09-000615 Candice Barnett vs. Lifestream Status: Closed Recommended Order on Tuesday, May 19, 2009.

Summary: Petitioner claimed she was unlawfully discharged because of her disability. She did not prove that she had a disability; her termination was a result of absenteeism and poor job performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CANDICE BARNETT, )

)

Petitioner, )

)

vs. ) Case No. 09-0615

)

LIFESTREAM, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on April 7, 2009, in Ocala, Florida.

APPEARANCES

For Petitioner: Candice Barnett, pro se

1850 Southeast 18th Avenue, No. 1601

Ocala, Florida 34491

For Respondent: Victoria McCloskey, Esquire

Albert Guemmer, Esquire

Guemmer & Ritt

3002 West Kennedy Boulevard

Tampa, Florida 33609

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice.

PRELIMINARY STATEMENT

Petitioner Candice Barnett (Ms. Barnett) filed an

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (Commission) on July 16, 2008.

She alleged that Respondent Lifestream Behavioral Center, of

Leesburg, Florida (Lifestream), had discriminated against her

based on a disability or handicap. On January 5, 2009, the

Commission entered its determination that there was no cause to

believe that an unlawful employment practice had occurred.

On January 30, 2009, Ms. Barnett filed a Petition for

Relief with the Commission. The matter was duly forwarded to

the Division of Administrative Hearings, and a hearing was

completed on April 7, 2009.

At the hearing, Ms. Barnett testified, but offered no

exhibits. Lifestream presented the testimony of Van Hargrove,

Lifestream's human resources officer; Veronica Duarte; and

Dr. John Lot III, and offered 35 exhibits into evidence. All

were accepted.

A Transcript was filed on May 7, 2009. After the hearing,

Respondent filed its Proposed Recommended Order on May 8, 2009.

Petitioner filed her Proposed Recommended Order on May 9, 2009.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Ms. Barnett is a resident of Ocala, Florida. She

executed Lifestream's employment application form on January 30,

2007. She claimed a bachelor's degree from Brooklyn College and

a Master's in Social Work from Upsala College in East Orange,

New Jersey. Her application indicated that she was a social

worker in New York from September 1987 until December 2003.

2. Ms. Barnett moved to Florida and was employed by the

Marion County Drug Court, but quit, according to Ms. Barnett,

because she had a heart attack in November 2005. Thereafter,

she worked for a company named ResCare in Gainesville, Florida.

Her job entailed working with mentally handicapped adults. She

was discharged from this job for losing her temper.

3. Lifestream operates a detoxification facility and

crisis stabilization unit among other things. It provides

services to children, adults, and the elderly. Lifestream's

mission is to provide quality life enrichment services through

prevention, education, and treatment.

4. Ms. Barnett was employed as an emergency evaluator on

or about February 15, 2007. An emergency evaluator works in the

receiving area of the Lifesteam facility. Clients are brought

to the facility by law enforcement or friends or family. Some

clients appear voluntarily. Clients enter the facility at

irregular hours.

5. As an emergency evaluator, it was Ms. Barnett's job to

search new clients to ascertain if they possessed weapons, in

order to ensure the safety of the client and staff, and to

evaluate them for mental status using Diagnostic and Statistical

Manual IV. It was her job to notify the nursing supervisor of

the health status of new clients and to prepare records.

6. Occasionally clients were violent, and at least once

Ms. Barnett was attacked by a client. This attack occurred on

May 3, 2007. She claimed that she had 17 injured discs in her

back. She claimed that these injuries occurred in part while

working for Lifestream, although she did not assert that all of

these injuries occurred during the alleged attack.

7. Ms. Barnett also stated that she was scheduled for

surgery and stated that a steel rod would be inserted in her

back at Tampa General Hospital. Although there was no medical

evidence introduced that corroborated her testimony, it was

unrebutted and is accepted as true.

8. There was no proof that these claimed medical

deficiencies resulted in a disability. In any event, the record

is completely devoid of any evidence that anyone at Lifestream

was aware of that Ms. Barnett might have been disabled or that

anyone perceived her as disabled. Moreover, she never requested

an accommodation.

9. Ms. Barnett's alleged disability first surfaced in

Ms. Barnett's Employment Complaint of Discrimination, subsequent

to her termination, which occurred on December 15, 2007.

10. During the approximately 10 months of employment at

Lifestream, Ms. Barnett was absent for her scheduled shift on 56

days. She did not inform Lifestream in advance that she was not

going to appear for work and as a result, Lifestream found it

necessary to replace her with other employees. This often

resulted in Lifestream bearing the cost of overtime pay.

11. When Ms. Barnett did work, her performance was poor,

and she was counseled about it. The charts that she was

required to maintain often failed to contain necessary

documentation and signatures. During the course of her

employment, she received five verbal and written reprimands

addressing her poor job performance.

12. Lifestream's constant uncertainty regarding

Ms. Barnett's attendance at work, an essential part of her job,

coupled with her poor performance, culminated in her being

removed from the work schedule in October 2008. She was not

formally discharged until December 2008. She remains eligible

for re-hire at Lifestream.

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,

comprise the "Florida Civil Rights Act of 1992." § 760.01(1),

Fla. Stat.

15. Lifestream is an "employer" pursuant to Subsection

760.02(7), Florida Statutes.

16. It is an unlawful employment practice for an employer

to discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment

because of such individual's handicap. § 760.10(1), Fla. Stat.

17 . " Handicap " is defined in Subsection 760.22(7), Florida

Statutes, as follows:

(a) A person has a physical or mental

impairment which substantially limits one

or more of major life activities, or he or

she has a record of having, or is regarded

as having, such physical or mental

impairment; . . .

18. This definition is essentially similar to the

definition in the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C.A. Section 12101-12213, which provides that disability

is:

(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;

(c) Being regarded as having such an

impairment.

19. Disability discrimination claims under the Florida

Civil Rights Act are analyzed under the same framework as ADA

claims. D'Angelo v. ConAgra Foods, Inc. , 422 F.3d 1220 (11th

Cir. 2005). Thus, the provisions of Chapter 760, Florida

Statutes, are analogous to those of the ADA.

20. 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; (2) that she is a

qualified individual, meaning she is able to perform the

essential functions of the position with or without

accommodation; and, (3) that she was discharged because of a

disability. See Terrell v. USAir , 132 F.3d 621, 624 (11th Cir.

1998).

21. The ADA identifies three categories of disability that

place an individual within the statute's protections. In order

to be disabled as defined by the ADA, a person: (1) must have a

physical or mental impairment that substantially limits one or

more of the major life activities of such individual; (2) must

have a record of such impairment; (3) or must be regarded as

having such impairment. See 42 U.S.C. § 12102(2).

22. Factors to consider when determining whether an

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

the 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." See 29 C.F.R. § 1630.2(j)(2).

23. 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).

24. Ms. Barnett did not attempt to persuade Lifestream

during her employment that she was disabled. She was not

regarded as disabled. Moreover, she did not offer any persuasive

evidence at the hearing that she was disabled as defined by the

ADA. It is found as a fact that during her employment with

Lifestream, she was not disabled nor was she regarded as

disabled.

25. Ms. Barnett 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 her position with or without

accommodation. Attendance is an essential function of the

position she held. The evidence demonstrated that she did not

report to work as assigned. Her poor job performance indicates

that Ms. Barnett cannot be considered qualified. See Waggoner v.

Olin Corporation , 169 F.3d 481, 483 (7th Cir. 1999), where the

court found the petitioner was "not a qualified individual with a

disability because of her spotty attendance record."

26. Proof of the third prong, that Ms. Barnett was

discharged because of a disability, was entirely absent.

27. Since Ms. Barnett was unable to prove a prima facie

case of discrimination, Lifestream is not required to offer any

legitimate reasons for its termination decision. The record is

abundantly clear, nevertheless, that the termination was based on

Ms. Barnett's absenteeism and poor job performance and was not at

all motivated by any discrimination based on disability. Her

absenteeism and poor job performance provided ample

nondiscriminatory reasons for discharging her. These were

certainly not pretextual reasons.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition of Candice Barnett.

DONE AND ENTERED this 19th day of May, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of May, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Candice Barnett

1850 Southeast 18th Avenue, No. 1601

Ocala, Florida 34491

Victoria McCloskey, Esquire

Albert Guemmer, Esquire

Guemmer & Ritt

3002 West Kennedy Boulevard

Tampa, Florida 33609

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.