 1187 (11th Cir. 1984).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Employment Charge of Discrimination

and Petition for Relief.

DONE AND ENTERED this 13th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 13th day of February, 2009.

COPIES FURNISHED :

Linda J. Coonrod

40487 Audiss Road

Milton, Florida 32583

Russell F. Van Sickle, Esquire

Beggs & Lane. LLP

Post Office Box 12950

Pensacola, Florida 32591-2950

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.