09-005970 Lorraine Supergan vs. Chep Usa Status: Closed Recommended Order on Monday, May 17, 2010.

Summary: Employee wanted an accomodation of working from home, but not all of her essential job functions could be performed from home. Employee was not a qualified individual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORRAINE SUPERGAN, )

)

Petitioner, )

)

vs. ) Case No. 09-5970

)

CHEP USA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 18, 2010, in Orlando, Florida, and March 5, 2010, in

Orlando and Tallahassee, Florida, by video teleconference,

before Susan B. Harrell, a designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lorraine Supergan, pro se

5564 Sassparilla Lane

Orlando, Florida 32821

For Respondent: Tracey L. Ellerson, Esquire

Baker & Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802-0112

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner based on an alleged disability

in violation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

On April 6, 2009, Petitioner, Lorraine Supergan

(Ms. Supergan), filed a Charge of Discrimination, alleging that

Respondent, CHEP USA (CHEP), had discriminated against her based

on her disability. On September 18, 2009, the Florida

Commission on Human Relations (Commission) issued a Notice of

Determination: No Cause, stating that the Commission had

determined that no reasonable cause existed to believe that an

unlawful employment practice had occurred.

On October 23, 2009, Ms. Supergan filed a Petition for

Relief (Petition), alleging that CHEP had committed an unlawful

employment practice by discriminating against her based on her

disability. The Petition was forwarded to the Division of

Administrative Hearings on October 28, 2009, for assignment to

an Administrative Law Judge. The case was originally assigned

to Administrative Law Judge R.B. McKibben, but was transferred

to Administrative Law Judge Susan B. Harrell to conduct the

final hearing.

The final hearing commenced on February 18, 2010; did not

conclude on that date; and was resumed on March 5, 2010. At the

final hearing, Ms. Supergan testified in her own behalf.

Petitioner’s Exhibits 1 through 4, 9, 10, 12, 13, and 14 were

admitted into evidence. Petitioner’s Exhibits 5 through 8 were

not admitted into evidence. Petitioner’s Exhibits 11 and 15 are

demonstrative exhibits.

At the final hearing, CHEP called the following witnesses:

Thomasina Kennedy, Arren Quilal-Lan, and Bruce Zimmerman.

Respondent’s Exhibits 1 through 3, 5, 8, 12 through 14, 16

through 18, 20 through 23, 27, 34 through 36, 38 through 43, 45,

47, 49, 50, 52, 54, 55, 57, 59, 60, 62, 66, and 68 were admitted

into evidence.

The two-volume Transcript was filed on April 10, 2010. The

parties agreed to file their proposed recommended orders within

ten days of the filing of the Transcript. The parties timely

filed their proposed recommended orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Supergan was employed by CHEP from January 1, 1999,

to July 2, 2009, as a financial analyst.

2. CHEP is a pallet pooling business. CHEP leases wooden

pallets to manufacturers and manages the supply chain.

3. In October 2008, Ms. Supergan was assigned to the

Information Services (IS) Department at CHEP’s headquarters in

Orlando, Florida. The IS Department had several teams and

subteams, including the sourcing team. 1 Ms. Supergan was

assigned to the sourcing team and remained there until the

termination of her employment.

4. In October 2008, Bruce Zimmerman was assigned to manage

three teams in the IS Department at CHEP. One of the teams was

the sourcing team. The IS sourcing team had three members,

Ms. Supergan, Gloria Ruiz, and Chastity Lamm. When

Mr. Zimmerman began managing the recently-formed sourcing team,

each of the team members performed a particular function of the

work assigned to the team.

5. Mr. Zimmerman’s responsibility in managing the sourcing

team was to define the roles of the team members and to build a

cohesive unit to work together. He wanted to develop a cross-

functional team so that each team member could cover for the

other team members. His goal was to have the team members

cross-trained so that each team member understood all aspects of

the work of the sourcing team. In order to achieve a cross-

functional team, Mr. Zimmerman observed and worked with the team

members so that he could understand the different processes that

made up the work of the sourcing team.

6. Beginning in October 2008, Ms. Supergan’s job

responsibilities included processing and tracking various IS

invoices, purchasing hardware and software, and preparing a

variety of financial reports. As of the date of the termination

of Ms. Supergan’s employment, her job descriptions included the

following essential functions:

Prepares ad hoc financial and management

reporting analysis as needed and seeks out

new reporting needs and methods.

Reviews all posted expense and CAPEX charges

to ensure GL code compliance. Works with

Finance to reassign incorrectly assigned

items.

Performs audits to ensure forecast variance

is understood.

Assists IS Leadership with budget issues,

forecasts, or analytical requests.

Assists the IS Financial Analyst to complete

and improve monthly financial reporting and

management reviews.

Maintains documentation of all department

finance and purchasing processes.

Performs other duties as needed.

7. Ms. Supergan processed the majority of the 75-to-100

invoices received from vendors in the United States (U.S.) each

month. Invoices would arrive daily. Approximately 90 percent

of these invoices were received in paper form. However, some of

the invoices, which arrived in paper form, were available

electronically in 2009, but approximately 20-to-30 invoices were

not. Ms. Supergan would review the invoices and code or assign

them to their proper cost center. If the invoices had incorrect

cost centers listed, Ms. Supergan was responsible for correcting

the errors. Once Ms. Supergan completed the processing of the

invoices, she presented the invoices to her supervisor for

approval and signature. After her supervisor signed off on the

invoices, Ms. Supergan delivered the invoices to accounts

payable for payment.

8. The processing of the U.S. invoices could not be done

at home because many of the invoices were in paper form. In

order to process the U.S. invoices at home, CHEP would have to

hand-deliver the invoices to Ms. Supergan and pick the invoices

up when she completed the processing. Someone, other than

Ms. Supergan, would have to deliver the processed invoices to

Ms. Supergan’s supervisor for approval and signature and then

deliver the approved and signed invoices to accounts payable.

Ms. Supergan suggested that the invoices could be scanned and

sent to her at home via e-mail. However, someone other than

Ms. Supergan would have to scan the e-mails, retrieve the

processed invoices from e-mail, take the processed invoices to

the supervisor for approval and signature, and then take the

approved and signed invoices to accounts payable for payment.

In other words, someone other than Ms. Supergan would be

performing Ms. Supergan’s job functions.

9. Ms. Supergan also processed some of the European

telephone invoices. The processing of the European invoices

could be done electronically because CHEP’s European counterpart

used a special software system, which was unavailable to CHEP in

processing U.S. invoices.

10. Part of Ms. Supergan’s job responsibilities included

purchasing hardware and software for the IS Department.

Although Ms. Supergan did not perform this function as often as

she did the processing of the U.S. invoices, she was expected to

be able to purchase hardware and software when needed. This job

responsibility included receiving requisitions from CHEP

employees. Some of the requisitions were sent by e-mail, but

many times the requisitions would be received in a paper format.

The purchased hardware and software would be received by CHEP

employees along with a packing slip, which would be forwarded to

Ms. Supergan so that she could verify and ensure that the

employee properly received what had been ordered. Ms. Supergan

was responsible for filing the packing slips for accounting and

tracking purposes. The function of purchasing hardware and

software could not be done at home without having someone either

physically taking the paperwork to Ms. Supergan, returning the

paperwork to CHEP, and filing the paperwork or having someone

scanning the paperwork, e-mailing it to Ms. Supergan, receiving

an e-mail from Ms. Supergan, and filing the returned paperwork.

Either way, Ms. Supergan would not be fulfilling her job

responsibilities.

11. Ms. Supergan’s job responsibilities included preparing

a variety of financial reports for the larger infrastructure

team. Some of the information that she would need to complete

these reports was available in electronic form, but some of the

information was not. In order to complete the reports,

Ms. Supergan needed access to persons within CHEP and paper

invoices, contracts, and purchase orders, which were maintained

at CHEP. Part of Ms. Supergan’s duties included meeting, in

person, with a variety of infrastructure managers and directors

to review these financial reports. The preparation of the

financial reports required Ms. Supergan to be physically present

at CHEP’s office.

12. From January 2008 to July 2009, Ms. Supergan

experienced severe infections, including Methicillin-resistant

Staphlyococcus aureus (MRSA). Ms. Supergan contends that the

infections are a result of a low white blood count. There was

no competent medical evidence to support her contention, but

there is ample evidence to establish that she suffered from

severe infections while employed at CHEP, and which affected her

working.

13. CHEP had three policies potentially applicable to

Ms. Supergan’s medical condition: a Family and Medical Leave

Act (FMLA) Policy, a Short-Term Disability (STD) Policy, and a

Disability Policy.

14. Under CHEP’s FMLA Policy, qualified employees seeking

FMLA leave would submit their requests to Morneau Sobeco

(Morneau), a third-party that administered CHEP’s Benefit

Center. Upon receipt of such requests, Morneau analyzed the

requests and determined whether the employees were eligible for

FMLA leave. Although Morneau kept CHEP’s Human Resources (HR)

Department apprised of an employee’s FMLA status, Morneau did

not forward the employee’s request for FMLA leave or any other

paperwork it may have obtained from the employee or the

employee’s healthcare provider to HR.

15. Under CHEP’s STD Policy, qualified employees seeking

STD benefits submitted their requests and necessary paperwork to

Morneau, who delivered the paperwork to The Prudential Insurance

Company of America (Prudential), CHEP’s third-party STD carrier.

After Prudential received the paperwork, it worked directly with

the CHEP employee and the employee’s healthcare provider to

determine whether the employee was eligible for healthcare

benefits. Prudential did not submit the employee’s paperwork to

CHEP. In Ms. Supergan’s case, she did not sign a release

allowing Prudential to advise CHEP of her medical information.

16. The CHEP Employee Handbook does not specifically speak

to the procedure that an employee is to follow when requesting

an accommodation for a medical condition. The handbook does

state that, if an employee has a question about a particular

policy, the employee may obtain additional information from the

employee’s supervisor or HR. Additionally, Mr. Zimmerman had

referred Ms. Supergan to HR for questions relating to medical

conditions and leave.

17. CHEP’s leave of absence policy, effective May 20,

2008, provides:

The employee is responsible for obtaining

the appropriate medical release and

forwarding the RTW [Return to Work]

paperwork to Morneau Sobeco prior to

returning to work. The employee cannot

return to work without an appropriate

healthcare provider’s release, indicating

that they may return to work. The release

must also indicate any work restrictions or

accommodations.

* * *

Morneau Sobeco is responsible for

communicating to the HRBL [Human Resources

Benefits Liaison] and the Human Resource

Manager (HRM) any work restrictions or

critical issues for the RTW once the

employee has notified them and prior to the

employee coming back to work.

* * *

Prudential will communicate to Morneau

Sobeco any work restrictions or critical

issues and provide any updated information

to the Prudential reports website on changes

to Advice to Pays.

18. Between January 2008 and July 2009, Ms. Supergan

requested and was granted leave on eight separate occasions:

January 5, 2008, to January 28, 2008; February 26, 2008, to

April 14, 2008; June 3, 2008, to June 23, 2008; July 18, 2008,

to August 25, 2008; August 27, 2008, to October 8, 2008,

January 5, 2009, to January 27, 2009; February 27, 2009, to

March 15, 2009; and May 11, 2009, to July 2, 2009. During this

18-month period, Ms. Supergan missed 192 work days, or more than

38 work weeks.

19. Ms. Supergan signed a claimant statement dated

September 24, 2008, and sent it to Prudential for the leave that

she took in July and August 2008. On the claimant statement

form, Ms. Supergan was asked to list any accommodations she felt

would enable her to work. Ms. Supergan replied “work from

home.” CHEP never received this information from either

Prudential or Morneau. No evidence was presented to establish

whether Morneau was aware of the request.

20. Neither Prudential nor Morneau had the authority to

grant requests for accommodations by CHEP’s employees. CHEP’s

HR Department had the authority and was responsible for

determining whether a request for an accommodation could be

granted.

21. At the end of Ms. Supergan’s leave from July 18, 2008,

to August 25, 2008, Ms. Supergan’s physician, Dr. Maach,

released her to return to work. The release stated: “Patient

can go back to work on 8/25/8.” There were no restrictions on

the release and no list of accommodations that would be required

for Ms. Supergan to continue working.

22. Dr. Maach signed another release for Ms. Supergan to

return to work after her leave of absence from August 27, 2008,

to October 8, 2008. The release stated: “Patient can go back

to work on 10/8/8.” Again no restrictions or accommodations

were listed by the physician.

23. On March 9, 2009, Dr. Maach released her to return to

work. The release stated: “Patient is ill & needs time off

[sic] can go back to work 3/16/9.” Ms. Supergan believes that

this form was sent to Morneau. The physician also completed a

Prudential Attending Physician Statement on March 9, 2009,

stating that Ms. Supergan “prefer[s] to work @ home because of

recurrent infection.” CHEP was not given a copy of the

Prudential Attending Physician Statement nor was there any

evidence that Morneau had received the statement. No evidence

was provided to show whether Ms. Supergan had provided Morneau,

as required by CHEP’s leave policy, with a physician statement

that Ms. Supergan could return to work but with limitations or

accommodations.

24. During the latter part of 2008 and the early part of

2009, some disputes arose concerning the payment of

Ms. Supergan’s claims to Prudential and some personal leave

time, which had been deducted from Ms. Supergan’s leave account.

Thomasina Kennedy, who was CHEP’s HR liaison, spoke with

Ms. Supergan during this time period concerning the payment of

claims and leave time, and Ms. Supergan did not mention her

request for an accommodation to Ms. Kennedy during these

discussions.

25. Because of the difficulty in resolving the payment of

claims and leave time issues, Ms. Supergan retained an attorney,

Lee Karina Dani, to get the issues resolved. By letters dated

March 10 and March 17, 2009, Ms. Dani wrote directly to CHEP

concerning the issues, but never discussed a request for an

accommodation to work at home. 2 By letters dated March 24 and

April 27, 2009, Ms. Dani communicated with CHEP’s attorney and

did not discuss a request for an accommodation.

26. On March 25, 2009, Ms. Supergan filed a Charge of

Discrimination with the Commission, alleging that she had

requested and been denied the accommodation of working at home

and that she believed that she had been discriminated against in

violation of the Americans with Disabilities Act.

27. Ms. Supergan contends that she had advised her

supervisor, Mr. Zimmerman, of her need to work at home because

of her medical condition. However, her communications with

Mr. Zimmerman via e-mail do not support her contention. By

e-mail dated May 11, 2009, Ms. Supergan wrote:

As I’m sure you probably know, when I

returned to work this last time it was with

the stipulation that I was to only be

working from home so that I would be

limiting my exposure to other people’s germs

and illnesses. This was never allowed and

now I am sick again . . . makes me pretty

angry if you know what I mean.

28. In response to Ms. Supergan’s May 11th e-mail,

Mr. Zimmerman replied:

Thanks for letting me know but I have never

been aware of your medical conditions and as

far as I am aware this is confidential

information due to US laws. I have copied

Tommie [Kennedy] to keep her informed of

your situation and if any actions need to be

taken.

29. On May 13, 2009, Mr. Zimmerman sent Ms. Supergan an

e-mail which stated:

I am not aware of any detail regarding your

illness nor of any formal request to work

from home. Please can I ask you speak to HR

in this regard.

30. On May 14, 2009, Ms. Supergan sent an e-mail to

Mr. Zimmerman, stating:

While I understand that you have been kept

in the dark about my situation, you are my

boss and need to understand so that you can

staff accordingly.

So, here’s the scoop . . . this is the

second time that the doctor has told you

folks, (via the forms submitted to Morneau

and Prudential) that I should be working

from home. It’s simply about exposure-mine

to the endless bunch of sick folks who come

to work everyday infecting us with their

germs and others by limiting their exposed

[sic] to this nasty MRSA bug. Also, I did

“formally” tell you what the doctor stated

and you answered by saying no to my request.

31. The earliest that CHEP could have been made aware of a

request for an accommodation was the receipt of the March 17,

2009, letter from Ms. Dani to Ms. Kennedy, in which Ms. Dani

attached the Prudential Attending Physician Statement dated

March 9, 2009. Ms. Kennedy did not review the attachments, but

sent them to Prudential. The physician statement did not

contain sufficient information to determine whether working at

home was medically necessary because the physician stated

“prefer to work @ home,” and Ms. Supergan returned to work on

March 16, 2009, based on a release from the treating physician

that did not contain any limitations or accommodations.

32. On May 11, 2009, Ms. Supergan sent the following

e-mail to Mr. Zimmerman:

Afternoon,

Just got back from the doctor’s office and

he is absolutely firm on me not being in the

building exposing others to MRSA. Honestly,

I am quite confused by the position CHEP is

taking on this. MRSA has been epidemic in

our area for over a year now and is far more

deadly than the swine flue outbreak-in other

words, more people have died from MRSA than

swine flu in our area.

Additionally, you sent me home 2 days in a

row this past week because I was coughing

and people were complaining. You then

allowed me to work from home 2 more days for

the same reason. I’m sorry . . . I don’t

get why working from home now is not

acceptable when MRSA is far more deadly than

swine flu!!

Anyway, I have already called CHEP Benefits,

Prudential as well as my attorney. At this

point . . . there is no return date.

33. Mr. Zimmerman forwarded the e-mail to Ms. Kennedy in

HR. At that time, Ms. Kennedy lacked the information needed to

determine whether, or for how long, a work-from-home

accommodation might be necessary or appropriate. She,

therefore, examined various websites, including the Center for

Disease Control’s website, for guidance on what accommodations

might be necessary when an employee has MRSA, only to discover

that, ordinarily, employees with such infections should not be

excluded from a workplace unless: (a) they have a wound with

drainage that cannot be covered with a clean and dry bandage or

(b) they do not have good hygiene practices. At the time of

Ms. Supergan’s May 11, 2009, request to work at home, there was

nothing to suggest that Ms. Supergan had a wound with drainage,

which could not be covered with a clean and dry bandage or that

Ms. Supergan did not have good hygiene practices.

34. Because the need for, or type of, accommodations was

not obvious, CHEP asked Ms. Supergan to participate in the

interactive process. On May 21, 2009, Ms. Kennedy wrote to

Ms. Supergan, asking for her assistance. To help CHEP’s HR

Department identify what, if any reasonable accommodations might

be appropriate, Ms. Kennedy asked Ms. Supergan to have her

physician answer, on or before June 11, 2009, the following

questions:

1. Can you please describe the nature and

severity of Ms. Supergan’s condition? Is

this a chronic condition?

2. If so, how often and with what frequency

do you expect flare ups of the chronic

condition? How long do you expect an

individual flare up to last?

3. Ms. Supergan currently works as a

Financial Analyst. This job requires, among

other things, that Ms. Supergan interact

with other CHEP employees at CHEP’s

headquarters. In view of Ms. Supergan’s

condition, do you have any concerns with her

ability to interact with other CHEP

employees?

4. If so, when are the times that you have

such concerns and why?

5. Does Ms. Supergan currently pose a

threat to herself or others? If so, how?

6. If your answer to question number 4 is

no, are there times when you believe that

Ms. Supergan poses a threat to herself or

others? If so, when do you believe

Ms. Supergan poses a threat to herself or

others? How?

7. In view of the foregoing, does

Ms. Supergan require any accommodation to

allow her to perform the essential functions

of her job without posing a threat to

herself or others? If so, what kind of

accommodation(s) are necessary?

8. If you believe an accommodation is

necessary, please indicate your best

estimate as to how long such accommodation

will be required.

35. Ms. Supergan initially told Ms. Kennedy to contact

Ms. Supergan’s attorney. However, Ms. Supergan eventually took

the form to Dr. Maach to be filled out and returned to

Ms. Kennedy. Dr. Maach failed to respond to the request.

36. In May 2009, Ms. Supergan requested that CHEP extend

her leave of absence for an additional month. Ms. Kennedy

advised Ms. Supergan that CHEP was temporarily extending her

leave of absence for one month, conditioned on a determination

that her request to extend her leave of absence would be granted

pending a determination of whether Ms. Supergan was eligible for

further leave under FMLA and the receipt of Dr. Maach’s

responses to the questions posed by Ms. Kennedy on May 21, 2009.

37. On June 15, 2009, Ms. Kennedy again wrote to

Ms. Supergan, requesting that Ms. Supergan’s physician respond

to the questions by June 19, 2009. On June 17, 2009, Dr. Maach

responded, stating that Ms. Supergan had a chronic MRSA

infection, which would flare up about once a month. He further

stated that Ms. Supergan would be a medical threat to others in

terms of infecting others with MRSA. He “recommend[ed] working

from home so not to infect other employees with MRSA” for “as

long as necessary.” It should be noted that the recommendation

of working at home was to keep others from becoming infected and

not as an accommodation to keep Ms. Supergan from becoming

reinfected.

38. Based on Dr. Maach’s response, Ms. Kennedy had

additional questions concerning whether there were other

accommodations available and whether Ms. Supergan would need to

work at home on a permanent basis or for a more limited period

of time. On June 19, 2009, Ms. Kennedy sent the following

questions to Ms. Supergan to be answered by Dr. Maach on or

before June 24, 2009:

1. In your answers to our letter, dated

May 21, 2009, you state that you “recommend”

that Ms. Supergan work from home. Is it

medically necessary that she do so, or are

there other forms of accommodations that can

be made? For example, could Ms. Supergan

work at CHEP provided that she covers her

infection with a dry, clean bandage? Under

this scenario, would it be necessary for

CHEP to provide her with extra break(s) so

that she can change her bandages? If so,

how often? Or, if CHEP were to modify

Ms. Supergan’s workstation so as to minimize

her contacts with other employees, could she

return to work?

2. Also, in your answers to our letter, you

state that Ms. Supergan is a “medical threat

to others in terms of infecting others

[with] MRSA.” Is this threat a permanent

threat, or are there limited--but specific--

times when she poses such a threat? If this

threat is not a permanent one, when does Ms.

Supergan pose such a threat? What are the

circumstances that make her a threat?

3. Finally, in your answers to our letter,

you state that an accommodation will be

required “as long as necessary.” What do

you mean by this? Are you stating that

Ms. Supergan needs to work from home

indefinitely? Are there any periods of time

in the foreseeable future when Ms. Supergan

will be able to report to work at CHEP? If

Ms. Supergan need only work from home when

she suffers from a MRSA “flare-up,” how long

do you estimate that it will take her to

recover from such a “flare-up?”

39. By e-mail dated June 25, 2009, Ms. Supergan notified

Ms. Kennedy that her next appointment with Dr. Maach was July 1,

2009, and, at that time, she would ask her doctor to answer the

additional questions posed on June 19, 2009, and would ask about

a return-to-work date.

40. On July 1, 2009, Ms. Supergan sent an e-mail to

Ms. Kennedy, stating: “The doctor has not released me to return

to work in the office. . . . Dr. Maach suggested that you call

him during his regular office hours to discuss the reasons for

his decisions.” At this point, Ms. Supergan had not given

Ms. Kennedy authorization to contact her doctor directly to

discuss her health conditions. Ms. Kennedy e-mailed

Ms. Supergan, asking when she would be able to return, to which

Ms. Supergan responded, “You will need to speak with the

doctor.”

41. On July 2, 2009, Ms. Kennedy called Dr. Maach’s office

and was advised that he was not available. Ms. Kennedy asked

the doctor’s office staff to contact him and ask him to return

her call. She was advised that the office staff would try, but

Ms. Kennedy received no return call from the doctor.

42. Having received no follow-up information from

Dr. Maach and given Ms. Supergan’s refusal to discuss the issue

of a return date with Ms. Kennedy, Ms. Kennedy wrote to

Ms. Supergan on July 2, 2009, terminating Ms. Supergan’s

employment with CHEP.

43. Ms. Supergan contends that she has worked at home in

the past, and, therefore, there is no reason why she should not

be allowed to do so indefinitely. Ms. Supergan had been allowed

to work at home at times when there were special projects that

could be performed at home and when needed to be home to meet

repairmen. When her supervisor learned that Ms. Supergan could

not work from home and be on family medical leave at the same

time, he advised Ms. Supergan that she could not work at home

while on medical leave. When Ms. Supergan worked at home, it

was for short periods of time and for special projects which

could be performed from home.

44. CHEP did have one employee who worked from home for

approximately a year while recovering from an injury. The

employee did not perform the same job duties as Ms. Supergan,

and that employee’s work could be performed at home.

Additionally, it was not intended that the employee who worked

from home would be doing so on a permanent basis.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

46. Ms. Supergan has alleged that CHEP discriminated

against her based on a handicap by failing to make a reasonable

accommodation for her alleged disability and by terminating her

employment. Subsection 760.10(1)(a), Florida Statutes (2008), 3

provides that it is an unlawful employment practice for an

employer to discharge or otherwise to discriminate against any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's handicap.

Subsection 760.10(8)(a), Florida Statutes, provides that it is

not an unlawful employment practice to “[t]ake or fail to take

any action on the basis of . . . handicap . . . in those certain

instances in which . . . absence of a particular handicap . . .

is a bona fide occupational qualification reasonably necessary

for the performance of the particular employment to which such

action or inaction is related.”

47. The Florida Civil Rights Act of 1992 is patterned

after the Americans with Disabilities Act, 42 U.S.C. Section

12101, et seq. (the ADA), and Florida courts have recognized

that a “disability discrimination cause of action [under Florida

law] is analyzed under the ADA.” Wimberly v. Securities

Technology, Group, Inc. , 866 So. 2d 146, 147 (Fla. 4th DCA

2004); Razner v. Wellington Regional Medical Center, Inc. , 837

So. 2d 437, 440 (Fla. 4th DCA 2002); Smith v. Avatar Properties,

Inc. , 714 So. 2d 1103, 1106 (Fla. 5th DCA 1998).

48. In order to establish a prima facie case of an

unlawful employment practice for discrimination based on a

disability, Ms. Supergan must establish by a preponderance of

the evidence that: (1) she is disabled; (2) she is a qualified

individual; and (3) she was discriminated against by CHEP

because of her disability. See D’Angelo v. ConAgra Foods, Inc. ,

422 F.3d 1220, 1236 (11th Cir. 2005); Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001). Ms. Supergan claims

that CHEP failed to make a reasonable accommodation for her

disability and terminated her employment because of her

disability.

49. Other than Ms. Supergan’s contention, there is no

competent medical evidence to support that Ms. Supergan had an

immune system failure. However, there was sufficient

information that Ms. Supergan had chronic bouts with infections

like MRSA, which affected her ability to work around other

employees because of the risk of infecting her fellow employees.

The evidence establishes that Ms. Supergan had a physical

impairment that substantially limited a major life activity--

working.

50. Ms. Supergan did not establish that she is a qualified

individual. A qualified individual is an individual who, with

or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds.

42 U.S.C. § 1211(8); see Davis v. Florida Power & Light Co. , 205

F.3d 1301, 1305 (11th Cir. 2000)(“[I]f [the petitioner] is

unable to perform an essential function of his . . . job even

with an accommodation, he is, by definition, not a ‘qualified

individual’ and, therefore, not covered under the ADA. . . .

[Petitioner] must show either that he can perform the essential

functions of his job without accommodation, or failing that,

show that he can perform the essential functions of his job with

a reasonable accommodation.”).

51. In Kvorjak v. Maine , 259 F.3d 48, 55 (1st Cir. 2001),

the court discussed the meaning of the term “essential function”

and stated:

An "essential function" is a fundamental job

duty of the position at issue. The term

does not include "marginal" tasks, but may

encompass "individual or idiosyncratic

characteristics" of the job. In the absence

of evidence of discriminatory animus, courts

generally give "substantial weight" to the

employer's judgment as to what functions are

essential. Other evidence also is relevant,

including: "written job descriptions,

consequences of not requiring the function,

work experience of past incumbents, and work

experience of current incumbents."

(Citations omitted)

52. There was extensive testimony concerning the essential

functions of Ms. Supergan’s position. Substantial weight is

given to the employer’s view of the job requirements of a

position.

The ADA requires us to consider “the

employer’s judgment as to what functions of

a job are essential[.]” 42 U.S.C.

§ 1211(8). The employer describes the jobs

and functions required to perform that job.

Anderson v. Coors Brewing Co. , 181 F.3d

1171, 1177 (10th Cir. 1999). We will not

second guess the employer’s judgment when

its job description is job-related,

uniformly enforced, and consistent with

business necessity. . . . In short, the

essential function “inquiry is not intended

to second guess the employer or to require

the employer to lower company standards.”

Tate v. Farmland Indus. Inc. , 268 F.3d 989,

993 (10th Cir. 2001).

Mason v. Avaya Communs., Inc. , 357 F.3d 1114, 1119 (10th Cir.

2004).

53. Some of the essential functions of Ms. Supergan’s

position required her to deal with the review of U.S. invoices.

Some of the necessary information was contained in a paper

format rather an electronic format. In order to be able to

gather the paperwork and to present the paperwork to her

supervisor for approval, Ms. Supergan would have to physically

be able to get the paperwork and deliver it to her supervisor.

Ms. Supergan contends that other employees could scan the paper

work and send it to her by e-mail and that other employees could

make certain that the invoices were approved by the supervisor

and sent on to accounting for payment. An employer is not

required to accommodate a disability “by reallocating essential

functions to make other workers’ jobs more onerous.” Feliciano

v. State of Rhode Island , 160 F.3d 780, 785 (1st Cir. 1998). In

order to be able to deal with the information that was

communicated by paper, Ms. Supergan needed to be present at the

CHEP headquarters.

54. Although, Ms. Supergan did not consider the purchasing

of hardware and software to be an essential function of her job,

it was. As a member of the sourcing team, Ms. Supergan, as well

as the other team members, were expected to be able to purchase

hardware and software as part of their job functions. In order

to perform this job function, the employee needed to be

physically at CHEP’s headquarters.

55. Ms. Supergan was responsible for meeting with

different managers and supervisors to review different reports

and documents. Some of the meetings were scheduled, and some

were not. Because the meetings required a review and

examination of reports and other paper documents, it was

necessary that Ms. Supergan be physically present at the

meetings.

56. Ms. Supergan was very knowledgeable about her job, and

many coworkers would come to her for information. Sometimes,

she could respond by electronic means, but many times the

requests for information required a review of paper materials,

which required Ms. Supergan’s presence at the office.

57. After Ms. Supergan’s request to Mr. Zimmerman to work

at home in May 2009, CHEP began discussions with Ms. Supergan to

determine what accommodations could be made for Ms. Supergan.

Ms. Supergan takes the position that the only reasonable

accommodation that could be made is to allow her to work at home

indefinitely. Ms. Supergan claims that she is getting better,

but there is still no time frame in which she could see when she

would no longer need to work at home.

58. There was no medical evidence that Ms. Supergan is

getting MRSA from being at work. Based on Dr. Maach’s

contention that Ms. Supergan needs to work at home in order to

keep from infecting others, Ms. Kennedy’s follow-up questions on

what other accommodations could be made to keep coworkers from

becoming infected was reasonable. There has been no further

documentation from Dr. Maach if there are other accommodations

that could be made, and no evidence was presented from Dr. Maach

that working at home is the only accommodation that could be

made to keep other coworkers from becoming infected.

59. The employee has the burden to identify a reasonable

accommodation. See Earl v. Mervyns, Inc. , 207 F.3d 1361, 1367

(11th Cir. 2000). An employee is not required to accommodate

the employee only in the manner which the employee desires. Id.

The accommodation of working at home is not a reasonable

accommodation because it requires CHEP to eliminate essential

functions of Ms. Supergan’s position, would require other

employees to perform the work which should have been performed

by Ms. Supergan, and prevents the functioning of the sourcing

team as a team.

60. Ms. Supergan has failed to show that CHEP

discriminated against her for failure to allow her to work at

home. Ms. Supergan has failed to establish that CHEP terminated

her employment based on her disability. Ms. Supergan was given

ample leave time for her medical conditions during 2008 and

2009. By July 2009, she had missed 192 days. Ms. Supergan

could not perform the essential functions of her job because she

was not on the job, and there was no definite date of when she

could return to the job. Additionally, Ms. Supergan was not as

forthcoming as she could have been in coming up with a

reasonable accommodation that would allow her continue to

perform the essential functions of her job. Her termination was

not an unlawful employment practice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that CHEP did not commit any unlawful employment practice and

dismissing Ms. Supergan’s Petition for Relief.

DONE AND ENTERED this 17th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 17th day of May, 2010.

ENDNOTES

1/ The sourcing team was also referred to as the purchasing

team.

2/ Ms. Dani attached documentation to the letter concerning

Ms. Supergan’s leave request for February and March 2009. One

of the attachments was a statement from Ms. Supergan’s physician

on Prudential’s Attending Physician Statement, which stated:

“prefer to work @ home because of recurrent infection.”

3/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Tracey L. Ellerson, Esquire

Baker & Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802-0112

Lorraine Supergan

5564 Sassparilla Lane

Orlando, Florida 32821

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.