08-006113 Debra L. Porter vs. Doctor`s Memorial Hospital Status: Closed Recommended Order on Tuesday, November 3, 2009.

Summary: Disability vs. Impairment are discussed, but the case was decided upon Petitioner's failing to prove second prong of handicap discrimination: that she was "otherwise qualified for her job, with or without accommodation."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBRA L. PORTER, )

)

Petitioner, )

)

vs. ) Case No. 08-6113

)

DOCTORS' MEMORIAL HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on July 20, 2009, in Tallahassee, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul M. Anderson, Esquire

Anderson, Fernandez & Hart, P.A.

1584 Metropolitan Boulevard

Tallahassee, Florida 32308

For Respondent: Bruce Culpepper, Esquire

Mark Schellhause, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent Employer committed a discriminatory

employment practice against Petitioner on the basis of handicap,

in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

On April 2, 2008, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR). On November 7, 2008, FCHR entered a Notice of

Determination: Cause. On November 12, 2008, FCHR issued a

Determination: No Cause and an Amended Notice of Determination:

No Cause. On December 1, 2008, Petitioner filed a Petition for

Relief, and on or about December 5, 2008, the case was referred

to the Division of Administrative Hearings (DOAH).

DOAH’s case file reflects all pleadings, notices, and

orders intervening before the disputed-fact hearing held

July 20, 2009.

At hearing, the parties stipulated to admission of a

notebook of exhibits marked, “Respondent’s Exhibit 1,”

consisting of Bate-stamped documents numbered 0001 through 0174.

Petitioner testified on her own behalf and had Petitioner’s

Exhibits 19-22, admitted in evidence.

Respondent presented the oral testimony of Ann Gray,

Diana McRory, and Lisa Story, and had Exhibits R-2 and R-3,

admitted in evidence. Exhibit R-3 is the deposition of

Dr. Ghulam Mohammed.

Joint Exhibit A, was also admitted. It contains FCHR’s

“Determinations” and notices thereof, which have been referred-

to, supra . ( See TR-21.)

FCHR abrogated its obligation to preserve the record, but

the parties hired a court reporter, and a Transcript was filed

on August 7, 2009.

Both parties filed Proposed Recommended Orders within an

extended time frame and each proposal has been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Licensed Practical Nurse (LPN). She

has worked as an LPN for Respondent Hospital on multiple dates.

Her most recent employment with Respondent commenced on or about

April 5, 2007, and gave rise to this case. Respondent is an

“employer” as defined in Section 760.02(7), Florida Statutes.

2. Petitioner was first hired by Respondent on July 11,

1996, as an LPN, on a part-time, on-call, substitute, “as

needed.” In other words, the discretion to summon a PRN nurse

in to work or not to do so is solely that of the Employer, and

the Employer can call in particular PRN nurses or not call them

in as it sees fit, provided the reason a nurse is not called in

is not a discriminatory reason.

3. Upon this first hire, Petitioner was required to attend

a general orientation, which included a review of the Employee

Handbook, verification by Petitioner of her ability to perform

the minimum requirements and essential functions of an LPN,

execution of a PRN Agreement (see Finding of Fact 23), and

completion of an Application for Employment.

4. During her first employment with Respondent, which

lasted 19 months, Petitioner missed time from work to undergo

neck surgery. Upon her return to work, Petitioner presented

Respondent with a “returned to work with no restrictions” note

from Dr. Shipman.

5. On March 5, 1998, Respondent discharged Petitioner over

medication and/or behavior issues. Petitioner was essentially

cleared of professional nursing error by an April 1, 1999,

notification from the Florida Agency for Health Care

Administration of a “no probable cause” determination.

6. In 1998, while employed as an LPN with a different

employer, Petitioner suffered an injury to her back and knee

when she slipped and fell trying to catch a patient.

7. Catching patients is a common way in which nurses are

injured, and there is no way to accurately predict which

patients will fall or when one will fall. A falling patient

triggers a nurse’s rescue response and he or she will react

without stopping to assess the danger to him- or herself.

8. After her 1998 injury, Petitioner underwent several

back surgeries which were successful in correcting damage to one

nerve. However, since that time, Petitioner has continued to

have residual pain and numbness.

9. Petitioner returned to work with Respondent in 2003.

In connection with her 2003, application, Petitioner provided

Respondent with a workers’ compensation DWC-9 Form, completed by

orthopedic surgeon, Dr. Charles Wingo. This form indicated

that, effective December 3, 2003, Dr. Wingo had determined, for

workers’ compensation purposes, that Petitioner had reached

“maximum medical improvement”; was permanently impaired at a

rating of nine percent of the body as a whole; and could return

to full-time employment as of January 5, 2004. Dr. Wingo

further opined that Petitioner should observe one hour-

restrictions on sitting, standing, and walking, with infrequent

bending, squatting, crawling, climbing, and reaching. In his

opinion, Petitioner could continuously lift up to 10 pounds,

frequently lift up to 20 pounds, and occasionally lift up to 100

pounds. He stated that she could continuously carry up to 10

pounds, frequently carry up to 20 pounds, and occasionally carry

100 pounds.

10. Despite the foregoing medical opinion, Respondent re-

hired Petitioner on or about December 22, 2003, without

challenging her ability to perform her duties as an LPN and

without requiring that she first provide a full duty medical

release with no restrictions.

11. Upon this second hiring, on January 5, 2004,

Petitioner signed for, and acknowledged reading, Respondent’s

Employee Handbook and Respondent’s LPN job requirements, and

assured Respondent that she understood the Handbook and that she

could perform the job requirements. Upon her three-month

review, dated April 15, 2004, Petitioner again acknowledged she

could perform the job requirements.

12. Petitioner resigned in May, 2004, due to back

problems, but her resignation letter to Respondent was less

specific, stating only that she was resigning for “medical

reasons” and hoped to be re-hired when the medical reasons were

resolved.

13. The Social Security Administration determined on

January 31, 2006, that Petitioner had become “a disabled

person,” effective August 1, 2004, and awarded her disability

benefits. Thereafter, Petitioner continued, and still continues

to receive these benefits. ( Cf . Finding of Fact 16.)

14. In 2006-2007, Petitioner wanted to “ease back into”

full-time employment without losing her Federal disability

benefits until she was certain she could handle full-time

employment. She repeatedly approached Lisa Story, Respondent’s

Intensive Care Unit (ICU) Supervisor, about employment with

Respondent.

15. Eventually, Ms. Story advised Petitioner that

Respondent Hospital wanted to avoid paying overtime to its

presently employed LPNs by hiring a new LPN willing to work PRN

in ICU for only three shifts per month.

16. Petitioner notified the Social Security Administration

of the arrangement described by Ms. Story and was approved for a

trial work period. During the trial work period, Petitioner

would continue to receive Federal disability benefits, provided

she earned an amount below the earnings cap set by the Social

Security Administration. She also continued to receive her

Federal medical benefits.

17. There is no evidence that Petitioner presented any

Social Security disability documents to either Ms. Story or

Respondent’s Human Resources Department in 2007.

18. Although she knew Petitioner continued to receive

disability benefits, Ms. Story believed Petitioner’s physical

problems had been resolved. At all times material, Ms. Story

believed that hiring Petitioner for only three shifts per month

would fulfill Respondent Hospital’s needs, while accommodating

Petitioner in terms of how much Petitioner could earn under

Social Security guidelines.

19. Ms. Story recommended to her superiors that Petitioner

be hired, but Ms. Story had no independent authority to hire

anyone for Respondent. The position was posted, and Petitioner

was requested to come in to apply.

20. In connection with her third hiring in 2007,

Petitioner filled out a series of papers for Respondent on two

occasions: once on March 29, 2007, just before her first day on

the job, and once on or about June 4, 2007, when the next “new

employee orientation” became available.

21. Because Petitioner passed an examination on

Respondent’s basic employer/employee requirements, Respondent

allowed Petitioner to start work in April 2007, without taking

the usual orientation program and without receiving/completing

all the paperwork required by Respondent for new employees.

22. Respondent hired Petitioner as an LPN/PRN employee at

will by a contract dated March 29, 2007, and assigned her to the

new three-shifts-per-month slot in ICU. Respondent did not view

positions for any type of direct patient care personnel,

including nurses of any description, unless they are already

Respondent’s employees who have been injured on the job and are

covered by Respondent’s workers’ compensation plan/policy,

pursuant to Chapter 440, Florida Statutes. ( See Finding of Fact

30.)

23. In fact, Respondent’s March 29, 2007, LPN/PRN contract

which Petitioner signed, specified, in pertinent part:

I further understand that to maintain my PRN

employment, it is required the employee work

at least 2 (two) shifts per month and not

refuse to work or call off more than 3

(three) times in a one year period.

Recognizing that Doctors’ Memorial Hospital

provides care on a continuous basis, I

further commit to floating to other areas to

which I have been oriented during my

assigned shifts.

24. As part of her initial hiring process in March-April

2007, Petitioner also filled out an Equal Opportunity Voluntary

Self-identification Current Employee Survey, denying that she

was a disabled individual “defined as an individual who has a

mental or physical impairment which substantially limits one or

more major life activities, has a record of such impairment or

who is perceived as having such impairment.” The foregoing

language tracks the definition of “disability” originating in

the Americans With Disabilities Act (ADA) and adopted as the

definition of “disability” under the progeny of case law arising

from the ADA and adopted as the definition of “handicap” under

the progeny of case law arising from Chapter 760, Florida

Statutes.

25. Petitioner also did not specify any accommodations she

needed from Respondent in the blanks provided for such

accommodation requests on this Equal Opportunity Voluntary Self-

identification Current Employee Survey.

26. Petitioner testified that by declaring that she was

not a disabled individual and stating that her physical

impairments did not limit one or more of her major life

activities, she intended to convey that her life activities

(like “activities of daily living”: eating, cooking, bathing,

doing housework) were not limited by her physical condition,

even if her lifting (of patients, etc.) ability was limited.

27. Petitioner signed and dated a “Position Description,

Annual Appraisal” form on March 29, 2007, wherein she verified

that, “I have reviewed these job requirements and verify that I

can perform the minimum requirements and essential functions of

this position.” Part of this document sets out the physical

requirements of the LPN position, which included medium, heavy,

and very heavy work. The form defines “medium work” as exerting

up to 50 pounds force occasionally and/or up to 20 pounds

frequently and /or up to 10 pounds constantly.” The form

defines “heavy work,” as exerting up to 100 pounds force

occasionally and/or up to 50 pounds frequently and/or 20 pounds

constantly. The form defines “very heavy work” as exerting over

100 pounds force occasionally and/or over 20 pounds constantly.”

The form also sets out the minimum or essential requirements of

the position which include standing for five hours, sitting for

two hours, and walking for five hours, and requirements to

engage in occasional bending, crouching, squatting, reaching,

pushing/pulling up to 10 pounds, lifting/carrying up to 10

pounds, and lifting from floor and waist level.

28. Ms. McRory, Respondent’s Director of Human Resources,

testified that with regard to lifting or pushing, Respondent’s

LPN requirements meant that an LPN had to exert force of 100

pounds occasionally and 50 pounds frequently, but the

requirements for “standing for five hours, sitting for two

hours, and walking for five hours,” were cumulative, rather than

continuous requirements.

29. Petitioner admitted at hearing that she signed the

declaration when she was hired in 2007 stating that she had read

and met the job requirements but that she would not have been

able to perform work requiring her to exert 50 to 100 pounds of

force occasionally. Her assessment was confirmed by Dr. Ghulam

Mohammed. ( See Findings of Fact 35 and 43.)

30. A pertinent part of each Employee Handbook that

Petitioner received, including the ones she had received during

previous employments and the one she signed-for during

orientation in June 2007, provided:

Upon request, DMH [Respondent] provides

reasonable accommodation to employees or

applicants for employment with known

disabilities as required under the

employment provisions (Title I) of the

Americans with Disabilities Act, or ADA.

Employment opportunities shall not be denied

because of the need to make reasonable

accommodations to an individual’s

disability. To request a reasonable

accommodation, make your request known by

completing the Reasonable Accommodation

Based on Disability Request Form in Human

Resources Department.

Accommodation is not reasonable for direct

patient care employees. For the direct

patient care employee’s safety and DMH risk

management, they must be physically able to

perform their position’s job requirements

and job duties with no limitations.

However, a direct patient care employee may

request or be offered to transfer to any

available positions with job requirements

they are physically able to perform.

(Emphasis supplied.)

31. When Petitioner underwent orientation in June 2007,

she was required to complete a Health Information Form. In

completing this form, Petitioner answered “yes” to a question

asking if she had ever had a problem with her back; “yes” to a

question asking if she had ever been hurt on the job; and “yes”

to a question asking if she had ever had a back ailment. She

further described having undergone a partial diskectomy with

stabilizing plate and knee surgery. In answering a question as

to whether she had any “physical disability or impairment,” she

answered “back injury and chronic pain.” She also appended a

page upon which she wrote “Back trouble. Had surgery 10/03 on

lumbar area to relieve pressure on a nerve. 100 percent

successful”; “knee trouble to repair torn meniscus (no further

1998.” This was Petitioner’s first clear statement during her

2007, employment with Respondent that she might have some

continuing inability to perform Respondent’s requirements for

LPN employment.

32. Petitioner worked for Respondent in its ICU between

April 2007, and October 2007. During that time, Petitioner

worked just three 12-hour shifts per month, always on the first

three Wednesdays of each month. She worked during that period

without any physical problems. She was able to do the work

required of her there.

33. During this period of employment, Petitioner did not

work the same shifts as Lisa Story, but it was Ms. Story who

reviewed Petitioner’s work, and at her three-month probationary

review on September 9, 2007, Ms. Story graded Petitioner highly

and recommended her for retention as an employee. Petitioner

graduated at that point from probationary to regular employee.

34. In late September 2007, after her “excellent”

evaluation of Petitioner, Ms. Story requested that Petitioner

obtain a statement from a physician outlining her work

capabilities. Ms. Story had been instructed to do this by one

of her superiors. All of the reasons for this request offered

by Respondent at hearing are either incredible due to the

timeline of other events or constitute unsupported hearsay, but

Petitioner did not initially object to providing the statement.

35. On or about September 24, 2007, Petitioner obtained a

written statement from Dr. Ghulam Mohammed that read:

Debra is followed by me for her medical

problems for years. Medically she is able

to work one shift a week as a nurse. (in ICU

of Doctors Memorial Hospital, Perry FL.)

(Corrected to close parentheses and for

capitalization.)

36. Petitioner hand-delivered copies of Dr. Mohammed’s

letter to Respondent’s Interim Director of Nursing,

Jeannie Harris, and to Ms. Story. She placed copies of the

letter in the mailboxes of Diana McRory, Human Resources

Director, and of Sarah Ann Gray, Interim Director of Nursing and

Risk Manager.

37. Ms. Story testified that she saw the letter and

thought it was adequate for the work Petitioner would be doing

in ICU. No one else consulted her on her opinion.

38. Dr. Mohammed’s letter was reviewed by Diana McRory.

She found it unacceptable because it did not state “no

restrictions.”

39. Having considered all the evidence, and particularly

the competing and sometimes internally contradictory evidence,

it is found that Petitioner was never advised by Respondent

until after Petitioner had been terminated, that Dr. Mohammed’s

September 24, 2007, letter was unacceptable or that she must

provide the Employer with a doctor’s letter stating that she was

currently able to work “with no restrictions.”

40. However, Petitioner did not return with such a letter

even after she was advised what was needed. This was apparently

because she believes the unique slot she had been filling in the

ICU had been created for her and that was the only amount and

conditions of work she felt she could handle.

41. Respondent’s Interim Director of Nursing and Risk

Manager, Ms. Gray, testified that Respondent has a policy of

requiring the equivalent language of “no work restrictions”

because to do otherwise would be to risk liability to patients

and employees alike.

42. It is axiomatic that the Hospital Employer does not

wish to incur workers’ compensation liability to employees or

medical malpractice/premises liability to patients. ( See

Findings of Fact 7, 30, and 41.)

43. Dr. Mohammed testified that Petitioner is incapable of

performing the medium, heavy, and very heavy work outlined in

the Respondent’s job requirements for an LPN.

44. Petitioner was removed from Respondent’s payroll on

September 27, 2007, because she had not brought in an acceptable

return to work with no restrictions note from a doctor. This

resulted in Petitioner’s badge not permitting her to clock-in,

but through a variety of fiats and authorizations, various

superiors and/or administrative officials overrode the system to

allow her to do so. Accordingly, Petitioner worked as an LPN

for Respondent on October 10, 2007, and on October 17, 2007.

45. Although Petitioner testified that she thought she

earned $20-21 per hour working for Respondent, depending on

whether a particular shift did or did not span midnight,

Respondent’s records appear to show that she was paid $17.00 per

hour, during her probationary period and $18.00 per hour after

her first evaluation on September 9, 2007. As a PRN employee,

she was not receiving retirement and other emoluments to which a

full-time employee was entitled.

46. Respondent did not offer Petitioner more sedentary

work until after Petitioner filed her complaint with FCHR.

47. Petitioner began work as a Senior LPN for the

Department of Corrections at the Mayo Correctional Institution

on or about July 25, 2008. In that capacity, she does no

significant lifting, pulling, pushing, or twisting.

48. Petitioner testified that between October 17, 2007,

and beginning work for the Department of Corrections, she was

not gainfully employed; she was in school. (TR-60)

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1) and Chapter 760, Florida

Statutes (2009).

50. Although this process, in this forum, may not

adjudicate any rights under Federal law, it is appropriate to

interpret Subsection 760.10(1)(a), Florida Statutes, by

reference to federal case law under the Civil Rights Act (Title

VII), the Rehabilitation Act, and the ADA. School Board of Leon

County v. Weaver , 556 So. 2d 443 (Fla. 1st DCA 1990); Hunter v.

Winn-Dixie Stores, Inc. , FCHR Case 82-0799 (February 23, 1983).

51. Petitioner must prove the following in order to

establish a prima facie case of handicap discrimination:

(a) She is handicapped within the meaning

of the Florida Civil Rights Act;

(b) She was otherwise qualified for his

job, with or without reasonable

accommodation; and

(c) She was harassed or terminated solely

by reason of his handicap.

See Hilburn v. Murata Electronics North America, Inc., 181 F.3d

1220 (11th Cir. 1999) ; Gordon v. E. L. Hamm & Assoc., Inc., 100

F.3d 907 (11th Cir. 1999) ; and Brand v. Florida Power

Corporation , 633 So. 2d 504 (Fla. 1st DCA 1994).

52. In Brand , the court adopted the definition of handicap

found in Section 504 of Title V of the Rehabilitation Act of

1973, and stated:

Section 504 specifically refers to 29

U.S.C. Sec. 706(8)(B) for the definition

thereof. The latter defines an “individual

with handicaps,” subject to certain

exceptions not applicable to this case as

one “who (i) has a physical or mental

impairment which substantially limits one or

more of such person’s major life activities,

(ii) has a record of such an impairment, or

(iii) is regarded as having such an

impairment.” Examples of major life

activities include caring for oneself,

walking, seeing, speaking, breathing,

learning, and working. (Emphasis supplied.)

Id. at 510, n. 10.

53. The same definition of “disability” is set out in the

ADA. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams ,

112 S. Ct. 681 (2002), the United States Supreme Court, in a

unanimous decision, provided guidance, for purposes of the ADA,

as to how “handicap/disability” is to be proven:

* * *

Merely having an impairment does not

make one disabled for purposes of the ADA.

Claimants also need to demonstrate that the

impairment [substantially] limits a major

life activity. (Bracketed material added for

clarity.) . . .

* * *

“Major life activities” thus refers to those

activities that are of central importance to

daily life. . . .

* * *

. . . the manual tasks unique to any

particular job are not necessarily important

parts of most people’s lives. As a result,

occupation-specific tasks may have only

limited relevance to the manual task

inquiry.

* * *

The Court, therefore, should not have

considered respondent’s inability to do such

manual work in her specialized assembly line

job as sufficient proof that she was

substantially limited in performing manual

tasks.

* * *

Yet household chores, bathing, and brushing

one’s teeth are among the types of manual

tasks of central importance to people’s

daily lives, and should have been part of

the assessment of whether respondent was

substantially limited in performing manual

tasks.

54. Given the foregoing, it was not unreasonable that a

confused Petitioner might declare to the Employer that she was

not a disabled person and later claim to be discriminated

against on the basis of handicap. Even skilled legal minds

become confused in distinguishing impairments from disabilities.

This is one reason that detailed employee questionnaires are the

norm for employers trying to discern whether an employee can

fulfill the requirements of a particular position.

55. It is helpful to an analysis of handicap

discrimination to synopsize the critical facts: Herein,

Petitioner had been previously employed by Respondent and had a

good working knowledge of the physical requirements of PRN/LPNs.

Respondent had knowledge of some of Petitioner’s past physical

impairments and work restrictions, but when Petitioner was hired

in 2007, she signed papers stating that she was not permanently

impaired or disabled and could meet all the Employer’s job

requirements. The Employer wanted to avoid paying overtime

because it was cheaper to hire a new LPN/PRN than to pay one or

more regular full-time LPNs to work a specific 36 hours per

month. The Employer did not create a tailor-made job position

for Petitioner. Rather, the Employer made a managerial decision

based on the Federal Wage and Hours Act and its own corporate

pocketbook and invited Petitioner to apply for the position.

Petitioner did not ask for any specific accommodations.

56. Petitioner acknowledged to the Employer that she knew

she could be placed on other shifts and that if she repeatedly

did not come in when called PRN-as needed, she could be

terminated. She further acknowledged that she could be floated

at any time to a different job setting within the hospital.

57. What triggered the Employer to question Petitioner’s

ability or safety on the job in late September 2007 (five months

after hiring; three months after she made her full disclosure in

June of past injuries, operations, and limitations; and

approximately three weeks after she was rated as an exceptional

ICU nurse and taken off probation) is not clear in this record.

58. Petitioner clearly did a good job in the ICU, but even

there, the chance existed of a patient falling and getting

injured if Petitioner instinctively sought to protect herself

due to prior injury or impairment status. A chance of

Petitioner's being injured if she did not protect herself from a

falling patient also existed. In light of Petitioner’s

June 2007 papers, the Employer’s request for a medical release

was not unreasonable.

59. The Employer has treated Petitioner shabbily by not

timely explaining to her a second time what type of release-to-

work papers were needed from her doctor, but the evidence

clearly shows that explaining further would not necessarily have

made it possible for Petitioner to get a full medical release.

60. Petitioner is clearly handicapped, but she has not

proven a prima facie case of discrimination, because she has not

established that she can perform the full duties of the job

description with or without accommodation. See cases, supra .

61. Assuming arguendo , but not ruling, that a prima facie

case has been made, Respondent has produced evidence to the

contrary which has not been disproven.

62. Additionally, it is noted that Petitioner probably

would be entitled to no award beyond job reinstatement even if

she had proven a discriminatory termination, because she chose

to go to school rather than mitigating any loss of salary by

seeking alternative employment between her termination by

Respondent and the date she assumed her current position with

the Department of Corrections. Even so, any money damages to

which she might have been entitled if a discriminatory

termination had been proven would have to be based on $18.00 per

hour for only 36 hours per month, lasting only for those periods

of time after termination that she was actually seeking

employment, and based on the difference between the two rates of

pay if she were paid less than $18.00 per hour once she found

employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

and Charge of Discrimination.

DONE AND ENTERED this 3rd day of November, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 3rd day of November, 2009.

COPIES FURNISHED :

Bruce Culpepper, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Paul M. Anderson, Esquire

Anderson & Hart, P.A.

1584 Metropolitan Boulevard

Tallahassee, Florida 32308

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.