10-008859 Lydia Breedlove vs. Operation Par, Inc. Status: Closed Recommended Order on Monday, April 4, 2011.

Summary: Petitioner's disability precluded her being qualified to do her job. Petitioner is unable to do the work employer sought to be done. Discrimination was not established.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYDIA BREEDLOVE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8859

)

OPERATION PAR, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was held in this case

on December 3, 2010, in Clearwater, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Lydia Breedlove, pro se

305 Belleair Place

Clearwater, Florida 33756

For Respondent: Cynthia L. May, Esquire

Greenberg Traurig, P. A.

625 East Twiggs Street, Suite 100

Tampa, Florida 33602

STATEMENT OF THE ISSU E

The issue in this case is whether Respondent, Operation

Par, Inc. (Respondent), discriminated against Petitioner, Lydia

Breedlove (Petitioner), on the basis of handicap.

PRELIMINARY STATEMENT

On September 2, 2010, the Florida Commission on Human

Re lations (FCHR) , transmitted a Petition for Relief to the

Division of Administrative Hearings (DOAH). Petitioner filed

the petition , and alleged that Respondent had discriminated

against her on the basis of her disability. Presumably,

PetitionerÓs disabil ity would be considered a handicap under the

Florida law. PetitionerÓs request for an administrative hearing

was based upon her disagreement with FCHRÓs decision in the

matter. After its investigation of PetitionerÓs original

complaint against Respondent , FCHR entered a determination of no

cause. FCHR decided preliminarily that Petitioner did not

establish discrimination in the matter.

Respondent filed a Motion to Dismiss for Lack of

Jurisdiction on September 21, 2010, and asserted that DOAH does

not hav e jurisdiction in the cause as PetitionerÓs claim results

from a termination of employment subsequent to leave taken ,

pursuant to the Family Medical Leave Act (FMLA). Respondent

maintains that any claim related to the FMLA is not encompassed

within c hapte r 760, Florida Statutes (2010). After review of

the motion, it was denied with leave to renew subsequent to the

hearing.

At the hearing, Petitioner testified on her own behalf , and

offered testimony from Frederica Willis . Respondent presented

testimony from Kay Doughty, Geneviere Gerard - Phaire, Stella C.

Shult, and Richard Neubert . The e xhibits received into evidence

are listed and fully identified on page four of the Transcript.

The T ranscript of the proceedings was filed with DOAH on

December 30, 20 10 . Thereafter, Respondent timely filed a

Proposed Recommended Order that has been considered in the

preparation of this Recommended O rder.

FINDINGS OF FACT

1. Respondent is an employer within the definition of

c hapter 760. Respondent operates preven tion, intervention, and

treatment programs for individuals who are addicted to, or are

at risk of addiction to alcohol, drugs , or other substances.

2. Petitioner was employed by Respondent on or about

October 27, 2003, and was assigned to different dut i es within

RespondentÓs business organization.

3. Petitioner worked on RespondentÓs Emergency Response

Team (ERT) in 2008. Work with the ERT required Petitioner to

travel to clientsÓ homes and conduct interviews and evaluations.

Subsequent to her assig nment with ERT, Petitioner voluntarily

transferred to the Cornerstone of Success and Achievement (COSA)

program. The COSA assignment did not require travel , and

allowed Petitioner to be stationed within an office setting.

4. During her time with ERT, Pe titioner was counseling at

a clientÓs home when she fell ill and was unable to continue her

assignment. From the clientÓs home , Petitioner was transported

to the hospital , and was absent from work from April 14, 2008 ,

through May 19, 2008. Petitioner use d her sick leave or

personal leave time for this absence.

5. Petitioner obtained a medical excuse for the absence

and was able to return to work after the incident described

above.

6. In October 2008, Petitioner again fell ill and missed

two days of work . Following this absence , Petitioner obtained a

doctorÓs excuse that allowed her to return to work.

7. It was following the October illness that Petitioner

sought and was given a transfer to the COSA program. Petitioner

hoped that the COSA program would better suit her medical

issues.

8. Shortly after the assignment to COSA, Petitioner again

fell ill , and was hospitalized and placed in an intensive care

unit (ICU). During this time , Petitioner was not able to

perform her work duties. Because she was to be out of work for

an extended time, Respondent facilitated Petitioner going on

FMLA leave. Because she exercised this option, Petitioner was

allowed twelve weeks of leave to afford her an opportunity to

regain her health.

9. Petitioner attempted t o return to work in February

2009 , but once again fell ill. This time Petitioner was

hospitalized and unable to perform her work duties.

10. From February 6, 2009, until February 20, 2009,

Petitioner did not contact Respondent to explain the latest

round of illness. Petitioner was unable to perform her work

duties during this time and could not obtain a doctorÓs excuse

to return to work.

11. During the February illness , Petitioner did not seek

an accommodation that would allow Petitioner to return to wo rk.

In fact, as of the date of the hearing, Petitioner was unable to

work.

12. Subsequently, Respondent facilitated obtaining

disability benefits for Petitioner. The company health and life

insurance plans allowed Petitioner to continue her life

insur ance at no cost , and allowed her to receive approximately

60 percent of her wages while she was unable to work. Later ,

Petitioner also qualified for and received S ocial S ecurity

disability benefits.

13. Petitioner became upset because Respondent termin ated

her employment with the company on or about February 20, 2009.

PetitionerÓs life insurance and disability benefits were not

terminated. As Petitioner was unable to perform her job duties,

Respondent was obligated to employ someone who could get

Peti tionerÓs work assignments completed. Respondent considered

Petitioner a valued employee , and had she been able to return to

work, she would have been allowed to do so. Regrettably,

PetitionerÓs health did not permit her to return. Should

Petitioner beco me able to work, Respondent would be willing to

consider her for future employment.

14. PetitionerÓs job with Respondent required that she

engage in interpersonal relations. Further, given the nature of

the job programs, PetitionerÓs work required that she handle

stressful situations. According to her disability claim,

Petitioner is unable to handle stress.

15. Additionally, PetitionerÓs physician verified that she

is unable to return to work due to the stressful nature of the

work , and her need for rehabilitation. PetitionerÓs medical

condition caused her to be limited in the scope of activities

she can perform.

16. Petitioner mistakenly believed Respondent was not

interested in helping her when, in fact, the company assisted in

the procurement of benefits for Petitioner.

17. Petitioner may apply for a job with Respondent

whenever she is able to return to work. To date, she is not

able to do so.

18. RespondentÓs programs (ERT and COSA) were negatively

impacted by the shortage of support when Petitioner was not able

to work. The best interests of the company and its clients

required that an employee who could perform the work be placed

in the job.

19. Petitioner claimed that the assignment to COSA

negatively impacted her health ; however, suc h assertion is not

supported by medical evidence. It was PetitionerÓs conjecture

that the assignment to the COSA site caused her subsequent

illness , because she had to work in a converted garage with only

a space heater for heat. The latter claim is not supported by

the weight of the credible evidence.

20. Finally, it is determined that Respondent terminated

PetitionerÓs employment based upon the companyÓs need to

complete work assignments that were critical to the business

operations of the entity.

21. Petitioner timely filed a complaint with the FCHR , and

alleged that her termination by Respondent was based upon her

disability. Respondent articulated and proved business

considerations that required the termination. Such

considerations were not a pret ext for an otherwise impermissible

act.

22. Further, Respondent did not terminate PetitionerÓs

employment in retaliation for PetitionerÓs use of FMLA leave , or

because she alleged the work environment contributed to her

medical condition. To the contrary , Respondent assisted

Petitioner in claiming FMLA leave so that she could document her

extended absences from work. Respondent allowed Petitioner to

return to work on every occasion she presented a doctorÓs excuse

for her absence. Petitioner was not able to perform her work

duties at the time of the termination.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.57(1) and 760.11,

Fla. Stat. (2010).

24. The Florida Civil Rights Act of 1 992 (the Act) is

codified in s ections 760.01 through 760.11 , Florida Statutes.

"The Act, as amended, was [generally] patterned after Title VII

of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000,

et seq. , as well as the Age Discrimination in Empl oyment Act

(ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applicable

to cases [involving counterpart provisions of] the Florida Act."

Fl a. S t. Univ . v. Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA

1996); see Joshua v. City of Gainesville , 768 So. 2d 432, 435

(Fla. 2000)("The [Act's] stated purpose and statutory

construction directive are modeled after Title VII of the Civil

Rights Act of 1964.").

25. The Act makes certain acts prohibited "unlawful

employment practices," including those described in

s ection 760.10, which provides, in pertinent part:

(1) It is an unlawful employment

practice for an employer:

(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

discriminat e against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employ ees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national ori gin, age, handicap, or

marital status.

26. The Act gives the FCHR authority to issue an order

prohibiting the practice , and providing affirmative relief from

the effects of the practice, including back pay, if it finds ,

following an administrative hear ing , that an unlawful employment

practice has occurred. See § 760.11 , Fla. Stat. To obtain

relief from the FCHR, a person who claims to have been the

victim of an "unlawful employment practice" must, "within 365

days of the alleged violation," file a com plaint ("contain[ing]

a short and plain statement of the facts describing the

violation and the relief sought") with the FCHR. § 760.11(1).

It is concluded that PetitionerÓs complaint, filed on

February 18, 2010, was within the statutory time limitation.

27. PetitionerÓs complaint alleged that she was subjected

to discrimination based upon her disability. Petitioner alleged

that RespondentÓs claim of excessive absenteeism was a pretext.

28. For purposes of a claim of discrimination based upon

Ðdisabili ty , Ñ it must constitute a handicap. Florida courts

have recognized that actions under the Florida Civil Rights Act

are analyzed under the same framework as the Americans with

Disabilities Act found at 42 U.S.C. §§ 12101, et seq . (ADA).

See Chanda v. Enge lhard/ICC, f.k.a. Ciba - Geigy , 234 F.3d 1219

(11th Cir. 2000). Accordingly, Petitioner must establish that

she is a qualified individual with a disability. A disability

is an impairment that substantially limits a major life

activity. Whether someone is substantially limited requires

that the individual be unable to perform a major life activity

that the average person in the general population can perform ,

or be significantly restricted as to the condition, manner , or

duration under which the individual can perform a particular

major life activity as compared to the manner in which the

average person can perform the same major life activity. Life

activities are considered daily skills that one performs to care

for oneself. Major life activities include, but are not limited

to, dressing oneself, feeding oneself, manual tasks such as

combing oneÓs hair, walking, speaking, seeing, and hearing. A

diminished ability for normal daily activities such as lifting,

running, or performing manual tasks does not con stitute a

disability under the ADA. See Chanda , supra .

29. It is concluded , Petitioner was not discriminated

against on the basis of handicap. Petitioner was not medically

able to perform the tasks required by her job. Petitioner

exhausted her medical leave time and her doctor did not clear

her to return to work. As of the date of the hearing,

Petitioner was not able to return to work. Should Petitioner

become physically able to perform the duties associated with a

job with Respondent, she is eligibl e to seek re - employment. In

the meanwhile, Petitioner receives life insurance and disability

benefits provided through RespondentÓs employee insurance.

Employers are not required to hire or retain persons who are

unable to perform the job duties the work requires. An

otherwise qualified handicapped person cannot be discharged

based upon the handicap. In this instance , Petitioner was

simply no longer qualified to do the work.

30. Petitioner has the burden of proving the allegations

asserted. "Discrimin atory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

31. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent wit hout resort to

inference or presumption. See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004). In this case, Petitioner

failed to prove discrimination either by direct or indirect

evidence.

32. Moreover, although victims of discriminatio n may be

"permitted to establish their cases through inferential and

circumstantial proof," Petitioner similarly failed to present

credible inferential or circumstantial proof. See Kline v.

Tennessee Valley Auth . , 128 F.3d 337, 348 (6th Cir. 1997).

33. H ad Petitioner established circumstantial evidence of

discrimination, the burden would have shifted to Respondent to

articulate a legitimate, non - discriminatory reason for its

action. If the employer successfully articulates a reason for

its action, then t he burden shifts back to the complainant to

establish that the proffered reason was a pretext.

34. In this case , Petitioner never established she was

able to perform the duties associated with her job. A doctor

has yet to clear her to return to work, Res pondent had

legitimate business needs to address, and Petitioner exhausted

her leave. Respondent is not required under the law to hold

PetitionerÓs job open indefinitely until she is able to return

to work. Given PetitionerÓs eligibility for S ocial S ecur ity

disability income, she may never be able to return to work.

35. In this case, the persuasive evidence established that

PetitionerÓs employment was terminated due to her inability to

perform the duties associated with the job. No accommodation

would allow Petitioner to attend work given the severity of her

health problems.

36. In light of the foregoing, Petitioner ' s employment

discrimination complaint must be dismissed.

37. Finally, to address RespondentÓs claim that DOAH does

not have jurisdicti on, PetitionerÓs claim of discrimination did

not allege a violation of the FMLA. Respondent rightly asserts

that DOAH does not have jurisdiction with regard to the FMLA.

However, Petitioner alleged that because she took FMLA ,

R espondent somehow decided t o take retaliatory action against

her based upon her handicap. Petitioner failed to establish

such discrimination. If anything, Respondent assisted

Petitioner to qualify for FMLA. By doing so, Petitioner was

assured her job was secure for the time of me dical leave.

Afterwards, Respondent helped Petitioner obtain disability

benefits. There is no credible evidence that Respondent did

anything contrary to law in this cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of L a w it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order dismissing PetitionerÓs claim

against the Respondent.

DONE AND ENTER ED this 4th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April , 2011 .

COPIES FURNISHED :

Richard C. McCrea, Jr., Esquire

625 East Twiggs Street, Suite 100

Tampa, Florida 33602

Cynthia Lee May, Esquire

Greenberg Traurig, P.A.

625 East Twiggs Street, Suite 100

Tampa, Florida 33602

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lydia Breedlove

305 Belleair Place

Clearwater, Florida 33756

Larry Kranert, General Counsel

Florida Commi ssion 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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.