09-000033 Kathleen Sullivan vs. Clay County Board Of Commissioners Status: Closed DOAH Final Order on Thursday, June 11, 2009.

Summary: Petitioner did not prove that Respondent treated any non-disabled employees more favorably than Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHLEEN SULLIVAN, )

)

Petitioner, )

)

vs. ) Case No. 09-0033

)

CLAY COUNTY BOARD OF )

COMMISSIONERS, )

)

Respondent. )

)

SUMMARY FINAL ORDER

A formal hearing was conducted in this case on March 4,

2009, in Green Cove Springs, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gaither L. Saunders, Jr.

Qualified Representative

1640B Vineland Circle

Fleming Island, Florida 32003

For Respondent: Margaret P. Zabijaka, Esquire

Lori K. Mans, Esquire

Constangy, Brooks & Smith, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner based on her disability by terminating her employment

and/or denying her a reasonable accommodation in violation of

Section 760.10, Florida Statutes (2008).

PRELIMINARY STATEMENT

On or about June 18, 2008, Petitioner Kathleen Sullivan

(Petitioner) filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR). The

complaint alleged that Respondent Clay County Board of

Commissioners (Respondent) terminated her employment and denied

her a reasonable accommodation in violation of Section 760.10,

Florida Statutes (2008).

On December 30, 2008, FCHR issued a Determination: No

Cause. Petitioner filed a Petition for Relief on December 29,

2008.

FCHR referred the case to the Division of Administrative

Hearings on January 6, 2009. A Notice of Hearing dated

January 14, 2009, scheduled the hearing for March 4, 2009.

On January 21, 2009, Respondent filed a Motion for Summary

Hearing pursuant to Section 120.574, Florida Statutes (2008).

After a telephone conference on January 26, 2009, the parties

filed a Joint Motion for Summary Hearing on January 27, 2009.

The undersigned issued an Order Granting Summary Hearing on

January 29, 2009.

During the hearing, the parties offered one joint Exhibit,

JE1, which was accepted as evidence. The joint Exhibit

contained stipulated facts.

Petitioner testified on her own behalf and presented the

testimony of one additional witness. Petitioner offered one

composite Exhibit, P1, containing 92 pages as evidence. Pages

1-34 and 37-73 of the composite Exhibit were accepted as

evidence. Pages 35-36 and 74-92 of the composite Exhibit are

hereby excluded because the material is unauthenticated,

irrelevant, unsupported hearsay, and/or inappropriate material

for official recognition.

Respondent presented the testimony of three witnesses.

Respondent offered ten Exhibits, R1-R10, which were accepted as

evidence.

Before the hearing adjourned, the parties agreed to file

their proposed orders no later than 30 days after the filing of

the hearing transcript. The court reporter filed the hearing

transcript on April 14, 2009. Therefore, the parties' proposed

orders were due to be filed on May 14, 2009.

Petitioner filed a proposed order on May 12, 2009.

According to the records of the Clerk of the Division of

Administrative Hearings, Respondent first attempted to file a

proposed order by facsimile transmission beginning at 4:51 p.m.

on May 14, 2009. The Clerk's office had received five pages of

the proposed order by 4:53 p.m. At 4:57 p.m., Respondent began

to file 12 pages of its proposed order by facsimile

transmission. The Clerk's office received the last of the 12

pages at 5:01:46 p.m.

At 8:20 a.m., on May 15, 2009, Petitioner filed an

Objection to Late Filing by Respondent. Petitioner objected

that Respondent had not filed its proposed order before

5:00 p.m., on May 14, 2009.

At 11:41 a.m. on May 15, 2009, Respondent again faxed its

proposed order, in its entirety, to the Division of

Administrative Hearings.

On May 19, 2009, Petitioner filed a second Objection to

Late Filing by Respondent. That same day, Respondent filed a

Response to Petitioner's Objection to Late Filing by Respondent.

On May 20, 2009, Petitioner filed an Amendment to Objection

Dated May 14, 2009.

Petitioner correctly asserts that Respondent's proposed

order was untimely because it was not received in its entirety

by 5:00 p.m., on May 14, 2009. However, it appears that

Petitioner made a good faith effort to comply with Florida

Administrative Code Rule 28-106.204. Additionally, it does not

appear that Petitioner has suffered any undue prejudice.

Therefore, Petitioner's request to strike Respondent's proposed

order is hereby denied.

FINDINGS OF FACT

1. Petitioner began her employment with Respondent on

December 12, 2007. Respondent hired her as a full-time library

clerk at the Green Cove Springs Library. Respondent paid

Petitioner at the rate of $8.4250 per hour.

2. Respondent provided Petitioner with paid annual and

sick leave benefits. She began accruing these benefits

immediately upon the start of her employment. Petitioner was

able to use accrued paid leave after completing an introductory

ninety-day probationary period. Respondent also paid for the

entire cost of Petitioner's health insurance premium in the

approximate amount of $448 per month.

3. Petitioner received a copy of her job description when

she began her employment. As a library clerk, Petitioner was

responsible for the following functions: (a) assisting patrons;

(b) administering the circulation of library materials;

(c) tracking inventory; (d) processing inter-library loan

requests; (e) retrieving and shelving books; (f) processing

payments for lost or overdue materials; and (g) assisting with

library programming. Petitioner's job description indicates

that regular attendance is an essential function of the library

clerk position.

4. Early in April 2008, Petitioner was informed of an

abnormality on her lung. Petitioner was hospitalized for

further examination. The last day that Petitioner reported to

work was April 4, 2008.

5. Lana Helms was Petitioner's immediate supervisor.

Petitioner kept Ms. Helms informed about her illness on a weekly

basis.

6. Because Petitioner had not worked as a library clerk

long enough to accrue substantial paid leave, she exhausted her

paid leave on April 10, 2008. On or about April 14, 2008,

Petitioner was diagnosed with cancer.

7. On or about April 28, 2008, Respondent's Human Resource

Director, Richard O'Connell, directed Jennifer Bethelmy,

Respondent's Human Resource Coordinator, to contact Petitioner

by telephone and request medical documentation regarding

Petitioner's condition.

8. When Ms. Bethelmy called, Petitioner understood that

Respondent would cancel her insurance unless Respondent received

a letter from her physician immediately. Petitioner replied

that she had made several prior similar requests of the

oncologist and would do so again.

9. On April 28, 2008, Respondent received a letter from

Petitioner's physician. The letter stated as follows:

Mrs. Sullivan is a patient of mine that has

been recently diagnosed with metastatic lung

cancer with involvement of the brain. This

disease is considered incurable. She will

be treated with daily radiation therapy to

the lung and brain and she will also receive

systemic chemotherapy. The radiation

treatments are on an average six weeks long

and the chemotherapy is initially given

every week for the first several weeks then

every three weeks. The chemotherapy

treatments are expected to last between four

to six months.

For additional information please feel free

to contact my office.

Respondent never contacted Petitioner or her doctor to determine

whether Petitioner would be able to work at least part-time

during or between her cancer treatments.

10. Even though Petitioner was not entitled to additional

leave after April 10, 2008, Respondent provided her with unpaid

leave from April 11, 2008, through May 10, 2008. Respondent

also gratuitously paid for Petitioner's health insurance for the

month of May 2008.

11. Mr. O'Connell's decision to terminate Petitioner was

based in part on the physician's letter. Mr. O'Connell also

based his decision on his understanding of the following:

(a) Petitioner's cancer was incurable; (b) Petitioner would not

be able to return to work at a set time in the future, if ever;

and (c) Respondent needed to fill Petitioner's position.

12. In a letter dated May 5, 2008, Mr. O'Connell advised

Petitioner as follows:

Due to a medical condition, you have not

been able to work at your assigned position

at the Green Cove Springs Library since

April 4th, 2008. Since April 11th, 2008,

you have been on leave without pay status,

having exhausted all accrued leave.

It is our understanding that you will not be

released to return to full duty in the near

future. While it is unfortunate that your

condition does not allow you to work, the

County must maintain a workforce to

sufficiently serve the public. As you are

not eligible to apply for Family Medical

Leave or a Leave of Absence due to your hire

date of December 12th, 2007, the County will

terminate your employment effective

May 10th, 2008.

You will receive notification in the mail of

your eligibility to continue medical

coverage through COBRA.

Petitioner received this letter on May 8, 2008.

13. At the time of Petitioner's termination, Respondent

was under a "soft" or "selective" hiring freeze due to financial

difficulties. Thus, when Mr. O'Connell sought the permission of

County Manager Fritz Behring to fill Petitioner's position,

Mr. Behring denied the request based on fiscal constraints.

14. In a letter dated May 20, 2008, Petitioner responded

to Mr. O'Connell's termination letter. She requested a

reconsideration of the termination, a grievance committee

hearing, and an exit interview.

15. Petitioner also prepared a written complaint directed

to the grievance board members. In that letter, Petitioner

detailed her medical condition and treatment. She made it clear

that returning to work at the public library during treatment

with radiation and chemotherapy would not be in her best

interest because her immune system was vulnerable.

16. Petitioner's May 20, 2008, complaint indicated that

Petitioner's treatment was going better than expected.

Petitioner requested a modification to Respondent's personnel

policies to allow a reasonable amount of time for employees with

a serious illness, who are not eligible for a leave of absence,

to seek medical help and return to work. Petitioner requested

reinstatement of her employment in a leave without pay status.

Petitioner did not request that Respondent continue to pay her

insurance premium.

17. In a letter dated May 30, 2008, Respondent's counsel

addressed Petitioner's May 20, 2008, correspondence. The letter

advised Petitioner that pursuant to Respondent's Grievance

Procedure, Policy No. 10.01, the grievance procedure is not

available for suspensions or dismissals.

18. The May 30, 2008, letter stated that when Petitioner

was terminated, it was uncertain whether Petitioner's position

would be impacted by the hiring freeze. According to the

letter, Respondent had not filled the position but that decision

might change.

19. The May 30, 2008, letter advised Petitioner that an

exit interview would not take place. Instead, Petitioner would

receive an exit survey via mail.

20. Finally, the May 30, 2008, letter denied Petitioner's

request to be placed on an unpaid leave of absence with

continuing medical benefits. Petitioner was advised that she

remained eligible for rehire if she became able to work. The

letter invited Petitioner to apply for any vacancies for which

she was minimally qualified.

21. In a letter dated June 3, 2008, Petitioner provided

Mr. Behring with her response to the May 30, 2008, letter.

Primarily, Petitioner found fault with Respondent's policies and

procedures that she believed failed to address her particular

circumstances, i.e., the right to be placed on a leave without

pay status until well enough to resume employment.

22. Petitioner's June 3, 2008, letter included the

following statement: "Also, to perform my essential functions

would constitute a direct threat to my health, safety and

possibly impede the progress of success. These [cancer]

treatments are horrible ! Why would anyone sane risk prolonging

them?"

23. On or about August 1, 2008, Respondent advertised a

job vacancy for a part-time library clerk. The advertisement

was an in-house posting for the job. It was not made available

to the public until August 6, 2008.

24. In a letter dated August 15, 2008, Mr. O'Connell

advised Petitioner that he had received a requisition from the

library director and approval by Mr. Behring to fill a full-time

library clerk position. Mr. O'Connell unconditionally offered

to rehire Petitioner in this position if her medical condition

would allow her to perform the duties of a full-time library

clerk. Petitioner did not respond to Respondent's August 15,

2008, offer.

25. On August 26, 2008, Respondent posted an in-house

advertisement for a full-time library clerk. The posting became

available to the public on August 31, 2008. Petitioner did not

inquire about the job and has never contacted Respondent to

discuss any vacancies.

26. Petitioner applied for short-term disability benefits

and has received such benefits since December 2008. Petitioner

receives about $900 per month in benefits.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.569, 120.57(1), and 760.11,

Florida Statutes (2008).

28. In Florida, claims of disability-based discrimination

arising under the Florida Civil Rights Act of 1992 (FCRA),

Part 1, Chapter 760, Florida Statutes (2008), are construed in

conformity with the provisions of the Americans with

Disabilities Act (ADA), 42 U.S.C. Section 12101, et seq. and its

related regulations. See Greene v. Seminole Electric

Cooperative, Inc. , 701 So. 2d 646, 647 (Fla. 5th DCA 1997),

citing Brand v. Florida Power Corp. , 633 So. 2d 504, 509-510

(Fla. 1st DCA 1995).

29. The ADA was recently amended to substantially change

the evaluation of ADA claims and the definition of "disability"

under the ADA. See ADA Amendments Act of 2008, Pub. L. No. 110-

325, 122 Stat. 3553 (2008). The ADA Amendments Act expressly

provides that its provisions shall not take effect until

January 1, 2009. As such, all citations to law and

corresponding discussions reference the law in effect during the

time of Petitioner's employment, prior to January 1, 2009.

30. Petitioner has not provided any direct evidence of

disability-based discrimination. Therefore, she must establish

a prima facie case of discrimination under the FCRA and ADA by

showing the following: (a) she has a disability; (b) she is a

qualified individual; (c) she was unlawfully discriminated

against because of her disability. See Reed v. Heil Co. , 206

F.3d 1055, 1061 (11th Cir. 2000).

31. If Petitioner establishes a prima facie case, the

burden of production shifts to Respondent to articulate some

legitimate, nondiscriminatory reason for its action. See

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

Should Respondent articulate such a reason, the burden shifts

back to Petitioner to show that the reason is a pretext for

discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S.

at 803.

32. At 42 U.S.C. Section 12102, the ADA defines a

"disability" as follows in pertinent part:

As used in this Act:

(1) Disability. The term "disability"

means, with respect to an individual--

(A) a physical or mental impairment

that substantially limits one or more major

life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment (as described in paragraph (3)).

(2) Major life activities.

(A) In general. For purposes of

paragraph (1), major life activities

include, but are not limited to, caring for

oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking,

standing, lifting, bending, speaking,

breathing, learning, reading, concentrating,

thinking, communicating, and working.

(B) Major bodily functions. For

purposes of paragraph (1), a major life

activity also includes the operation of a

major bodily function, including but not

limited to, functions of the immune system,

normal cell growth, digestive, bowel,

bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive

functions.

(3) Regarded as having such an

impairment. For purposes of paragraph

(1)(C):

(A) An individual meets the

requirement of "being regarded as having

such an impairment" if the individual

establishes that he or she has been

subjected to an action prohibited under this

Act because of an actual or perceived

physical or mental impairment whether or not

the impairment limits or is perceived to

limit a major life activity.

(B) Paragraph (1)(C) shall not apply

to impairments that are transitory and

minor. A transitory impairment is an

impairment with an actual or expected

duration of 6 months or less.

(4) Rules of construction regarding the

definition of disability. The definition of

"disability" in paragraph (1) shall be

construed in accordance with the following:

(A) The definition of disability in

this Act shall be construed in favor of

broad coverage of individuals under this

Act, to the maximum extent permitted by the

terms of this Act.

(B) The term "substantially limits"

shall be interpreted consistently with the

findings and purposes of the ADA Amendments

Act of 2008.

(C) An impairment that substantially

limits one major life activity need not

limit other major life activities in order

to be considered a disability.

(D) An impairment that is episodic or

in remission is a disability if it would

substantially limit a major life activity

when active.

33. The greater weight of the evidence indicates that

Respondent believed Petitioner's cancer was incurable and that

she would not be able to work in the foreseeable future, if

ever. Therefore, Petitioner established the first prong of her

prima facie case because Respondent perceived her as having a

disability. See 42 U.S.C. § 12102(1)(c).

34. Regarding the second prong of the prima facie case,

Petitioner testified that she was able to return to work in mid-

May. Her testimony in this regard is contradicted by her

statements in letters that she was unable to work. However,

Petitioner's testimony together with consideration of

Respondent's failure to ever discuss the possibility of some

reasonable accommodation is sufficient to establish that she was

a "qualified individual with a disability." The ADA defines

such an individual as "an individual who, with or without a

reasonable accommodation, can perform the essential functions of

the employment position that such person holds or desires." See

42 U.S.C. § 12111(8).

35. Petitioner fails to prove the third prong of her prima

facie case. It is undisputed that Petitioner's circumstances

did not fall within any policy providing for unpaid leave. Even

so, Petitioner did not show that Respondent treated her

differently than any other similarly situated employees without

a disability. No employees requesting indefinite leave without

pay for whatever reason were treated more favorably than

Petitioner. Likewise, Respondent treated Petitioner the same as

any other employee with respect to the process used for an exit

interview and the availability of the grievance procedure.

36. On the other hand, Respondent articulated a

legitimate, non-discriminatory reason for its decision.

Respondent terminated Petitioner because she had used her

accumulated leave with pay, she could not say exactly when she

would be able to return to work, if at all, and her position at

the library needed to be filled.

37. Petitioner did not prove that Respondent's reason for

terminating her was really a pretext for discrimination. In

early May 2008, Mr. O'Connell believed that Respondent needed a

full-time library clerk who could attend work on a regular

basis. An "employer may lawfully fire an employee for a good

reason, a bad reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason." See Abel v. Dubberly , 210 F.3d 1334, 1339 n.5 (11th

Cir. 2000), citing Nix v. WLCY Radio/Rahall Communications , 738

F.2d 1181 (11th Cir. 1984).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED the Petition for Relief is dismissed with

prejudice.

DONE AND ORDERED this 11th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 11th day of June, 2009.

COPIES FURNISHED :

Gaither Logan Saunders, U.S. Army, EO (RET)

1640B Vineland Circle

Fleming Island, Florida 32003

Margaret Zabijaka, Esquire

Lori K. Mans, Esquire

Constangy, Brooks, and Smith

200 West Forsyth Street, Suite 1700

Jacksonville, Florida 32202

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.