08-005371 Sherry Malter vs. Orchard Ridge Status: Closed Recommended Order on Wednesday, March 4, 2009.

Summary: Employer did not discriminate by terminating employment of injured employee who exceeded authorized medical leave.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRY MALTER, )

)

Petitioner, )

)

vs. ) Case No. 08-5371

)

ORCHARD RIDGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on February 4, 2009, in New Port Richey,

Florida.

APPEARANCES

For Petitioner: Sherry Malter, pro se

9415 Palm Avenue

Port Richey, Florida 34668

For Respondent: Benjamin D. Sharkey, Esquire

Jackson Lewis

St. Joe Building

245 Riverside Avenue, Suite 450

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Subsection

760.10(1), Florida Statutes (2006), by discriminating against

Petitioner on the basis of her age or disability when Respondent

terminated Petitioner from her employment.

PRELIMINARY STATEMENT

On June 26, 2008, Petitioner filed a Charge of

Discrimination against Respondent with the Florida Commission on

Human Relations (the Commission). On September 17, 2008, the

Commission issued a Notice of Determination finding no

reasonable cause exists to believe that Respondent unlawfully

discriminated against Petitioner based upon an actual or

perceived disability or upon her age. Petitioner requested an

administrative hearing by timely filing a Petition for Relief

with the Commission, and the Commission referred the matter to

DOAH to conduct the final hearing.

At the hearing, Petitioner testified and presented the

testimony of another witness. Petitioner submitted no exhibits

for admission into evidence. Respondent called three witnesses

and submitted 13 exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the record of the hearing.

Neither party requested a transcript of the hearing.

Petitioner did not file a proposed recommended order (PRO)

with DOAH. Respondent timely filed its PRO on February 13,

2009.

FINDINGS OF FACT

1. Respondent is a rehabilitation and nursing center

located in Port Richey, Florida. Petitioner began her

employment with Petitioner on August 2, 2004, as a dietary aide

and remained employed as a dietary aide until the date of

termination from employment on June 26, 2007.

2. As a dietary aide, Petitioner provided assistance in

the kitchen area before, during, and after meals. Petitioner

cleaned tables, assisted with food carts, removed garbage, and

performed other physical duties to assist with the meal service.

3. Petitioner sustained a fractured wrist in an accident

at her home on March 27, 2007. Respondent provided unpaid leave

for Petitioner, pursuant to Family and Medical Leave Policy (the

FMLA Policy). The leave to which Petitioner was entitled as a

job benefit began on March 27, 2007. Petitioner was eligible

for up to 12 weeks of unpaid leave under the FMLA Policy.

4. On April 20, 2007, the treating physician for

Petitioner at the Center for Bone & Joint Disease provided a

note to Respondent stating that Petitioner was unable to return

to work for eight weeks. Respondent correctly excused

Petitioner from work until June 15, 2007.

5. On April 24, 2007, the treating physician for

Petitioner completed a Certification for Health Care Provider

Form and presented the form to Respondent. The form indicated

that Petitioner’s leave would expire on June 15, 2007.

6. Petitioner completed, signed, and provided to

Respondent a Request for Leave of Absence Form, indicating her

anticipated return date to be June 15, 2007. Respondent

provided leave for Petitioner until June 19, 2007.

7. It is undisputed that, seven days before returning to

work, the FMLA Policy required Petitioner to provide a medical

clearance or a doctor’s statement that she was physically able

to resume the normal duties of her employment. Shortly after

May 1, 2007, Petitioner received a memo from the administrator

for Respondent reminding Petitioner that her “FMLA leave EXPIRES

on: 6/19/2007.” In late May 2007, Ms. Joann Robinson, a co-

worker and former cook for Respondent, spoke to Petitioner by

telephone and requested that Petitioner contact the supervisor

about Petitioner’s return to work. Petitioner acknowledged to

Ms. Robinson that Petitioner would contact the supervisor.

Ms. Robinson informed the supervisor that she spoke with

Petitioner and that Petitioner stated she would contact the

supervisor.

8. When the supervisor did not hear from Petitioner, the

supervisor and Ms. Laura Gilbreath, payroll administrator for

Respondent, attempted to contact Petitioner by telephone

approximately one week prior to the expiration of the FMLA

leave. The purpose of the telephone call was to confirm that

Petitioner was able to return to work upon expiration of her

FMLA leave. The supervisor and Ms. Gilbreath were unable to

reach Petitioner because her telephone service was disconnected.

9. Petitioner never contacted Respondent prior to the

expiration of the FMLA leave on June 19, 2007. Petitioner never

contacted her supervisor about returning to work and never

presented a medical clearance or doctor’s statement that she was

physically able to resume her normal duties.

10. Respondent terminated Petitioner from her employment

on June 26, 2007, for exceeding the leave allocated under the

FMLA Policy and failing to contact the facility or report back

to work with proper documentation prior to the expiration of her

FMLA leave. Respondent has terminated other employees who

failed to contact the facility or return to work upon exhaustion

of leave under the FMLA Policy, and there is no evidence to

suggest Respondent treated Petitioner any differently.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction of the parties and subject

matter of this proceeding. § 120.57(1), Fla. Stat. (2008).

DOAH provided the parties with adequate notice of the final

hearing.

12. Petitioner has the burden of proof. Petitioner must

show by a preponderance of the evidence that Respondent

committed the acts and violations alleged in the Charge of

Discrimination. Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248 (1981); McDonald Douglas Corp. v. Green , 411 U.S.

792 (1973). For reasons stated in the Findings of Fact,

Petitioner failed to make a prima facie showing of

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

Respondent not guilty of the alleged discrimination and

dismissing the Petition for Relief.

DONE AND ENTERED this 4th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Sherry Malter

9415 Palm Avenue

Port Richey, Florida 34668

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Benjamin D. Sharkey, Esquire

Jackson Lewis

St. Joe Building

245 Riverside Avenue, Suite 450

Jacksonville, Florida 32202

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.