09-004005 Cheryl Mask-Brockman vs. Florida State University Status: Closed Recommended Order on Tuesday, December 22, 2009.

Summary: Petitioner did not prove that Respondent discriminated against her based on an alleged disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL MASK-BROCKMAN, )

)

Petitioner, )

)

vs. ) Case No. 09-4005

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 21,

2009, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Cheryl Mask-Brockman, pro se

536 West 5th Avenue

Tallahassee, Florida 32303

For Respondent: Brian F. McGrail, Esquire

Florida State University

424 Wescott Building

222 South Copeland Street

Tallahassee, Florida 32306

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based

on an alleged disability.

PRELIMINARY STATEMENT

On February 3, 2009, Petitioner Cheryl Mask-Brockman

(Petitioner) filed an Employment Complaint of Discrimination

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

complaint alleged that Respondent Florida State University

(Respondent) had discriminated against Petitioner by harassing

her and subjecting her to a hostile work environment that

resulted in a constructive discharge based on an alleged

disability, carpel tunnel of the wrist.

On June 24, 2009, FCHR issued a Determination: No Cause.

On July 23, 2009, Petitioner filed a Petition for Relief.

FCHR referred the case to the Division of Administrative

Hearings on July 24, 2009.

A Notice of Hearing dated August 12, 2009, scheduled the

hearing for September 1, 2009.

On August 31, 2009, the parties filed a Joint Motion for

Continuance. That same day, the undersigned issued an Order

Granting Continuance.

On September 30, 2009, the parties filed a Case Status

Report. On October 1, 2009, the parties filed an Amended Case

Status Report.

On October 5, 2009, the undersigned issued a Notice of

Hearing. The notice scheduled the hearing for October 21, 2009.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of two witnesses. Petitioner

offered 16 exhibits that were received into evidence.

Respondent presented the testimony of seven witnesses.

Respondent offered eight exhibits that were received into

evidence.

A hearing Transcript was filed with the Division of

Administrative Hearings on November 4, 2009. Respondent timely

filed its Proposed Recommended Order on November 16, 2009.

Petitioner filed an untimely Proposed Recommended Order on

November 25, 2009. Respondent filed a Motion to Strike

Petitioner's Proposed Recommended Order on November 30, 2009.

The undersigned issued an Order granting the motion on

December 2, 2009.

Petitioner filed a Motion to Move Forward on December 2,

2009. The undersigned issued an Amended Order on December 7,

2009, confirming that Respondent's Motion to Strike was granted.

FINDINGS OF FACT

1. Respondent is a Carnegie I residential and

coeducational university of approximately 40,000 students and

over 13,000 full and part-time faculty and staff located in

Tallahassee, Florida.

2. The Office of Financial Aid (OFA) is responsible for

the overall administration of student financial aid, including

federal, state, and institutional financial aid. Of the

approximate 40,000 students, 25,000 on average receive some form

of financial aid in the amount of approximately $300 million

dollars per year.

3. OFA hired Petitioner on August 7, 1990, as a secretary.

Thereafter, Petitioner worked for OFA for almost 18 years.

4. During her 18 years of employment, Petitioner resigned

from OFA on three occasions. She resigned in 1996 and again in

2006, only to be rehired by the same OFA Director each time.

Petitioner submitted her third resignation and notice of

retirement on September 19, 2008, effective September 30, 2008.

5. With one exception, Petitioner did not make Respondent

aware of any complaints or allegations of unfair treatment prior

to her ultimate retirement from OFA. She never complained to

anyone that she was being stalked, monitored, or overworked more

than her co-workers. She did complain on one occasion that

Joann Clark, OFA's Assistant Director, was walking by her

office/work station and knocking on the wall/desk/counter.

6. All new employees receive Respondent's policies and

procedures relative to retirement and employee benefits

eligibility. The policies and procedures include sections on

the Americans with Disability Act (ADA), Family Medical Leave

Act (FMLA) and Workers' Compensation (WC).

7. On July 13, 2005, Petitioner had surgery for carpel

tunnel of the wrist. Petitioner did not inform her immediate

supervisor of the scheduled surgery until July 12, 2005, even

though Petitioner's doctor scheduled the surgery on June 13,

2005.

8. On July 12, 2005, Petitioner's supervisor was Lassandra

Alexander. Ms. Alexander provided Petitioner with copies of,

ADA, FMLA, and WC forms and reviewed them with her as soon as

Ms. Alexander became aware of the surgery scheduled for the next

day. Petitioner told Ms. Alexander that she was not going to

worry about applying for an accommodation under the ADA, for

leave under FMLA, or WC benefits.

9. Petitioner failed to timely file for WC in July 2005.

She was not eligible to receive Workers' Compensation benefits

because she did not comply with the proper protocol and

procedures.

10. Petitioner returned to work on August 29, 2005, with a

doctor's statement recommending her for "light duty." On

September 23, 2005, Petitioner presented a doctor's statement

recommending her to work half time, four days a week.

11. Respondent complied with the doctor's recommendations.

Respondent divided Petitioner's work among other co-workers and

also allowed Petitioner to take breaks as needed.

12. On October 26, 2005, Petitioner presented a doctor's

statement, allowing her to return to work full time. After

October 26, 2005, Petitioner never submitted any further medical

documentation to indicate that she had continuing work

restrictions.

13. After October 26, 2005, Petitioner did not formally

request an accommodation or furnish medical documentation

indicating a need for an accommodation. Even so, Respondent

continued to provide Petitioner with support and assistance as

requested.

14. On July 25, 2008, Petitioner signed a letter

confirming her appointment to a full-time position. That same

day, Petitioner signed a Memorandum of Understanding that

advised her about the FMLA, Respondent's Sexual Harassment and

Non-discrimination Policies, and Respondent's Workers'

Compensation Program Guidelines. Petitioner's testimony that

she never received copies of these documents and that she was

unaware of benefits and eligibility forms at any time during her

several hires by OFA is not persuasive.

15. There is no competent evidence that Petitioner was

substantially limited in performing the essential functions of

her job or that she suffered from a disability as defined by the

ADA after October 2005. Additionally, Petitioner never informed

her supervisors of an alleged on-going disability and never

provided medical certification to substantiate her current

allegations. Therefore, it is clear that Petitioner's co-

workers and supervisors did not regard her as having an

impairment.

16. Petitioner's work evaluations for her entire 18-year

employment with OFS were above standards. Petitioner's

supervisors valued her work ethic and production in the office.

17. The greater weight of the evidence indicates that

Respondent's staff did not intentionally discriminate against

Petitioner. They did not harass Petitioner by any means,

including stalking her, excessively monitoring her work habits,

isolating her to her office, giving her more work than her co-

workers, tampering with her office computer, refusing to

investigate her allegations of vandalism to her car in the

parking lot, and refusing to give her a new office chair and

computer mouse that she requested on an office "wish list."

Petitioner's testimony to the contrary is not credible.

18. At some point in time, Petitioner complained to Willie

Wideman, OFA's Associate Director, that Assistant Director

Joanne Clark was knocking on the wall to her

office/workspace/counter. Mr. Wideman spoke to Ms. Clark,

determining there was no validity to Petitioner's allegations.

19. Petitioner also complained to her friend and co-

worker, Joann Smith, that she was irritated because people were

knocking on her counter. Ms. Smith admitted she had knocked on

Petitioner's counter as a means of friendly communication, a way

to say hello in passing. Later, Ms. Smith became aware of the

"no knocking" sign on Petitioner's desk.

20. Petitioner's two letters of resignation and her notice

of retirement clearly demonstrate that she did not perceive any

discrimination, harassment or hostile work environment from her

fellow employees or supervisors. All of Petitioner's colleagues

were shocked when they learned about Petitioner's complaint and

read the allegations.

CONCLUSIONS OF LAW

21. The Division of administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Florida Statutes (2009).

22. Section 760.10(1)(a), Florida Statutes, provides that

it is unlawful for an employer to discriminate against any

individual based on such individual's handicap.

23. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes (2008), as amended, was

patterned after Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000 et seq. Disability discrimination claims

brought pursuant to the FCRA are analyzed under the same

framework as claims brought pursuant to the Americans with

Disabilities Act of 1990, as amended, 42 U.S.C. Section 12101 et

seq. (ADA). See Sicilia v. United Parcel Srvs., Inc. , 279 Fed.

App'x 936, 938 (11th Cir. 2008).

24. Petitioner has the initial and ultimate burden of

proving intentional discrimination by a preponderance of the

evidence. See McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), and St. Mary's Honor Center, et al. v. Hicks , 509 U.S.

502 (1993).

Harassment and Hostile Work Environment

25. To prove a prima facie case of discrimination by

harassment or the creation of a hostile work environment, based

on an alleged handicap or disability, Petitioner must show the

following: (a) she is a qualified individual with a disability

under the ADA; (b) she was subject to unwelcome harassment or a

hostile work environment; (c) the harassment or hostile work

environment was sufficiently severe or pervasive to alter her

working conditions and create an abusive environment; and

(d) Respondent knew or should have known of the harassment or

hostile work environment, failed to correct the problem, and

therefore is liable under a theory of direct or vicarious

liability. See Razner v. Wellington Regional Medical Center,

Inc. , 837 So. 2d 437 (Fla. 4th DCA 2002); Miller v. Kenworth of

Dothan Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002).

26. A disability is a "physical or mental impairment that

substantially limits one or more of the major life activities of

[an] individual." See 42 U.S.C. § 12102(2)(A). Major life

activities include "functions, such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." See 29 C.F.R. § 1630.2(i).

Moreover, to be substantially limited, a person must be either

unable to perform a major life function or be "significantly

restricted as to the condition, manner or duration" under which

the individual can perform a particular function, as compared to

the average person in the general population. See 29 C.F.R.

§ 1630.2(j). Any determination of a disability must take into

account any remedial measures, such as medication or surgery

that correct the impairment. See Sutton v. United Air Lines,

Inc. 527 U.S. 471 (1999).

27. To prove a harassment claim, Petitioner must show that

she subjectively perceived the harassment to be severe or

pervasive, and that objectively, a reasonable person in her

position would consider the harassment likewise. See Johnson v.

Booker T. Washington Broadcasting Service, Inc. , 234 F.3d 501,

509 (11th Cir. 2000). The objective prong of the test requires

consideration of the following four factors: (a) the frequency

of the conduct; (b) the severity of the conduct; (c) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance; and (d) whether the conduct unreasonably

interferes with the employee's job performance. Mendoza v.

Borden, Inc. , 195 F.3d 1238 (11th Cir. 1999).

28. The conduct at issue must be so extreme as to "amount

to a change in terms and condition of employment." See Faragher

v. City of Boca Raton , 524 U.S. 775, 788 (1998).

29. In this case, Petitioner did not prove that she was

handicapped or disabled or that Respondent's staff perceived her

as being disabled. Petitioner was not subjected to unwelcome

harassment; however, to the extent Petitioner erroneously

believed her co-workers were picking on her by knocking on her

wall/counter, such alleged behavior was not based on

Petitioner's purported disability and was not sufficiently

severe or pervasive to alter her working conditions and create a

hostile environment.

30. Finally, Petitioner complained to Respondent about the

knocking and put up a sign saying "no knocking." Respondent

performed an appropriate investigation and found no merit to

Petitioner's allegations. The only person who knocked on

Petitioner's counter before Petitioner posted her sign was her

good friend, Ms. Smith.

31. Petitioner has not met her initial or ultimate burden

of proving that Respondent intentionally discriminated against

her by harassing her and creating a hostile work environment

because she was disabled. Petitioner did not establish a single

act or pattern of conduct by Respondent's staff that was

intentionally discriminatory. She did not show by competent

evidence that she was disabled or that Respondent's staff

perceived her as such.

Constructive Discharge

32. Because Petitioner failed to demonstrate

discrimination by harassment or a hostile work environment, she

cannot meet the threshold requirement to demonstrate

constructive discharge, i.e. that the work conditions were so

intolerable that a reasonable person under the same

circumstances would feel compelled to resign. A claim of

discrimination resulting in constructive discharge requires

proof, under an objective standard, that the employer, by its

illegal discriminatory acts, made working conditions so

difficult that a reasonable person in the employee's position

would feel compelled to resign. See McCaw Cellular

Communications of Florida, Inc. v. Kwiatek , 763 So. 2d 1063

(Fla. 4th DCA 1999), citing Steele v. Offshore Shipbuilding,

Inc. , 867 F.2d 11311, 1317 (11th Cir. 1989).

33. Petitioner's employment record does not support a

claim. Instead the record shows that Darryl Marshall, Director

of OFA, had an open door policy toward all of OFA's employees.

There is no evidence that OFA turned down a request made by

Petitioner over an 18-year employment relationship.

34. During that 18-year time frame, Petitioner resigned

from OFA on two occasions, only to be rehired by Mr. Marshall.

In September 2008, Petitioner announced her "retirement" and is

currently receiving retirement benefits. Petitioner's letters

of resignation express a cordial and collegial relationship with

her co-workers and supervisors. Moreover, Petitioner's

performance evaluations over the years clearly indicate that her

services were highly valued by OFA.

RECOMMENDATION

Based on 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.

DONE AND ENTERED this 22nd day of December, 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 22nd day of December, 2009.

COPIES FURNISHED :

Cheryl Mask-Brockman

536 West 5th Avenue

Tallahassee, Florida 32303

Brian F. McGrail, Esquire

Florida State University

424 Wescott Building

222 South Copeland Street

Tallahassee, Florida 32306

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.