10-004817 Jacqueline Tory vs. Castle, The Parenting Professionals Status: Closed Recommended Order on Thursday, September 16, 2010.

Summary: Petitioner failed to prove disability or that employer perceived her as having diability when employment terminated and thus, failed to prove discriminatory illegal employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE TORY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 4817

)

CASTLE, THE PARENTING )

PROFESSIONALS , )

)

Respondent . )

)

RECOMMENDED ORDER

Adminis trative Law Judge Eleanor M. Hunter held a final

hearing in this case by video teleconference at sites in Port

St. Lucie and Tallahassee, Florida, on August 19, 2010.

APPEARANCES

For Petitioner: Jacqueline Tory, pro se

2425 12t h Avenue Southwest

Vero Beach, Florida 32962

For Respondent: William H. Andrews, Esquire

Gray Robinson

50 North Laura Street, Suite 1100

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice by discriminating against Petitioner on the

basis of a disability in violation of the Florida Civil Rights

Act of 1992, as amended, Chapter 760, Florid a Statutes (2010).

PRELIMINARY STATEMENT

On December 14, 2009, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the Commission). Following an investigation, the Commission

issued a ÐDetermination: No CauseÑ on May 27, 2010 , meaning it

found no reasonable cause to believe that an unlawful employment

practice occurred . Petitioner filed a Petition for Relief, and

the Commission referred the matter to the Division of

Administrative Hearings on July 14, 2010. A Not ice of Hearing

was issued, and the hearing was held as scheduled on August 19,

2010.

At the hearing, Petitioner appeared and testified on her

own behalf. Respondent presented the testimony of Teresa

Cleveland and Ruth Orenstein. RespondentÓs Exhibits 1 - 1 4 were

received in evidence. No transcript of the hearing has been

filed. Petitioner filed her P roposed F indings on August 28,

2010. Respondent filed P roposed F indings of F act and

C onclusions of L aw on September 7, 2010.

FINDINGS OF FACT

1. Petitioner , Jacque line Tory ("Petitioner" or

"Ms. Tory") , filed a Charge of Discrimination, dated

December 14, 2009, alleging that she was the victim of an

unlawful employment practice. More specifically, Ms. Tory

charged that she was terminated from employment due to a

disability and that her former employer illegally obtained

cop ies of her medical records.

2. Respondent, Castle, The Parenting Professionals

("Respondent"), is an ÐemployerÑ within the meaning of the

Florida Civil Rights Act of 1992. Respondent pro vides parenting

counseling and child abuse prevention services.

3. Petitioner applied for a job as a case manager with

Respondent. She was interviewed by Respondent's Human Resources

("HR") Specialist Teresa Cleveland and by her prospective

supervisor, P rogram Manager Ruth Orenstein.

4. Petitioner claimed that during her interview she told

Ms. Cleveland and Ms. Orenstein that she had a disability.

Neither of them recalled having been given that information and ,

if they were, a claim of discrimination on that basis is

inconsistent with the fact that they hired her immediately. On

September 1, 2009, she signed and dated an employment

application . She also signed and dated a position description

acknowledging her job responsibilities, including a section

entitled "essential physical skills."

5. The position description included a space that was left

blank following the words : "I will require the following

accommodations to do this job in order to meet the requirements

of this position."

6. After giving notice to her previous employer,

Petitioner began working for R espondent on October 12, 2009.

The record indicates that she signed for and received a

handbook , outlining work hour expectations, from R espondent's HR

Department on October 13, 2009.

7. Aft er Petitioner was tardy every day during her first

week at work, Ms. Orenstein spoke to Petitioner about her

tardiness , on October 16, 2009 . Petitioner became

argumentative. Petitioner claimed that the HR Department had

prior notice of a physical impairm ent that made it impossible

for her to get to work at 8:00 a.m.

8. Ms. Orenstein consulted Ms. Cleveland from HR , who had

no medical records or request for accommodations f rom

Petitioner. Ms. Orenstein then received the approval of an

Assistant Director to terminate Petitioner's employment that day

because of her tardiness and because of the way she treated her.

9. Contrary to the assertion that a disability caused her

to be tardy, Petitioner, at hearing, testified that she was

terminated after telling h er employer that she had to have

monthly medical appointments for injections to alleviate chronic

neck pain. She also testified that she suffers from depression.

She speculated , without any evidence, that Respondent, a small

15 - person organization , was c oncerned about rising health care

cost after learning of her condition.

10. The evidence in the record related to Petitioner's

medical condition was created after the date she was terminated.

It includes a physician ' s note on a sheet from a prescription

pad dated March 24, 2010, that states : "Petitioner is unable to

work due to her chronic pain, anxiety, and asthma." A

Psychological Evaluation, dated January 29, 2010, has the

following reason given for the referral:

The Department of Health, Office of

Di sability Determination referred Ms. Tory

for a psychological evaluation. This

evaluation will be used as an aid in

determining eligibility for disability

benefits.

11. Petitioner presented insufficient evidence to

establish that Respondent knew that she had a disability, if

any, on October 16, 2009. Therefore, Petitioner failed to

establish that she suffered from an unlawful employment

practice .

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the su bject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat (2010).

13 . Section 760.10, Florida Statutes (2010 ) , provides

that:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any indivi dual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

14 . To est ablish a prima facie case of discrimination,

Petitioner must prove by a preponderance of the evidence : (1)

that she is a handicapped person within the meaning of

Sub section 760.10(1)(a) ; (2) that she is a qualified individual;

and (3) that Respondent discriminated against her on the basis

of her disability . See Earl v. Mervyns , 207 F.3d 1361, 1365

(11th Cir. 2000) ; Pritchard v. S. Co. Servs. , 92 F.3d 1130 (11th

Cir. 1996); and Byrd v. BT Foods, Inc. , 948 So. 2d 921 (Fla. 4th

DCA 2007).

15 . The term "handicap" in the Florida Civil Rights Act is

treated as equivalent to the term "disability" in the Americans

With Disabilities Act." See Ro ss v. Jim Adams F ord, Inc. , 871

So. 2d 312 (Fla. 2d DCA 2004) .

16. The ADA defines a " disability " as "a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual, a record of such

impairment; or being regarded as having such an impairment." 42

U.S.C. § 12102(2) . "Major life activities" include "functions

such as caring for oneself, performing manual tasks, walki ng,

seeing, hearing, speaking, breathing, learning and working."

Bragdon v. Abbott , 524 U.S . 624, 118 S. Ct. 2196, 141 L. Ed. 2d

540 (1998) ; see 45 C.F.R. § 84.3(j)(2)(ii) ; and 28 C.F.R. §

41.31(b)(2)(1997) .

17 . In Sutton v. United Air Lines, Inc. , the Supreme Court

de clared that whether a person is disabled under the ADA is an

"individualized inquiry." It stated:

The definition of disability . . . requires

that disabilities be evaluated 'with respect

to an individual' and be determined based on

whether an impairment substantially limits

the major life activities of such

individual.' Thus, whether a person has a

disability under the ADA is an

individualized inquiry.

Id. at 484 .

18 . Petitioner failed to prove that she had a disability

in October 2009, or that Respond ent perceived her as having had

a disability at the time her employment was terminated.

Petitioner failed to prove that Respondent had access to her

medical records at the time of her discharge from employment .

Petitioner , therefore, has not established a prima facie case of

discrimination. See St. Johns County School District v.

O'Brien , 973 So. 2d 535 (Fla. 5th DCA 2007).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is R ECOMMENDED that the Commission enter a final order

finding Respondent not guilty of the allegations, and dismissing

PetitionerÓs Charge of Discrimination and Petition for Relief.

DONE AND ENTE RED this 16th day of September, 2010 , in

Tallahassee, Leon Count y, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of September , 2010 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 3 2301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jacqueline Tory

2425 12th Avenue Southwest

Vero Beach, Florida 32962

William H. Andrews, Esquire

Gray Robinson

50 No rth Laura Street, Suite 1100

Jacksonville, Florida 32202

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 shou ld be filed with the agency that

will issue the Final Order in this case.