10-001176 Gertrude Berrieum vs. Department Of Corrections Status: Closed Recommended Order on Tuesday, May 11, 2010.

Summary: Petitioner did not prove that Respondent discriminated against her based on a perceived disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERTRUDE BERRIEUM, )

)

Petitioner, )

)

vs. ) Case No. 10-1176

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 30,

2010, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gertrude B. Berrieum, pro se

5032 North West Martin Luther King Road

Bristol, Florida 32321

For Respondent: Todd Studley, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUES

The issues are whether Respondent discriminated against

Petitioner based on a perceived disability and retaliated

against her in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On August 28, 2009, Petitioner Gertrude Berrieum

(Petitioner) filed an Amended Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(FCHR). The complaint alleged that Respondent Department of

Corrections (Respondent) had discriminated against Petitioner by

failing to promote/rehire her as a correctional officer based on

a perceived disability. The complaint also alleged that the

Respondent retaliated against Petitioner by terminating her

employment because she complained about alleged discrimination.

On or about January 28, 2010, FCHR issued a Determination:

No Cause. Petitioner subsequently filed a Petition for Relief

with FCHR on February 26, 2010.

On March 10, 2010, FCHR referred the Petition for Relief to

the Division of Administrative Hearings. On March 30, 2010, the

undersigned issued a Notice of Hearing. The notice scheduled

the hearing for April 30, 2010.

During the hearing, Petitioner testified on her own behalf

and presented the testimony of two witnesses. Petitioner

offered three exhibits that were accepted as evidence.

Respondent presented the testimony of seven witnesses.

Respondent offered 22 exhibits that were accepted as evidence.

The parties declined to file a copy of the hearing

transcript. Respondent filed a Proposed Recommended Order on

May 4, 2010. As of the date that this Recommended Order was

issued, Petitioner had not filed proposed findings of fact and

conclusions of law.

Hereinafter, all references shall be to Florida Statutes

(2009), unless otherwise noted.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was employed

by Respondent at the Liberty Correctional Institution (LCI).

She was hired as a Correctional Officer in LCI's Security

Department effective December 21, 1990.

2. In February 1991, Petitioner was counseled regarding

her failure to report for duty or to notify the institution of

an intended absence.

3. On April 1, 1996, Petitioner's supervisor counseled her

regarding her failure to report to work in a timely manner.

Petitioner had been tardy to work three times in March 1996.

4. On May 30, 2001, Respondent counseled Petitioner

regarding her excessive absenteeism. Petitioner had five

unscheduled absences.

5. Respondent promoted Petitioner to Correctional Officer

Sergeant effective November 1, 2001.

6. In October 24, 2003, Respondent gave Petitioner an oral

reprimand for abuse of sick leave. Petitioner had developed a

pattern of absenteeism in conjunction with her regular days off.

7. In December 2004, Respondent gave Petitioner a written

reprimand. The reprimand was based on Petitioner's failure to

follow oral and/or written instruction, continued absenteeism,

and abuse of sick leave.

8. On July 7, 2007, Petitioner sustained an on-the-job

injury. The injury was diagnosed as carpel tunnel syndrome.

Petitioner underwent surgery for this condition in

December 2007.

9. On or about April 8, 2008, Petitioner reached statutory

Maximum Medical Improvement (MMI). Petitioner had a Permanent

Impairment Rating (PIR) of six percent.

10. On April 15, 2008, a functional capacity evaluation

revealed that Petitioner was able to perform light work with

lifting restrictions. The restrictions prevented Petitioner

from performing the essential functions of a Correctional

Officer.

11. Pursuant to policy, Respondent immediately conducted a

job search. At that time, a Clerk Typist Specialist position

was available at LCI. Petitioner was qualified to perform that

job. She submitted an application for the position on or about

June 5, 2008.

12. In a letter dated June 10, 2008, Respondent offered

Petitioner the Clerk Typist Specialist position in LCI's

Classification Department. On June 26, 2008, Petitioner signed

an Acknowledgement, accepting a voluntary demotion from

Correctional Officer Sergeant to Clerk Typist Specialist and

stating that she agreed to perform the duties of the new

position to the best of her ability.

13. Petitioner returned the Acknowledgement to Respondent.

At the same time, Petitioner questioned whether she would be

able to perform the duties of a Clerk Typist Specialist due to

her carpel tunnel condition.

14. In a letter dated June 27, 2008, Respondent requested

that Petitioner take an essential functions form to a July 8,

2008, doctor's appointment. Respondent wanted the physician to

complete the essential functions form and return it to

Respondent by July 18, 2008. The purpose of the evaluation was

to determine whether Petitioner was able to perform as a Clerk

Typist Specialist.

15. On or about July 24, 2008, Petitioner advised

Respondent that she was going to have a nerve conduction test on

July 30, 2008. She advised Respondent that she would provide

the results to Respondent as soon as possible.

16. In a letter dated August 20, 2008, Respondent advised

Petitioner that, pending the results of a pre-determination

conference, Petitioner could be dismissed from her employment as

a Correctional Officer effective September 11, 2008. Respondent

proposed this action because Petitioner had not provided

Respondent with a doctor's report regarding Petitioner's ability

to perform the essential functions of a Clerk Typist Specialist.

17. A pre-determination conference was held on August 27,

2008. In a letter dated September 12, 2008, Warden Douglas

advised Petitioner that she would not be dismissed because she

had provided medical documentation of her ability to perform the

position of a Clerk Typist Specialist. Petitioner began working

in that capacity on September 19, 2008.

18. In December 2008, Petitioner sent an e-mail to

Respondent's Secretary, Walt McNeil. In the e-mail, Petitioner

complained that Respondent had not returned her to work as a

Correctional Officer Sergeant after being medically cleared to

work in that capacity.

19. There is no persuasive evidence that Petitioner had

been medically released to work as a Correctional Officer in

December 2008. Additionally, there is no evidence that

Petitioner had made a request or filed an application to return

to work as a Correctional Officer at that time.

20. Respondent subsequently requested Petitioner's doctor

to provide an updated opinion regarding Petitioner's ability to

work as a Correctional Officer. On or about January 15, 2009,

Petitioner's doctor approved Petitioner's return to work as a

Correctional Officer with no restrictions.

21. In a memorandum dated February 9, 2009, Respondent

advised Petitioner that she was medically cleared to work as a

Correctional Officer but that she would need to apply for

openings. The memorandum stated that Petitioner had to be

reprocessed as a Correctional Officer, including having a drug

test and physical examination.

22. The February 9, 2009, memorandum also reminded

Petitioner that she would be required to serve another

probationary period if she received an appointment as a

Correctional Officer. There is no promotion track between the

Security Department and the Classification Department.

23. Petitioner applied for four Correctional Officer

positions between February and May 2009. Two of the

applications were for positions located at LCI. The third

application was for a position at Calhoun Correctional

Institution (CCI). The fourth application was for a position at

Franklin Correctional Institution (FCI).

24. On February 10, 2009, Warden Chris Douglas at LCI

declined to interview or rehire Petitioner as a Correctional

Officer for position number 7002037. Warden Douglas made this

decision based on Petitioner's previous and current employment

history showing attendance problems. Petitioner's testimony

that she never applied for this position is not persuasive.

25. Petitioner's application for a Correctional Officer

position at FCI was never completely processed. In a letter

dated April 9, 2009, Respondent advised Petitioner that she

needed to provide additional information to support her

application for employment in position number 70039564 at FCI.

Petitioner did not respond to the request because she decided

that she did not want to commute to work so far from her home.

26. On April 23, 2009, Petitioner received her Performance

Planning and Evaluation. Her direct supervisor, Kim Davis,

Respondent's Classification Sentence Specialist, rated

Petitioner as performing "Above Expectation" in all applicable

categories.

27. On April 30, 2009, Petitioner requested Warden Douglas

to let her complete her mandatory firearm training because her

weapons qualification was about to expire. Warden Douglas

promptly responded that she could be scheduled to take the next

firearms class. Petitioner re-qualified with specified weapons

on May 11, 2009.

28. On May 28, 2009, Petitioner was interviewed for a

position as a Correctional Officer at LCI. She gave correct and

appropriate answers to all questions during the interview. Even

so, Warden Douglas decided not to hire Petitioner due to her

past and current attendance problems.

29. Warden Adro Johnson did not give Petitioner an

interview for Correctional Officer position number 70041507 at

CCI. He made his decision in July 2009 based on information

indicating that Petitioner was already employed at LCI.

30. In July 2009, Respondent's supervisor counseled

Petitioner regarding her attendance. She had been absent for

four unscheduled absences in the past 90 days. She had missed

approximately 40 work days or eight weeks of work during the 11

months she was in the position of Clerk Typist specialist.

31. On August 3, 2009, Petitioner filed her initial

complaint with FCHR.

32. Ms. Davis was the person who trained Petitioner as a

Clerk Typist Specialist. Petitioner's job included filing

documents related to approval or disapproval of inmate

visitation. The original documents were sent to the inmates.

Respondent was supposed to file copies of the documents in the

inmates' classification files.

33. During the time that Petitioner worked as a Clerk

Typist Specialist, Ms. Davis had to counsel Petitioner

approximately ten times regarding the filing of the inmate

visitation documents. Ms. Davis stressed the importance of

Petitioner completing her work and filing the documents in a

timely manner. Additionally, Ms. Davis noted that Petitioner

occasionally failed to properly file the documents.

34. Petitioner was trained to remove duplicate copies of

documents from inmate files. Duplicate copies of documents

could be shredded.

35. Petitioner was not instructed to shred the inmate

visitation documents. If the documents were not legible,

another copy was supposed to be made, using the copy machine to

darken the print.

36. Willie Brown is one of the Assistant Wardens at LCI.

His office was close to Petitioner's work area. Assistant

Warden Brown occasionally counseled Petitioner regarding the

need to file the papers on her desk.

37. On August 18, 2009, Assistant Warden Brown observed a

large amount of paperwork that Petitioner had not filed. Once

again, Assistant Warden Brown told Petitioner that she needed to

file on a timely basis. He explained that Petitioner could file

on the schedule she developed, but that it might be necessary to

file everyday.

38. Later on August 18, 2009, Heather Barfield, a

Correctional Sentence Specialist, observed Petitioner feeding a

large amount of paper into a shredder, causing the shredder to

jam. Ms. Barfield subsequently attempted to clear the shredder

jam and noticed that the papers belonged in the inmates' files.

39. Ms. Barfield reported her observations to Assistant

Warden Brown and Cynthia Swier, the Classification Supervisor.

Assistant Warden Brown confirmed that the partially shredded

documents were legible and should have been filed.

40. Ms. Davis was informed about the shredding incident

when she returned to work the following day. Ms. Davis verified

that the shredded documents had been legible and were not

duplicates of documents in the inmates' files.

41. The greater weight of the evidence indicates that

Petitioner intentionally shredded the documents in order to

clear her desk. Petitioner's testimony that she was shredding

them because they were not legible is not credible and contrary

to more persuasive evidence.

42. On August 26, 2009, Respondent terminated Petitioner

employment as a Clerk Typist Specialist. Because she was on

probationary status, she had no appeal rights.

CONCLUSIONS OF LAW

43. 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.

44. Section 760.10, Florida Statutes, states as follows 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

discriminate 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.

* * *

(7) It is an unlawful employment

practice for an employer . . . to

discriminate against any person because that

person has opposed any practice which is an

unlawful employment practice under this

section, or because that person has made a

charge, testified, assisted, or participated

in any manner in an investigation

proceeding, or hearing under this section.

45. 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).

46. Absent direct or statistical evidence of

discrimination, neither of which was offered here, claims of

discrimination and retaliation are evaluated using the test for

circumstantial evidence, as set forth in McDonnell Douglas Corp.

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

at 792, and Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248, 253 (1981), the United States Supreme Court first

articulated the framework for use by trial courts in evaluating

the merits of discrimination claims of disparate treatment based

upon circumstantial evidence, including the basic allocation of

burdens and order of presentation of proof.

47. Under this analytical framework, the employee bears

the initial burden of establishing a prima facie case of

unlawful discrimination. See Burdine , 450 U.S. at 253. Only if

the employee establishes a prima facie case does the burden of

production shift to the employer to articulate a credible,

legitimate, non-discriminatory explanation for its decision.

See Burdine , 450 U.S. at 253.

48. Once the employer articulates such an explanation,

“the presumption [of discrimination] raised by the prima facie

case is rebutted and drops from the case.” See St. Mary’s Honor

Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The burden of

production then shifts back to the employee and merges with the

employee's ultimate burden to prove that he or she has been the

victim of intentional discrimination. See Burdine , 450 U.S. at

252.

49. Under the ADA, a physical impairment that

substantially limits one or more major life activities is a

disability. See 42 U.S.C.S. § 12102(2)(A). A qualified

individual with a disability is a person with a handicap who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such person

holds or desires. See 42 U.S.C.S. § 12111(8).

50. Under 42 U.S.C.S. Section 12102(2), one can establish

the existence of a disability by showing the following:

(1) a physical or mental impairment

that substantially limits one or more of the

major life activities of such individual;

(2) a record of such impairment; or

(3) being regarded as having such an

impairment.

51. Merely having an impairment does not make one disabled

for purposes of the ADA. See Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams , 534 U.S. 184, 195 (2002). The

disability or perceived disability must be a substantial

limitation. See Id. at 195.

52. Pursuant to 29 C.F.R. Sections 1630.2(j)(2)(i) through

1630.2(j)(2)(iii), the following factors should be considered

when determining whether an individual is substantially limited

in a major life activity:

(i) The nature and severity of the

impairment;

(ii) The duration or expected duration

of the impairment; and

(iii) The permanent or long-term

impact, or the expected permanent or long-

term impact of or resulting from the

impairment.

53. In order to sustain a charge of discrimination based

on a perceived disability, Petitioner must establish a prima

facie case of discrimination. See Rosenbaum v. Southern Manatee

Fire and Rescue District , 980 F. Supp. 1469 (M.D. Fla. 1997);

Andrade v. Morse Operations, Inc. , 946 F. Supp. 979, 984 (M.D.

Fla. 1996).

54. Petitioner must show by a preponderant of the evidence

that: (a) she is a member of a protected class; (b) she

suffered one or more adverse employment actions; (c) she

received disparate treatment from other similarly situated

individuals in a non-protected class; and (d) that there is

sufficient evidence of bias to infer a causal connection between

her perceived disability and her disparate treatment. See

Andrade , 946 F. Supp. at 982. Petitioner has not established

the first, third, and fourth prongs of her prima facie burden.

55. First, Petitioner failed to prove that she is the

member of a protected class, i.e. an individual perceived by

Respondent as having a disability. There is no evidence that

Respondent perceived Petitioner as having a substantial

limitation of a major life activity.

56. At MMI, after surgery for carpel tunnel syndrome,

Petitioner's PIR was a mere six percent. Respondent properly

relied on essential function evaluations to determine whether

Petitioner was able to perform the duties of a Clerk Typist

Specialist or a Correctional Officer. Apart from the results of

those evaluations, no one on Respondent's staff perceived that

Petitioner was substantially limited in her ability to perform

particular functions of a specific job or a broad class of jobs.

57. As to the third prong, Petitioner did not show that

she received less favorable treatment than employees who were

not disabled. Respondent simply followed its policy to

accommodate Petitioner's initial medical problem until she

reached MMI. Because Respondent could not perform the duties of

a Correctional Officer at that time, Respondent identified

another job that Petitioner was able to perform. When

Petitioner's physician released Petitioner to work as a

Correctional Officer, Respondent agreed that Petitioner could

apply and compete for such a position.

58. Regarding the fourth prong, Petitioner did not

establish a causal connection between Respondent's knowledge of

Petitioner's carpel tunnel condition and Respondent's failure to

promote/rehire Petitioner as a Correctional Officer. Petitioner

submitted no direct evidence or indirect evidence of such a

connection apart from Respondent's adherence to policies

regarding employees who suffer an on-the-job injury.

59. To the extent that Petitioner met her prima facie

burden, Respondent provided legitimate non-discriminatory

reasons for not promoting/rehiring Petitioner. As for CCI,

Warden Johnson believed Petitioner was already working at LCI.

Warden Douglas at LCI based his decision on Petitioner's past

and current employment history, especially as it relates to

Petitioner's attendance problems.

60. On the other hand, Petitioner has not proved that

Respondent's reasons for not letting her work as a Correctional

Officer are mere pretext for intentional discrimination. The

greater weight of the evidence shows that Respondent did not

discriminate against Petitioner based on a perceived disability.

61. In order to establish her retaliation claim,

Petitioner was required to prove that: (1) she engaged in

statutorily protected activity; (2) she suffered an adverse

action; and (3) there was a causal link between the adverse

action and her protected activity. See Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1260 (11th Cir. 2001).

62. Petitioner engaged in statutorily protected activity

when she complained to Secretary McNeil in December 2008 and

when she filed her complaint with FCHR in August 3, 2009. She

suffered an adverse action when she was terminated later in

August 2009. However, Petitioner’s retaliation claim fails

because there is no causal link between the adverse action and

the protected activity. Respondent terminated Petitioner

because she attempted to shred a large volume of documents that

she was supposed to file. Petitioner's termination was not

related in any way to Petitioner’s initial discrimination

complaint.

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 11th day of May, 2010, 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 May, 2010.

COPIES FURNISHED :

Gertrude Berrieum

5032 Martin Luther King Road

Bristol, Florida 32321

Todd Evan Studley, Esquire

2601 Blair Stone Road

Tallahassee, Florida 32399

Walter A. McNeil, Secretary

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Kathleen Von Hoene, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

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.