13-000826 Christine Leinonen vs. Office Of Criminal Conflict And Civil Regional Counsel Status: Closed Recommended Order on Thursday, July 25, 2013.

Summary: Petitioner did not prove that she had a handicap or that her discharge was related to the alleged handicap. Fact that discharge may have been irrational or unfair does not amount to a violation of chapter 760, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE LEINONEN ,

Petitioner ,

vs. Case No. 13 - 0826

OFFICE OF CRIMINAL CONFLICT

AND CIVIL REGIONAL COUNSEL ,

Respondent .

/

RECOMMENDED ORDER

Admi nistrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division) heard this case by

video tele conference on May 17, 2013, at sites in Lakeland and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Christine Leinonen, pro s e

9045 Woodview

Polk City, Florida 33868

For Respondent: Audrey H. Moore, Esquire

Elmer C. Ignacio, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Did Respondent, Office of Criminal Conflict and Civil

Regional Counsel (Regional Counsel), discharge Petitioner,

Christine Leinonen, because of a handicap in violation of s ection

760.10(1)(a), Florida Statutes (2012)? 1/

PRELIMINARY STATEMENT

Ms. Leinonen filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commission) alleging that

the Regional Counsel unlawfully discharged her because of a

bruised heel amounting to a handicap. The Commission determined

that there was no reason able cause to believe that Regional

Counsel committed an unlawful employment practice and dismissed

Ms. Leinonen's claim. She filed a Petition for Relief from an

Unlawful Employment Practice. On March 11, 2013, the Commission

referred the petition to the Division to conduct a formal

hearing.

On March 22, 2013, the Division set the hearing to begin on

May 17, 2013. The hearing convened as scheduled. Ms. Leinonen

testified on her own behalf . H er E xhibits 1 through 4 were

admitted in to evidence. She a lso entered Regional Counsel's

E xhibits H - 4 and H - 5 into evidence. Regional Counsel presented

testimony from Diana Golden, Amilee Kalapp, Kim Kikta, and

Ms. Leinonen. Regional Counsel's Exhibits A through E, H - 1, and

H - 2 were admitted.

At the end of the hearing, the undersigned granted the

parties ' motion to enlarge the time for filing proposed

recommended orders. The parties ordered a T ranscript which was

filed June 6, 2013. The parties timely filed proposed

recommended orders. They have been conside red in the preparation

of this R ecommended O rder.

FINDING S OF FACT

Based on the evidence presented at the final hearing and on

the entire record of this proceeding, the following F indings of

F act are made:

1. Regional Counsel is a state agency that provid es legal

representation to individuals who m a public defender's office

cannot represent because of conflicts. The office represents

indigent criminal defendants, parents and guardians in child

dependency proceedings and parties in Marchman (involuntary

tr eatment for substance abuse) and Baker Act (involuntary

commitment for mental illness) cases.

2. Ms. Leinonen is a former police officer who has been a

member of the Florida Bar since 1999. In August of 2012, she had

been working as an attorney with Regi onal Counsel for

approximately two and one - half years. Ms. Leinonen represented

parties in dependency proceedings for Regional Counsel. Her

employment with Regional Counsel , until her discharge , was

satisfactory. She also had never been the subject of c omplaints

by clients, opposing counsel, witnesses, judges, or other court

personnel.

3. Regional Counsel discharged Ms. Leinonen on August 16,

201 2 .

4. Ms. Leinonen's supervisor at the time and all times

relevant to this matter, Elisabeth Lewis, made t he termination

decision. Ms. Lewis is now deceased due to cancer.

5. The interactions that ended with Ms. Leinonen's

termination began in April 2012.

6. Ms. Leinonen is a long - distance runner. Sometime in

April 2012, Ms. Leinonen noticed a pain tha t she attributed to a

bruised heel.

7. Ms. Leinonen completed the Boston Marathon on April 16,

2012. The bruised heel did not cause her pain or problems during

the race or in her training.

8. Ms. Lewis and other co - workers knew that Ms. Leinonen

was a runner and had completed the Boston Marathon.

9. Ms. Leinonen described the pain from her bruised heel as

comparable to a toe blister. It was not disabling . B ut some

shoes aggravated the pain. Ms. Leinonen identified five pairs of

shoes that she cou ld wear comfortably without pain. Three pair s

were sandals. Two pairs were sandal - like with partially enclosed

toes. Two pairs of the sandals had heels of approximately one

inch. One pair had a one and one - half inch heel. The other two

pairs of shoes had heels of about one - half an inch.

10. Ms. Leinonen saw her physician, Marta Escobar Klapprot,

on May 25, 2012. She reported completing the Boston Marathon and

feeling well. She denied having any acute complaints, including

any complaint about her brui sed heel.

11. On May 25, 2012, Ms. Leinonen saw D r. Eberto Pineiro to

follow up on restless leg syndrome problems. At that visit, she

also reported completing the Boston Marathon and doing well.

Ms. Leinonen reported some weakness in her legs , but did no t

report any problems attributed to a bruised heel.

12. Ms. Leinonen twice signed documents acknowledging

receipt of the Regional Counsel's dress code guidelines, once on

January 12, 2010 , and once on June 5, 2012. The phrase "dress

code guidelines" refer s to the Appearance section of the Regional

Counsel's Employee Handbook.

13. The dress code guidelines state that "[e]mployees are

expected to be neat and clean in appearance and dress in

appropriate business attire . . . . " The policy explicitly

permits "dress or casual shoes including sandals" for women. It

prohibits "sweat pants, shorts (including business shorts) or

leggings" for men and women.

14. From mid - June through August 2012 , of the five pairs of

shoes she had been wearing, Ms. Leinonen could only wear the pair

she refers to as the Avon toner s andal s without pain from her

bruised heel. Although she refers to the toner sandal s as

"Avon," they are marked "Curves."

15. The "toner sandal" sole is made of a soft, spongy

material with a contoured fo ot bed and a heel height of

approximately one inch. The sandal has two straps. One broad

gray strap, trimmed in violet, rises from the rear of the shoe

and crosses over the front of the ankle. The other strap, gray

and unadorned, begins in the same plac e as the ankle strap and

flows toward the front of the shoe to join the sole in a

traditional sandal 's thin strap that fits between the great toe

and the adjacent toe. The sole of the sandal is light gray on

top and dark gray on bottom with a strip of vio let, matching the

trim of the broad ankle strap, separating the soles at the rear

half of the sandal.

16. Sometime in early August, Ms. Leinonen walked by

Ms. Lewis who was outside taking a cigarette break with Kim

Kikta. Ms. Kikta was the supervisor of t he administrative

support staff. She had no supervisory authority over

Ms. Leinonen. That day Ms. Leinonen was wearing the toner

sandals.

17. Ms. Lewis said , "Christine, what's with the shoes?"

Ms. Leinonen replied that they were therapeutic. Ms. Lewis s aid ,

"Get them off." Ms. Leinonen proceeded to her car.

18. For the next week or so, Ms. Leinonen did not wear the

toner sandals, wearing wedge - heeled shoes instead. She iced her

heel periodically during the day when in her office.

19. On Monday , Augus t 13 , 2012, Ms. Leinonen worked a nine

and one - half hour day, on her feet the entire day , wearing a

heeled shoe. At the end of the day , she experienced shooting

pains going up her foot.

20. The next day was a seven - hour day on her feet.

Ms. Leinonen wo re the toner sandal s .

21. The following day, Wednesday , August 15 , 2012 ,

Ms. Leinonen wore the toner sandals again because she was in

pain , and her ability to walk was impaired.

22. She also wore a vintage , plaid garment that she had

owned and worn in professional contexts for over 20 years. The

garment is a loose - fitting knee length item with buttons on one

side. The garment is not a full skirt. It is a divided skirt

similar to shorts with a broad flap in the front that makes it

indistinguishable fr om a skirt from the front. From the rear , an

observer can see that the garment is divided, like shorts.

Depending upon the fashion era, garments like this one have been

known as "skorts" or "culottes."

23. Ms. Leinonen had worn the garment to work at t he

Regional Counsel's office many times, to court, and to mediations

without comment or criticism.

24. Ms. Leinonen's supervisor, Ms. Lewis, was not in the

office on August 15, 2012.

25. On that day, Ms. Kikta observed Ms. Leinonen wearing

the plaid garm ent. Ms. Kikta walked into Ms. Leinonen's office

and, in her words, "confronted" Ms. Leinonen and told her that

the plaid garment was a pair of shorts and that she was not

allowed to wear it at the office.

26. Credible convincing evidence does not estab lish that

Ms. Kikta had any supervisory authority over Ms. Leinonen or

other attorneys.

27. Ms. Leinonen disagreed with Ms. Kikta's conclusion that

the garment was a pair of shorts. They argued briefly.

Ms. Leinonen , who was in pain and being corrected by an

individual who was not her supervisor , was irritated and

displayed the irritation in the tone and volume of her voice.

28. Ms. Kikta did not refer to Ms. Leinonen's toner sandals

in this encounter.

29. Ms. Kikta was upset. She told attorney Amilee Kalapp

about her confrontation of Ms. Leinonen. Ms. Kalapp was a

misdemeanor attorney who had been working with the Regional

Counsel for approximately five weeks.

30. Weeks before, Ms. Lewis had generally advised

Ms. Kalapp that Ms. Kalapp would be in cha rge of the office when

Ms. Lewis was absent.

31. Ms. Leinonen was not advised of this, however. The

evidence indicates only that Ms. Kalapp and Ms. Kikta were aware

of Ms. Lewis's delegation of authority to Ms. Kalapp. There is

no evidence that Ms. Lew is advised employees of the delegation or

that Ms. Leinonen was aware of it.

32. Ms. Kalapp texted Ms. Lewis about the situation and

asked if she could tell Ms. Leinonen she had to change clothes

before she could go to court. Ms. Lewis texted back that

Ms . Kalapp could.

33. Ms. Kalapp then confronted Ms. Leinonen and told her

that her garment was not appropriate for court or mediations and

that she had to change before going t o either.

34. Ms. Leinonen disagreed and reported that she had

conducted some r esearch indicating the garment was a pair of

"culottes , " not a "skort" or shorts. Ms. Kalapp said that did

not matter and that Ms. Leinonen had to change.

35. Ms. Leinonen, who was in pain, was upset and raised her

voice slightly. Ms. Kalapp left Ms. Lei nonen's office.

36. A little later , Ms. Leinonen came to the doorway of

Ms. Kalapp's office and repeated her view of the nature of the

challenged garment. She did not yell or create a disturbance.

37. Ms. Leinonen told Ms. Kalapp that she would leave. Sh e

also told her that she knew Ms. Kalapp would call Ms. Lewis and

that the toner sandals she was wearing were therapeutic.

Ms. Kalapp said she was not talking about the shoes that day.

38. Ms. Leinonen said she would not damage her foot for the

job and that she would not return to work until she obtained

authority from a doctor to wear therapeutic shoes.

39. Ms. Kalapp told Ms. Leinonen that she should do

whatever she thought was best for her health. Ms. Leinonen then

left.

40. The following day, Augu st 16, 2012, Ms. Leinonen sent

Ms. Lewis a text advising that she would not be in because of

medical reasons. Staff and attorneys routinely communicated with

Ms. Lewis by text message, including about taking leave. This

was a common and accepted practice in the office.

41. Ms. Leinonen's August 16 , 2012, text message stated:

Good morning! I told Amy [Kalapp] yesterday

that's [sic] I was going to be out sick

until I could be seen by a doctor who could

give me medical clearance to be able to walk

wearing t herapeutic shoes. I followed your

directive to stop wearing my shoes which

tirned [sic] out to be to my detriment. As

such I am on medical leave of absence. I

have an appointment with my doctors [sic]

office who has to then refer me to a

specialist.

42 . Ms. Lewis replied: "You are not on approved leave [ ; ]

your attendance at a 10:30 meeting is mandatory."

43. Ms. Leinonen responded:

I am sick and cannot make it to your

meeting. I have sick time, annual time, and

comp time available to me and I am entit led

to use them. I have shooting pains going up

my leg and I'm unable to walk without

therapeutic shoes. I don't want to cause

further damage to my foot. So until I can

get proper medical clearance I will not be

in to work. Thank you.

44. Credible and convincing evidence does not establish any

further communications or efforts to communicate between

Ms. Lewis and Ms. Leinonen until Ms. Lewis sent the following

letter on August 16, 2012, by email and U .S. mail . The letter

states:

Effective immediately, you are being

dismissed (August 16, 2012) from your

position as Assistant Regional Counsel with

the Office of Criminal Conflict and Civil

Regional Counsel for the Second District.

This action is being taken due to

insubordination and conduct unbecoming a

public employee.

Please return any State equipment you may

have in your possession to the office and

also make arrangements to retrieve any

personal items that may be in the building

during normal business hours, Monday through

Friday, 8:00 a.m. to 5:00 p.m.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to s ections 120.569 and 120.57(1), Florida

Statutes.

46. Section 760.11(7) permits a party who rece ives a no

cause determination to request a formal administrative hearing

before the Division . "If the administrative law judge finds that

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

he or she shall issue an appropriate recommended or der to the

Commission prohibiting the practice and recommending affirmative

relief from the effects of the practice, including back - pay."

Id.

47. Ms. Leinonen claims that Regional Counsel terminated

her because of a handicap or a perception of a handicap,

specifically her bruised heel. Section 760.10(1)(a) prohibits

discharging an employee on account of a handicap. Ms. Leinonen

must prove her claim by a preponderance of the evidence. Dep't.

of Banking & Fin. Inv. Prot. v. Osborne Stern & Co., Inc. ,

670 So. 2d 932 (Fla. 1996).

48. Employers may not take adverse action against an

employee for an unlawful reason, such as age or a handicap.

However, the law does not prohibit erroneous, irrational, or

unfair employment actions. Sunbeam Television Corp. v.

M arilyn A. Mitzel , 83 So. 3d 865 (Fla. 3d DCA 2012). Courts do

not serve as super personnel offices. No matter how mistaken,

unreasonable, high - handed, or medieval an employment decision is,

it does not violate the law if the employer does not act for a

f orbidden reason. Chapman v. AI Transp. , 229 F.3d 1012, 1030

(11 th Cir. 2000).

49. An employee may prove a discrimination claim by direct

evidence. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086

(11th Cir. 2004). Direct evidence of discrimination is evidence

that, if believed, proves the existence of a fact without

inference or presumption. Carter v. City of Miami , 870 F.2d 578,

581 - 82 (11th Cir. 1989).

50. Ms. Leinonen maintains Regional Counsel discriminated

against her because of her bruised hee l and that the bruised heel

was a handicap. A person has a handicap if the "person has a

physical or mental impairment which substantially limits one or

more major life activities . . . . " § 760.22(7)(a), Fla. Stat.

The persuasive, competent evidence do es not establish that

Ms. Leinonen's bruised heel was a handicap.

51. The persuasive, competent evidence also does not

establish that Ms. Leinonen's bruised heel or her desire to wear

the "toner" sandals were the reasons for her discharge. Regional

Cou nsel discharged Ms. Leinonen because of the kerfuffle arising

from the garment that she wore on August 15, 2012.

52. Consequently , there is no persuasive, competent direct

evidence proving that Regional Counsel discharged Ms. Leinonen

because of a handi cap, her bruised heel, or a perception that she

had a handicap.

5 3 . An employee may also prove a claim of discrimination by

circumstantial evidence establishing that similarly - situated

employees, who were not in her protected class, were treated more

favo rably than she was. Wilson v. B/E Aerospace, Inc. , supra ,

at 1087. Here, there is no persuasive, competent circumstantial

evidence proving that Regional Counsel discharged Ms. Leinonen

because of a handicap or a perception that she had a handicap.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations deny the Petition for Relief of Christine Leinonen.

DONE AND ENTERED this 25th day of July , 2013 , in

Tallahassee, Le on County, Florida.

S

JOHN D. C. NEWTON, II

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 25th day of July , 2013 .

ENDNOTE

1/ All references to the Florida Statutes are to the 2012 edition

unless otherwise noted.

COPIES FURNISHED:

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32 301

Christine Leinonen

9045 Woodview

Polk City, Florida 33868

Audrey H. Moore, Esquire

Elmer C. Ignacio, Esquire

Office of the Attorney General

The Capitol, P laza Level 01

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.