13-000025 Terra Franklin-Shaw vs. Jacksonville Housing Authority Status: Closed Recommended Order on Monday, March 3, 2014.

Summary: Petitioner did not prove that Respondent discriminated against her by failing to provide reasonable accomodation for her disability in violation of section 760.10.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRA FRANKLIN - SHAW ,

Petitioner ,

vs. Case No . 1 3 - 0025

JACKSONVILLE HOUSING AUTHORITY ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this c ase was heard on October 18, 2013

and November 22, 2013 , by video teleconference at sites in

Tallahassee, Florida and Jacksonville, Florida , before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCE S

For Petitioner: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738

For Respondent: Wendy L. Mummaw, Esquire

Katy A. Harris , Esquire

Office of General Counsel

117 We st Duval Street, Suite 480

Jacksonville , Florida 32 202

STATEMENT OF THE ISSUE

Whether the Petitioner was subject to an unlawful

employment practice by Respondent, Jacksonville Housing

Authority , on account of h er disability , in violation of s ecti on

760.10, Florida Statutes.

PRELIMINARY STATEMENT

On or about June 5, 2012 , Petitioner, Terra Franklin - Shaw

(Petitioner) , filed a complaint of discrimination w ith the

Florida Commission on Human Relations (FCHR) which alleged that

Respondent, Jacksonvill e Housing Authority ( JHA or Respondent ) ,

violated s ection 760.10, Florida Statutes, by discriminating

against h er on the basis of h er disability .

On December 5, 2012 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by wh ich the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On December 26,

2012 , Petitioner filed a Petition for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strati ve

Hearings to conduct a final h earing.

T he final hearing was initially set for March 7, 2013. On

February 28, 2013, a motion to continu e the final hearing was

filed by Petitioner. The motion was granted, and the hearing

was rescheduled for July 11 - 12 , 2013. On April 19, 2013,

Respondent moved to continue the rescheduled hearing based on

the unavailability of a critical witness. The motion was

granted, and the hearing was rescheduled for August 8 - 9 , 2013.

On July 29, 2013, Petitioner moved to continu e the rescheduled

hearing based on a family medical matter. The motion was

granted, and upon the filing of a status report by the parties,

the hearing was rescheduled for October 18, 2013 . On October 7,

2013, this matter was transferred to the undersigne d for further

proceedings.

A prehearing stipulation was filed by the parties on

October 14, 2013. Those facts admitted by both parties are

hereby accepted and adopted without restatement herein.

On October 15, 2013, Respondent filed a motion in limi ne to

limit evidence of the condition of the JHA office building to

which Petitioner was assigned as it may have existed more than

one year prior to the filing of the complaint with the FHRC, and

to limit evidence of any claim based on retaliation for

Peti tionerÓs previous claim of discrimination filed with the

f ederal Equal Employment Opportunities Commission. The motion

was taken up at the hearing, and discussion of the basis for the

rulings on the issues may be found in the transcript of the

hearing. T o summarize, the motion in limine regarding the

condition of the building was denied, with the admissibility of

evidence of building conditions to be determined on a case - by -

case basis . T he motion in limine regarding the claim of

retaliation was granted, since retaliation was not identified as

a basis for PetitionerÓs claim in the initial charge of

discrimination.

The hearing commenced as scheduled on October 18, 2013 .

The hearing was not completed in the time allotted , and was

thence scheduled for compl etion on November 22, 2013. The

hearing was reconvened and concluded as scheduled.

At the final hearing, Petitioner testified on h er own

behal f , and presented the testimony of Anthony Whitted , a former

inspector and maintenance mechanic with the JHA ; M ic hael Sapp , a

former truck driver for the JHA , who was terminated from

employment on February 27, 2012 ; and Ora Middleton , a former co -

worker of Petitioner in the J HA Ós office of Resident Services ,

who was discharged from employment with the J HA in March 20 12 .

Petitioner Ó s Exhibit A .1, A.10 through A.32, and A.34; Exhibit

B.1 through B.6; Exhibit D.1, D.2, and D.3; Exhibit E.1 through

E.3; Exhibit F.1 through F.4, and F.7; Exhibit G, pages 1

through 30; Exhibit H, pages 1 through 4; and Exhibit I, pages 1

t hrough 16 were received into evidence.

At the final hearing, R espondent presented the testimony of

M ark Mongon , a licensed mold assessor and mold remediator

employed by TCB Envirocorp; and Joyce Quaintance Couch, the JHA

vice - president of R esident S ervice s . R espondentÓs Exhibit 1 ;

Exhibit 2; Exhibits 4 through 6; Exhibit 7.1 through 7.9;

Exhibit 8.1 through 8.17; Exhibit 9; Exhibit 10.1 through 10. 82;

Exhibit 11.1 through 11.21; and Exhibits 12 through 16 were

received into evidence.

A three - volume Transcript of the hearing was filed on

November 22, 2013 (volumes I and II) and December 12, 2013

(volume III) . At the request of the parties, proposed

recommended orders were to be filed on January 21, 2014. The

date was twice extended, with proposed or ders finally due on

February 10, 2014. The parties timely filed their post - hearing

P roposed R ecommended O rder s, which have been considered in the

preparation of this Recommended Order. References to statutes

are to Florida Statutes (201 2 ) unless otherwis e noted.

FINDINGS OF FACT

1 . Petitioner , Terra Franklin - Shaw was , at all times

relevant to this matter , an employee of JHA .

2 . JHA is a municipal - housing authority with the authority

to, among other duties, administer public housing and affordable

ho using programs in the City of Jacksonville . Respondent

employs more than 15 full - time employees at any given time.

3 . Among the properties owned or managed by JHA is an

administrative office and maintenance building located at

1085 Golfair Boulevard, Ja cksonville, Florida (1085 Golfair).

Among the offices at 1085 Golfair were those of Resident

S ervices.

4 . Petitioner had been employed by JHA since September 6,

2000 .

5 . Petitioner was a senior service coordinator in R esident

S ervices . The position of senior service coordinator requires

supervision of three other employees as an essential element of

the position .

6 . The senior service coordinator is responsible for

managing a caseload of participants in various JHA programs, and

is required to me et with and provide counseling for program

participants at the R esident S ervices offices as an essential

element of the position .

7. Program - participant files are kept at the R esident

S ervice s offices at 1085 Golfair. F iles maintained by JHA

contain con fidential information regarding program participants.

8 . In June, 2010, Petitioner became ill. She had

difficulty breathing, and experienced skin irritation. Over the

next months, she was seen by several different doctors.

9 . The parties stipulated that Petitioner Ðmeets the

definition for being disabled pursuant to the Americans with

Disabilities Act (ADA ) regarding her allergies, asthma, and

pulmonary issues.Ñ There is, however, no credible, non - hearsay

evidence to support a finding that Petitione r Ó s allergies,

asthma, and pulmonary issues were caused by conditions at 1085

Golfair.

10 . On May 26 , 2011, Petitioner received a note from her

physician indicating that she should avoid mold due to mold

allergies. Petitioner testified that she provided the note to

Ms. Couch and to the JHA human relations director.

11 . On May 27, 2011, JHA commissioned a licensed mold

asse ss ment and remediation company, TCB Envirocorp (TCB) to

perform air sampling at 1085 Golfair. TCB performed a visual

inspection of the R esident S ervices suite of offices in which

Petitioner worked, and performed air sampling in those areas.

12 . Visual inspection of horizontal and vertical surfaces

in R esident S ervices revealed no visible mold.

13 . The results of the air quality sampling showed levels

of mold outside of the building were roughly five times higher

than levels of mold in Resident Services . Applying standard

industrial hygiene practices, the R esident S ervices offices had

no known hazard condition, and were safe for occupancy.

14 . The results of the May 27, 2011 , sampling were

memorialized in a June 5, 2011 report.

15 . On June 10, 2011, Petitioner received a doctorÓs note

again indicating that Petitioner should be excused from exposure

to mold.

16 . On June 20, 2 011, JHA called TCB back to 1085 Golfair

to perform a more comprehensive mold inspection of the entire

building.

17 . TC B performed another visual inspection of Resident

Services , and again observed no visible evidence of mold in th at

office suite .

18 . TCB did not e some visible mold behind the wallpaper in

one front - facing office in a different area of the building that

had resulted from a leaking window seal, and in the drywall

ceiling above the HVAC room that had resulted from condensation

from the above - ceiling ducting. Mr. Mongon described the

visible mold as Ð very minor in nature. Ñ Both areas were well

removed from PetitionerÓs office. TCB recommended that those

areas be cleaned, and that a HEPA vacuum and HEPA filter be

used.

19 . The June 2 0, 2011 , inspection and air sampling again

showed levels of mold outside of the building to be

substantially higher than levels of mold inside of the building .

Thus, the building in general - - and the R esident S ervice s

offices specifically - - was safe for occupancy .

20 . On July 7, 2011, Petitioner went on medical leave

pursuant to the Family Medical Leave Act (FMLA).

21 . On September 13, 2011, Petitioner was cleared to

return to work, with the instruction that she should avoid

construction dust or mold areas.

22 . Petitioner returned to work o n September 21 , 2011.

23 . Upon her return to work, Petitioner was assigned to

the JHAÓs 1085 Golfair Boulevard offices.

24 . The day after her re turn from FMLA leave,

September 22, 2011, Petitioner visited the hospital. She was

discharged before noon with instruction to engage in no

strenuous activity, to rest, and to not work for the remainder

of the day or t he following day. The activity - restriction note

offered no suggestion of the reason for the visit or t he

restriction.

25 . Over the course of the next six months, after some - -

but not all - - of her absences, Petitioner presented JHA with

notes from various physicians establishing that she had been

seen by the physician and authorizing her retur n to work. 1/

Several notes stated that Petitioner should avoid construction

dust, mold, and Ðfumes.Ñ Most , however, either authorized

PetitionerÓs re t urn to work without restriction, or were silent

as to any respiratory restrictions.

26 . After Petitioner Ós retu rn from FMLA leave , w henever

there were activities at 1085 Golfair that Petitioner believed

might aggravate her breathing conditions, e.g. painting, JHA

allowed Petitioner to temporarily work from offices in other

buildings until the activity was completed .

27 . On or about October 31, 2011, painting was scheduled

to be performed at one of the alternate office buildings to

which Petitioner was assigned while painting was being performed

at 1085 Golfair. JHA was preparing for its annual HUD

inspection, and was Ðsprucing up all the properties.Ñ

Petitioner did not ask to work from another location, but rather

called Ms. Couch to advise her that she was going to stay home

for the day.

28 . Whenever there was construction at 1085 Golfair,

Petitioner was able to use the front door for ingress and

egress, and was able to access the bathrooms and break room

without having to go through the areas undergoing construction.

29 . Petitioner never requested that she be allowed to work

from her home. Given the nature of her essential job duties,

such a request, if made, would not have been feasible.

30 . For the two - week period from September 26, 2011

through October 9 , 2011, Petitioner was at work for 49.5 hours ,

and took 30.5 hours of leave without pay.

31 . For th e two - week period from October 10, 2011 through

October 2 3 , 2011, Petitioner was at work for 61 .0 hours , took

3 .0 hours of leave without pay , and took 16 .0 hours of workers Ó

compensation leave for days on which painting was being

performed at 1085 Golfair.

32 . For the two - week period from October 24, 2011 through

November 6 , 2011, Petitioner was at work for 42 .0 hours, took

22.0 hours of leave without pay, took 8.0 hours of annual leave,

and t ook 8.0 hours of personal holiday leave .

33 . For the two - week period from November 7, 2011 through

November 20 , 2011, Petitioner was at work for 37.75 hours, took

32.75 hours of leave without pay, and took 1.5 hours of annual

leave. One day was a holiday.

34 . For the two - week period from November 21, 2011 through

December 4 , 2011, Petitioner was at work for 43 .0 hours, took

11.55 hours of leave without pay, and took 9.45 hours of annual

sick leave. Two days were holidays.

35 . The record reflects that many of PetitionerÓs absences

were requested without complyin g with the notice requirements

established in JHA Ós employee handbook. Petitioner would often

call in sick on the day she was going to take off, or would

occasionally not call in but would present a doctorÓs note

after - the - fact. Thus, her staff and progr am participants were

often confused and uncertain as to when and whether Petitioner

might be in the office.

36 . During PetitionerÓs frequent absences from work , or

when she was working at locations other than 1085 Golfair, she

was not able to perform her supervisory duties on a regular,

consistent basis . Her supervisory duties were performed by

Ms. Couch during those periods.

37 . During PetitionerÓs frequent absences from work , or

when she was working at locations other than 1085 Golfair, she

was not a ble to meet with program participants on a regular,

consistent basis when they visited R esident S ervices. In

PetitionerÓs absences, her staff had to take on her workload.

In addition to handling clients, they were responsible for

educational programs tha t were being organized and planned for

the participants. Ms. Couch received complaints from program

participants that they could not reach Petitioner and were being

neglected .

38 . Petitioner testified that she could adequately perform

her duties as seni or service coordinator from locations other

than 1085 Golfair as long as she had access to participant

files. The files contain confidential information regarding

program participants. The R esident S ervices office s ha ve

secured filing cabinets that may n ot be readily available at

other locations. Ms. Couch testified convincingly that the

security of the files is at risk when they are taken from the

1085 Golfair offices.

39 . There are times when files must be available to other

staff members of R eside nt S ervice s , as when a caseworker is

absent or unavailable when a participant appears at the office.

40 . Having participant files at a location other than

R esident S ervice s is not a reasonable or practical

accommodation.

41 . During the period from Sep tembe r 21, 2011 until early

December 2011, PetitionerÓs frequent absences from work created

confusion and ÐchaosÑ in Resident Services. A s a result of

PetitionerÓs failure to perform her essential job functions, JHA

decided to shift her duties from those involving supervising

employees and meeting with program participants . Instead,

Petitioner was to be assigned to correcting escrow accounts kept

for program participants in the family self - sufficiency program .

42 . The family self - sufficiency program i s a program of

the federal Department of Housing and Urban Development. Rents

for subsidized housing are based on the income of the

p articipant. Through the family self - sufficiency program,

participants who find employment may place the monthly amount of

their rent attributable to their increase d income in to an

escrowed savings account . At the end of five years of

employment, the participant may draw on the account for down

payment assistance on a home, to pay for education, or to engage

in other activit ies designed to improve their quality of life.

43 . Due to errors over time in participant qualification

information and the failure to apply changing HUD income limits ,

the amount held in many of the participantsÓ accounts was

inaccurate . Correcting the escrow accounts was important

because federal funding was, in part, depend e nt upon the local

program being able to adequately manage and account for program

funds.

44. It was determined that Petitioner had the skill and

experience to review particip ant files and make manual

calculations and corrections to their accounts. Ms. Couch

testified that Petitioner was capable of manually correcting

account files better than any other employee, herself included.

45 . There were between 270 and 300 particip ants in the

family self - sufficiency program. The time needed for correcting

participant accounts varied based on the age of the account.

For recently opened accounts, little correction would be

necessary, and a file could be completed in as little as fif teen

minutes. For an account that was nearing the five - year

completion date, collecting the participant data and manually

applying the correct HUD income limits could take as long as an

hour - and - a - half per file. Ms. Couch testified that, on average,

and without other duties to interfere, one could reasonably

expect to review and correct six to eight files per day.

46 . On December 1, 2011, JHA prepared a memorandum setting

forth PetitionerÓs revised duties to review all participant

escrow accounts for the family self - sufficiency program. The

memorandum provided that Petitioner would complete the review of

an average of 20 files per week. The evidence demonstrates th at

20 files per week was a reasonable and achievable expectation .

The memorandum set M arch 31, 2012 , as the date by which the

review process would be complete.

47 . On December 6, 2011, Petitioner signed the memorandum

expressing her agreement with its terms.

48 . After December 6, Petitioner never asked to be moved

from 1085 Golfair.

49 . For the two - week period from December 5, 2011 through

December 1 8 , 2011, Petitioner was at work for 44.5 hours, and

took 35.5 hours of leave without pay.

50 . For the two - week period from December 19, 2011 through

January 1, 2012 , Petitioner was at w ork for 36.0 hours, and took

28.0 hours of leave without pay . Two day s were holiday s .

51 . For the two - week period from January 2, 2012 through

January 1 5 , 2012, Petitioner was at work for 48.5 hours, took

7.5 hours of leave without pay , and took 16.0 ho urs of annual

sick leave. One day was a holiday.

52. For the two - week period from January 16, 2012 through

January 2 9 , 2012, Petitioner was at work for 46.75 hours, took

10.5 hours of leave without pay , took 11.5 hours of workers Ó

compensation leave, an d took 3.25 hours of annual leave. One

day was a holiday.

53 . Petitioner testified that when she was at work, she

was capable of performing the duties assigned to her , and that

the only reason she could not perform the escrow corrections was

Ðbecause I was out sick . Ñ

54 . Despite the extraordinary amount of time missed from

work, PetitionerÓs time entries show that she was at work for a

total of 175.75 hours between December 5, 2011 and January 27,

2012.

55 . By January 27, 2012, Petitioner had complete d the

review of 20 files. Ms. Couch advised Petitioner of her

concerns with the pace of completion.

56. For the two - week period from January 30, 2012 through

February 12, 2012, Petitioner was at work for 51.5 hours, took

26.5 hours of leave without pay , and took 2.0 hours of annual

leave.

57. For the two - week period from February 13, 2012 through

February 26, 2012, Petitioner was at work for 56.0 hours, took

11.0 hours of leave without pay , and took 5.0 hours of annual

leave. One day was a holiday.

58 . On February 16, 2012, Ms. Couch advised Petitioner in

writing of her concerns with the pace of the escrow review.

Ms. Couch testified that Petitioner had provided her with 22

completed files, far fewer than the 20 files per week agreed

upon, and well under the pace that might be expected if a pace

of one file per hour - and - a - half were met.

59 . On February 27, 2012, Ms. Couch again expressed her

concern with the pace of review, noting that , as of that date, a

total of 30 files had been completed and s ubmitted to the

accounting department to be updated.

60. For the two - week period from February 27, 2012 through

March 11, 2012, Petitioner was at work for 54.75 hours, took

19.75 hours of leave without pay , and took 5.5 hours of annual

leave.

61. For the two - week period from March 12, 2012 through

March 25, 2012, Petitioner was at work for 66.0 hours, took 13.5

hours of leave without pay , and took 0.5 hours of annual leave.

62 . By March 21, 2012 , roughly 15 weeks after PetitionerÓs

agreement to rev iew 20 files per week, Petitioner had completed

the review of 87 files.

63 . Petitioner did not go to work on March 26 or 27, 2012.

On March 28, 2012, Petitioner visited her physician, who

indicated Petitioner was under her care for asthma and severe

rea ctive airway disease , and recommended that Petitioner refrain

from working for the next 30 days . Thereafter, Petitioner did

not work through April 2 9 , 2012 , and took annual leave or leave

without pay for that period .

64 . By April 19, 2012, Ms. Couch ha d come to the

conclusion that Petitioner was incapable of performing the

duties of a senior service coordinator in R esident S ervices.

She prepared a recommendation of termination and submitted it to

the President and CEO of JHA. The basis of her recommen dation

was PetitionerÓs excessive absenteeism , the hardship that her

absences posed for program participants and for the staff that

she supervised, and PetitionerÓs failure to perform the assigned

task of performing escrow account review.

65 . Petitioner returned to work on April 30, 2012 , and

worked on that day and the following day, May 1, 2012 .

66 . Petitioner took leave without pay from May 2, 2012

through May 4, 2012 for an unspecified issue regarding her

sisterÓs ÐconditionÑ that required her to tr avel to Virginia.

The request to be off on those days was sent by e - mail on May 2,

2012 at 12:56 p.m. It is not known when the request was

received by Ms. Couch.

67 . Petitioner was terminated from employment on May 7,

2012.

Reasonable Accommodation

68 . When Petitioner returned to work from her FMLA leave

in September 2011, with a recommendation that she avoid exposure

to mold, JHA immediately contracted with a qualified

environmental firm to assess whether 1085 Golfair had problems

with mold. The i nitial assessment and subsequent more - detailed

asse ssment revealed that indoor air - mold levels were at

concentrations much lower than the ambient outside air. The

assessment revealed two areas in the building with minor mold

problems, neither of which wer e in proximity to Resident

S ervices or PetitionerÓs office.

69 . Petitioner admitted that JHA allowed her to work from

other locations when painting was scheduled, except for a single

occasion when all of the alternative locations were undergoing

maintena nce in preparation for its annual HUD inspection. In

such instances, the central maintenance director would advise

Ms. Couch when painting was scheduled, and Ms. Couch would then

temporarily assign Petitioner to an alternative worksite while

the painting was ongoing.

70 . When Petitioner was working at locations other than

1085 Golfair, JHA provided her with a laptop computer to

facilitate her temporary off - site work.

71 . On or about January 19, 2012, PetitionerÓs physician

recommended that she wear a mask at work. Upon being presented

with the doctorÓs recommendation, Ms. Couch provided Petitioner

with a catalog from Office Depot, the company with which JHA

contracts for office supplies. Petitioner was asked to select

the type of mask she wanted. JH A did not want to purchase a

mask without PetitionerÓs input so as to avoid buying something

that would not accommodate her need.

72 . Upon going through the normal procurement process, JHA

ordered and provided Petitioner with masks for her use by the

beg inning of the following week , which is found to be a

reasonable period of time . Although Ms. Couch was prepared to

procure a mask in the 50 to 60 dollar range, the masks

determined by Petitioner to be acceptable were simple Ðninety -

nine centÑ masks. 2 /

73 . In addition to the masks recommended by PetitionerÓs

physician, JHA also provided Petitioner with a HEPA air filter

for her office. The unit was provided to Petitioner without her

having to ask or having to provide a doctorÓs request.

74 . Petiti oner suggested that JHA should have allowed her

to permanently work from other JHA locations as a reasonable

accommodation for her respiratory disability. In this case,

working from 1085 Golfair was an essential function of

PetitionerÓs job as a superviso r. It is not a reasonable

accommodation to have confidential files moved to and secured at

another location, away from other employees who may need to

access the files to meet the needs of program participants .

Furthermore, it is n ot a reasonable accommo dation to require

program participants go to different locations depending on who

their caseworker might be.

Ultimate Findings of Fact

75. The evidence in this case demonstrates that JHA made

reasonable accommodations to meet any known physical limitatio ns

asserted by Petitioner.

76 . JHA took timely and reasonable steps to demonstrate

that 1085 Golfair was not infested with mold as alleged by

Petitioner. The evidence in that regard was convincing.

77 . JHA allowed Petitioner to work from alternate

locations when activities, most notably painting, were to be

conducted at 1085 Golfair, and provided her with a laptop

computer to facilitate her off - site work.

78 . Petitioner had means of ingress and egress, and access

to break rooms and restrooms, t hat allowed her to avoid areas of

construction at 1085 Golfair when such were occurring.

79 . JHA provided Petitioner with breathing masks of her

choice when asked. JHA further provided Petitioner with a HEPA

air filter for her office.

80 . JHA allowed Petitioner to perform duties that were

with in her level of skill and experience, but that would not

require that she be continually available to supervise employees

and meet with participants. There was no suggestion by any

party to this proceeding that PetitionerÓs salary or benefits

were altered as a result o f the transfer of duties.

81 . T here were no accommodations related to conditions at

1085 Golfair requested by Petitioner that were not met by JHA.

82 . Petitioner suggested that she could have been

accommodated by being allow ed to work at a location other than

1085 Golfair. Given her position as a supervisory senior

service coordinator, the accommodation suggested would impose an

undue hardship on the operation of the JHA. There was no

credibl e, competent , substantial evidence adduced at the hearing

to suggest otherwise.

CONCLUSIONS OF LAW

83 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant the Division of Administrative Hearings jurisdiction over

the subject matter of this proceedi ng and of the parties.

Discrimination

84 . Section 760.10 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

discriminate against any i ndividual 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.

85 . Petitioner maintain s that the JHA discriminated

agai nst her by failing to provide an alternate work environment

as a reasonable accommodation for her disability .

86 . Section 760.11(1) provides that Ð[a]ny person

aggrieved by a violation of ss. 760.01 - 760.10 may file a

complaint with the [FCHR] within 365 days of the alleged

violation . . . .Ñ Petitioner timely filed h er complaint.

87 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable cause

. . . .Ñ Following the FCHR determination of no cause,

Petitioner timely filed h er Petition for Relief requesting this

hearing.

88 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

F lorida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Fl a . Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

N . Am. , LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Byrd v. BT Foods,

Inc. , 948 So. 2d 921, 925 (Fla. 4th DCA 2007); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

89 . In addition, "because FCRA is patterned after Title

VII and rela ted federal statutes and regulations, courts

construe FCRA in conformity with Title VII and the Americans

with Disabilities Act (ADA)." Byrd v. BT Foods, Inc. , 26 So. 3d

600, 605 (Fla. 4th DCA 2009); see also Byrd v. BT Foods, Inc. ,

948 So. 2d 921, 925 (F la. 4th DCA 2007); Lenard v. A.L.P.H.A. "A

Beginning", Inc. , 945 So. 2d 618, 621 (Fla. 2d DCA 2006); Ross

v. Jim Adams Ford, Inc. , 871 So. 2d 312, 314 (Fla. 2d DCA 2004).

90 . Chapter 760, Part I does not contain an explicit

provision establishing an empl oyer's duty to provide reasonable

accommodations for an employee's handicap, but by application of

the principles of the ADA, such a duty is reasonably implied .

Brand v. Fl a . Power Corp. , 633 So. 2d at 511 , n.12 .

91 . In applying the ADA, Florida courts recognize that:

The ADA provides that a "qualified

individual" is an individual with a

disability who, with or without reasonable

accommodation, can perform the essential

functions of the job . 42 U.S.C.A.

§ 12111(8). If a qualified individual with

a disa bility can perform the essential

functions of the job with reasonable

accommodation, then the employer is required

to provide the accommodation unless doing so

would constitute an undue hardship for the

employer . 42 U.S.C.A. § 12112(b) ( 5)(A) .

Reasonable accommodations to the employee

may include, but are not limited to,

additional unpaid leave, job restructuring,

a modified work schedule, or reassignment .

42 U.S.C.A. § 12111(9)(B).

McCaw Cellular CommcÓns . v. Kwiatek , 763 So. 2d 1063, 1065 - 1066

(Fla. 4t h DCA 1999) .

92 . Petitioner ha s the burden of proving by a

preponderance of the evidence that the JHA committed an unlawful

employment practice. See St. Louis v. Fla. Int'l Univ. , 60 So.

3d 455 (Fla. 3 rd DCA 2011); Fla. Dep't of Transp. v. J.W.C. Co. ,

3 96 So. 2d 778 (Fla. 1st DCA 1981).

93 . One option for establishing that discrimination has

occurred is by direct evidence. Valenzuela v . GlobeGround N .

Am. , LLC , 18 So. 3d at 22. Direct evidence is evidence that, if

believed, would prove the existence of discriminatory intent

without resort to inference or presumption. Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); Holifield v. Reno ,

115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that

ÐÒonly the most blatant remarks, whose in tent could be nothing

other than to discriminate . . .Ó will constitute direct

evidence of discrimination.Ñ Damon v. Fleming Supermarkets of

Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations

omitted).

94 . The record of this proceeding contai ns no direct

evidence of any bias on the part of the JHA related to

PetitionerÓs disability .

95 . In a typical case of alleged discrimination, in the

absence of direct evidence of discrimination, the focus of the

prima faci e case would shift to the test f or determining w hether

there was circumstantial evidence of an employerÓs intent to

discriminate first established by the Supreme Court i n McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973), and as refined in

Texas De partment of Community Affairs v. Bur dine , 450 U.S. 248

(1981) and St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993) . However, PetitionerÓs claim of discrimination is not

based on disparate treatment or other circumstantial evidence of

discrimination, but on the JHAÓs failure to provide reasonable

accommodation for her disability.

96 . While discrimination based on disparate treatment

requires a showing of some discriminatory intent, disability

discrimination based upon a n employer's failure to provide an

employee with a reasonable accom modation does not. In that

regard:

Unlike other types of discrimination claims,

however, a Ðfailure to accommodateÑ claim

under the ADA does not require a showing of

discriminatory intent. . . . ÐRather, the

failure to provide reasonable accommodations

i s a per se violation of the ADA, regardless

of intentions.Ñ . . . ÐIn other words, a

claim that an employer failed to . . .

provide reasonable accommodations to

qualified employees, does not involve a

determination of whether that employer

acted, or faile d to act, with discriminatory

intent.Ñ . . . Such claims require only a

showing that the employer failed Ðto fulfill

its affirmative duty to Òmake reasonable

accommodation to the known physical or

mental limitations of an otherwise qualified

applicant or employee with a disability Ó

without demonstrating that Ò the

accommodation would impose an undue hardship

on the operation of the business. ÓÑ

Accordingly, . . . the McDonnell Douglas

burden - shifting framework, Ð while

appropriate for determining the existenc e of

disability discrimination in disparate

treatment cases, is not necessary or useful

in determining whether a defendant has

discriminated by failing to provide a

reasonable accommodation. Ñ (citations

omitted) .

Wright v. Hosp. Auth. o f Houston C nty . , 2 009 U.S. Dist. LEXIS

7504 *18 - 19 (M.D. Ga. Feb. 2, 2009) ; accord Nadler v. Harvey ,

No. 06 - 12692, 2007 U.S. App. LEXIS 20272 **10 - 11 (11th Cir.

August 24, 2007); Jones v. G a . DepÓt of Corr . , No. 1:07 - CV - 1228 -

RLV, 2008 U.S. Dist. LEXIS 22142 **14 - 15 (N.D. Ga . March 18,

2008).

Reasonable Accommodation

97 . Related to the more fundamental issue of whether

Petitioner was a Ðqualified individualÑ to whom reasonable

accommodation was owed, a n analysis of the extent to which an

employer must tolerate excessive abs enteeism is appropriate.

98 . A detailed discussion of the role of absenteeism in

employment decisions was undertaken by the Second Circuit Court

of Appeals in EEOC v. Yellow Freight Sys tem , Inc. , 253 F.3d 943

(7th Cir. 200 1 ). In that case, the court det ermined Ðthat in

most instances the ADA does not protect persons who have

erratic, unexplained absences, even when those absences are a

result of a disabilityÑ because Ð no business is Ò obligated to

tolerate erratic, unreliable attendance. Ó Ñ Id. at 948 (qu oting

Waggoner v. Olin Corp. , 169 F.3d 481, 485 (7th Cir. 1999)). The

court further held that:

Indeed, the absence of employees is

disruptive to any work environment .

However, it is not the absence itself but

rather the excessive frequency of an

employee 's absences in relation to that

employee's job responsibilities that may

lead to a finding that an employee is unable

to perform the duties of his job.

Id. at 949. The undersigned is in agreement with the

comprehensive analysis of the issue provided by E EOC v. Yellow

Freight Sys tem , Inc. and the cases cited therein.

99 . Petitioner did not demonstrate that JHA failed to make

reasonable accommodation to meet her disability based on

exposures to dust, mold , fumes, or other indoor air quality

issues. As i n the case of Buckles v. First Data Res ources ,

Inc. , 176 F.3d 1098 (8th Cir. 1999) , this case is one in which

Ðthere is only so much avoidance that can be done before an

employer would essentially be providing a bubble for an employee

to work in . . . . A n employer is not required by the ADA to

create a wholly isolated work space for an employee that is free

from numerous possible irritants, and to provide an unlimited

absentee policy. Ñ Id. at 1101.

100 . The evidence in this case clearly demonstrated th at

JHA took reasonable measures as requested by Petitioner to allow

her to perform her duties at 1085 Golfair, and provided

accommodations that went beyond those requested. Thus, JHA

provided the reasonable accommodations required of it under the

Florida Civil Rights Act, as construed under the principles of

the ADA.

Undue Hardship on JHAÓs Operations

101 . Assuming that Petitioner made a prima facie showing

that JHA had failed to provide reasonable accommodation to

Petitioner for her disability -- which she did not -- the burden

would shift to JHA to demonstrate that accommodation as

requested by Petitioner would impose an undue hardship on the

JHAÓs operations.

102 . The evidence demonstrates that it was a necessary

element of PetitionerÓs job that sh e be located in the same

physical location as the employees she was expected to

supervise, and that program participants would be expected to

appear for counseling and assistance. In that regard:

Often, Ðan essential function of any

government job is an a bility to appear for

work (whether in the workplace or, in the

unusual case, at home) and to complete

assigned tasks within a reasonable period of

time. Ñ [ Carr v. Reno , 23 F.3d 525, 530

(D.C. Cir. 1994) ] ÐÒTeam work under

supervision generally cannot be performed at

home without a substantial reduction in the

quality of the employee's performance.Ó Ñ

Amsel v. Tex. Water Dev. Bd. , 464 Fed. Appx.

395, 400 (5th Cir. 2012) (quoting Hypes v.

First Commerce Corp. , 134 F.3d 721, 727 (5th

Cir. 1998)) . Training c o - workers and

providing guidance to co - workers are tasks

that ordinarily must be performed at an

employer's worksite . See Kiburz v. England ,

361 Fed. Appx. 326, 334 (3d Cir. 2010)

(stating that the district court properly

held that Ð training, scheduling [ and

attending meetings], and [providing]

guidance [to other staff and managers] Ñ

could not be performed from home).

Morris v. Jackson , 2013 U.S. Dist. LEXIS 155513 ( D. D.C. 2013) .

103 . JHA demonstrated that allowing program participa nt

files to be remove d from the R esident S ervice s offices would

jeopardize the security of the confidential information

contained therein, and would risk making the files inaccessible

when program participants appeared at R esident S ervice s for

counseling and assistance.

104 . For the reasons set forth herein, the accommodation

of working from a remote location as proposed by Petitioner

would impose an undue hardship on the JHAÓs operations.

Conclusion

105 . Petitioner did not prove by a preponderance of the

evidence that JHA discriminated against her by failing to

provide reasonable accommodation for her disability in violation

of the Florida Civil Rights Act, section 760.10, Florida

Statutes .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent,

Jacksonville Housing Authority , did not commit an unlawful

employment practice in its actions t owards Petitioner, Terra

Franklin - Shaw , and dismi ssing the Petition for Relief filed in

FCHR No. 201 2 - 0 2 291 .

DONE AND ENT ERED this 3rd day of March, 2014 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 3rd day of March, 2014.

ENDNOTE S

1 / It must be noted that none of the notes, reports, or other

documents from PetitionerÓs medical service providers, which are

hearsay, were corroborated by competent, substantial evidence

that would be admissible over objection in a civil trial, and no

provider appe ared at the hearing to substantiate any diagnosis.

To the extent the documents demonstrate notice of a request for

reasonable accommodation, they have been accepted. They have

not been accepted as proof of the truth of any matter asserted

therein.

2/ Petitioner was critical of the length of time - - roughly one

week - - that it took for the JHA to procure the masks. However,

Petitioner failed to explain why she could not have obtained a

Ðninety - nine centÑ mask on her own, the cost of which could have

t hen been easily reimbursed from petty cash.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway Suite 100

Tallahassee, Florida 32301

Wendy Leigh Mummaw, Esquire

Office of General Counsel

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

Katy A. Harris, Esquire

Office of General Counsel

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

Cheyanne Costilla, G eneral 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 Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.