15-000216 David E. Mcdonald vs. Fresenius Medical Care Status: Closed Recommended Order on Wednesday, May 13, 2015.

Summary: Employee did not prove employer discriminated on account of age or disability. Employee voluntarily quit. Claim that insurance agent mislead him about disability insurance benefits not a claim against employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID E. MCDONALD,

Petitioner,

vs. Case No. 15 - 0216

FRESENIUS MEDICAL CARE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Ne wton, II, of the

Division of Administrative Hearings (Division) heard this case by

telephone conference call on April 16, 201 5 , in Tallahassee,

Florida.

APPEARANCES

For Petitioner: David E. McDonald , pro se

2115 Sunrise Drive

Sebring, Florida 33872

For Respondent: Richard N. Margulies, Esquire

Jackson Lewis, P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE S

A. Did Respondent, Fresenius Medical Care (Fresenius) ,

discriminate against Petitioner, David E . McDonald , in employment

on account of his disability?

B . Did Fresenius discriminate against Mr. McDonald in

employment on account of his age?

PRELIMINARY STATEMENT

Mr. McDonald filed a complaint of age and disability

discrimination with the Florida Comm ission on Human Relations

(FCHR) on August 18, 2014. In his complaint, Mr. McDonald

alleged that the long - term disability benefits insurance provided

by his employer discriminated against him on the basis of his age

and disability by only providing long - t erm disability benefits

for one year, based on his age at the time long - term disability

benefits commenced.

The Florida Commission on Human Relations issued a

Determination of No Cause on December 31, 2014.

Mr. McDonald filed a timely Petition for Relief w ith FCHR on

January 13, 2015. The Petition asserts that Mr. McDonald

experienced a Ðmini - strokeÑ and suffered vision problems in his

right eye from it. This is his allegation of a disability.

The Commission referred the matter to the Division of

Admini strative Hearings to conduct a hearing on the Petition.

The undersigned conducted the hearing, after one continuance, on

April 16, 2015.

Mr. McDonald subpoenaed Ryan Zech of the insurance company

CIGNA. The subpoena was served in the evening of April 1 4, 2015.

Mr. Zech moved to quash the subpoena on account of short notice

and his unavailability on April 16, 2015. At the start of the

hearing, the undersigned granted the motion subject to

re - visiting it after the parties presented evidence to allow a

b etter opportunity to evaluate the need for Mr. ZechÓs testimony

and consider continuing the hearing to obtain his testimony.

Mr. McDonald had tried to subpoena Mr. Zech earlier in this

proceeding using an address provided by counsel for Fresenius.

That ad dress turned out to be incorrect. Counsel provided a

second address, which is the one where Mr. Zech was served. The

evidence presented by Mr. McDonald and his argument made it clear

that Mr. Zech did not have testimony relevant to the issues in

this pro ceeding. His testimony related to Mr. McDonaldÓs

continuing claim that Mr. Zech did not properly inform him about

the limits of disability insurance when he elected to claim the

benefits . That claim cannot be addressed in this proceeding to

determine whe ther Fresenius discriminated against Mr. McDonald.

The subpoena is quashed.

Mr. McDonald testified and agreed to admission of Fresenius

Exhibits 3 and 6 during his testimony. After Mr. McDonald

testified, he repeatedly confirmed that he had no other evid ence

to present except the testimony of Mr. Zech. Kathy Hardwick,

clinical manager for Fresenius , was available to testify , if

called. Mr. McDonald did not express a desire to have her

testify.

Fresenius moved for a directed verdict. The undersigned

a dvised that the rules governing this proceeding do not provide

for a directed verdict. The undersigned also advised that the

testimony of Mr. McDonald made it clear that he did not claim

that Fresenius had discriminated against him and that he had no

evid ence of discrimination. The undersigned terminated the

hearing for resolution on the basis of the undisputed facts

presented during Mr. McDonaldÓs case - in - chief. Both parties were

given an opportunity to submit proposed recommended orders.

The parties di d not order a transcript. Fresenius timely

filed a proposed recommended order. Mr. McDonald filed a letter

to the undersigned denominated ÐSettlement Phase,Ñ stating that

it was time to submit ÐSettlement Proposals to your good self.Ñ

The letter offered to waive costs, objected to the unavailability

of Ryan Zech as a witness, and objected to the purported

unavailability of Kathy Hardwick as a witness. The letter also

requested that FCHR award Mr. McDonald Ð Long Term disability

payments; according to the ; usual and time honored definition of

Long Term.Ñ The letter also asked: ÐFailing LTD payments, I

request a substantial lump sum payment in lieu thereof.Ñ

FINDING S OF FACT

1. Mr. McDonald worked for Fresenius as a social worker in

its Sebring, Florida , facility.

2. Fresenius provided Mr. McDonald family and medical leave

because of back and knee problems. After Mr. McDonald exhausted

the available leave, Fresenius granted him n on - FMLA medical

leave.

3. Because of his continuing health problems, Mr. McDonald

obtained long - term disability benefits in 2013 under a plan

provided by CIGNA and sponsored by Fresenius. Mr. McDonald was

79 years old. Mr. McDonaldÓs testimony established that he

received one year of benefit payments under the plan.

4. On August 29, 2013, Mr. McDonald wrote Fresenius a

letter identified as regarding ÐL.T.D. approval.Ñ The first

three paragraphs stated:

On Saturday 7/27/13, I received a copy of

the letter dated 7/19/13 sent to you by Ryan

Zech, of CIGNA, informing you th at my Ðclaim

for Long Term Disability was approved,

benefits starting on 8/07/13.Ñ

This means, barring the time it takes for me

to reconcile my affairs with our H.R Dept.

that my employment with F.M.C. has come to

an end.

I had hoped that my medical cond ition would

have improved, such that I would have been

able to perform effectively, the required

percentage of my duties to qualify to return

to F/T employment. This has not turned out

to be the case. It is therefore with mixed

sentiments that I accept t he medical

decision/s of CIGNA and my attending

physicians including my ÐEye specialists. "

5. This letter stated Mr. McDonaldÓs voluntary decision to

end his employment with Fresenius. Mr. McDonald did not present

evidence that the decision was coerced or even encouraged by any

representative of Fresenius. Mr. McDonald voluntarily terminated

his employment with Fresenius.

6. Mr. McDonald does not maintain that Fresenius

discriminated against him on account of age or disability. He

testified repeatedly and clearly that he does not claim that

Fresenius discriminated against him in any way on account of his

age or physical condition.

7. Mr. McDonald bases his complaint upon his assertion that

CIGNA representative Mr. Zech did not properly advise him tha t

the long - term disability policy provided only one year of

payments.

8. Mr. McDonald also did not present any evidence that

could support an inference that Fresenius discriminated against

him on account of his age or a disability.

9. Mr. McDonald did n ot argue or present evidence that

CIGNA employee Ryan Zech was an employee or agent of Fresenius .

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to se ctions 120.569 and 120.57(1), Florida

Statutes (2014) . 1/

11. Section 760.11(7) , Florida Statutes, permits a party

who receives 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 order to the Commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back - p ay." Id.

12 . Se ction 760.10 (1)(a) makes it unlawful for an employer

to take an adverse action against an individual because of the

individualÓs age or because of the individualÓs disability.

13 . Mr. McDonald bears the burden of proving the

allegations o f his P etition by a preponderance of the evidence.

See Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 93 4 (Fla. 1996) ("The

general rule is that a party asserting the affirmative of an

issue has the burden o f presenting evidence as to that issue . ");

Fla. Dep't of Transp. v. J.W.C. Co., Inc . , 396 So. 2d 778, 788

(Fla. 1st DCA 1981); and Vero Beach Land Co., LLC v. IMG Citrus,

Inc. , Case No. 08 - 5435 (Fla. DOAH Mar . 4, 2009 ; Fla. DACS

July 20, 2009), aff'd , IMG Citrus, Inc. v. Vero Beach Land Co . ,

LLC , 46 So. 3d 1014 (Fla. 4th DCA 2010).

14. There is no persuasive, credible evidence that

Fresenius discriminated against Mr. McDonald on account of age or

disability. In addition , Mr. McDonald does not claim that

F resenius discriminated against him.

RECOMMENDATION

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 David E. McDonald .

DONE AND ENTERED this 1 3th day of May , 2015 , in Tallahassee,

Leon 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 13th day of May , 2015 .

ENDNOTE

1/ All statutory references are to Florida Statutes (201 4 ),

unless otherwise noted.

COP IES FURNISHED:

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahasse e, Florida 32399

David E. McDonald

2115 Sunrise Drive

Sebring, Florida 33872

Richard N. Margulies, Esquire

Jackson Lewis, P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

B. Tyler White, Esquire

Jackson Lewis , P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

Ruel William Smith , Esquire

Hinshaw and Culbertson, LLP

100 South Ashley Street

Suite 500

Tampa, Florida 33602

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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.