16-000765 Vera Evans vs. Life Care Center Of Altamonte Springs Status: Closed Recommended Order on Wednesday, May 18, 2016.

Summary: Respondent's termination is based on Petitioner's failure to report to work after approved leave expired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERA EVANS,

Petitioner,

vs. Case No. 16 - 0765

LIFE CARE CENTER OF ALTAMONTE

SPRINGS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 15, 2016, an administ rative hearing in this case

was held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vera L. Evans , pro se

402 Cutter Court

Orlando, Florida 32835

For Respondent: Deborah Elizabeth Frimmel, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Suite 1000

390 North Orange Avenue

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue in the case is whether Vera Evans (Petitioner)

was the subject of unlawful discrimination by Life Care Center

of Altamonte Springs (Respondent) on the basis of disability, in

violation of c hapte r 760, Florida Statutes.

PRELIMINARY STATEMENT

By Employment Charge of Discrimination filed with the

Florida Commission on Human Relations (FCHR) on June 22, 2015,

the Petitioner alleged that the Respondent committed unlawful

discrimination against her o n the basis of disability.

By Notice of Determination dated January 13, 2016, the FCHR

determined that there was Ðreasonable cause to believe that an

unlawful employment practice occurred.Ñ

On February 1, 2016, the Petitioner filed a Petition for

Relie f with the FCHR. On February 12, 2016, the FCHR forwarded

the Petition for Relief to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

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

presented the additio nal testimony of one witnes s, and had

Exhibits numbered 20, 21, 24 through 31, and 33 through 38,

admitted into evidence. The Respondent presented the testimony

of three witnesses, and had Exhibits numbered 1 through 19, 22 ,

and 23, admitted into evidence .

A Transcript of the hearing was filed on April 29, 2016.

Both parties filed proposed recommended orders that have been

revie wed in the preparation of this O rder.

FINDING S OF FACT

1. Since 1977, and at all times material to this case, the

Petitione r has been employed as a licensed practical n urse

(LPN).

2. In 2003, the Petitioner began her employment as an LPN

with the Respondent in their skilled nursing unit, where she

remained employed until her termination from employment on

March 26, 2015.

3. According to the formal job description adopted by the

Respondent for its LPNs, persons employed as LPNs by the

Respondent must Ðpractice dependable, regular attendanceÑ

because the essential function of the LPN position is to provide

patient care. T he Respondent must insure that adequate staffing

is available and present to provide such care. The failure of

an LPN to be present for work and to be prepared to carry out

the functions of the position increases the workload of other

staff and can negati vely affect patient care.

4. The Respondent has adopted formal policies related to

various forms of leave, including routine sick leave as well as

extended requests for leave related to medical issues, such as

Family Medical Leave Act (FMLA) leave.

5. Additionally the RespondentÓs formal policies encourage

an employee to request an accommodation when medical impairments

present challenges to the performance of the essential functions

of an employeeÓs position.

6. At the hearing, the Petitioner ackn owledged that she

was aware of the RespondentÓs attendance and leave policies.

7. The Petitioner previously requested and received a work

accommodation in February 2014, when she was unable to work a

full schedule due to a medical issue.

8. In Novemb er 2014, the Petitioner took FMLA leave to

address another medical issue. According to the documentation

submitted by the Petitioner to the Respondent as part of her

FLMA leave request, the period of the PetitionerÓs incapacity

was November 17, 2014 , thro ugh February 28, 2015.

9. The Petitioner requested and was granted 12 weeks of

FMLA leave, which commenced on November 17, 2014. The end of

the PetitionerÓs 12 - week FMLA leave period was February 9, 2015.

10. The RespondentÓs FMLA leave policy speci fically

provides that an employee must return to work on the next

scheduled workday after the expiration of the leave period,

unless the employee provides a doctorÓs note and receives

approval from the Respondent.

11. The RespondentÓs FMLA leave policy also requires an

employee to periodically contact the Respondent during the leave

period and report her status, including her intention to return

to work.

12. During the time that the Petitioner was on approved

FMLA leave, the Petitioner failed to conta ct the Respondent to

indicate when she would be available to return to work.

13. Several times during the PetitionerÓs absence,

Jermaine Morris, the RespondentÓs staffing coordinator,

contacted the Respondent and attempted to determine when she

would be able to return to work. Mr. Morris did so at the

direction of Astrid Lopez, the RespondentÓs Director of Human

Resources.

14. Mr. MorrisÓ attempts were unsuccessful because the

Petitioner was unable to identify an anticipated return date

during their conversations.

15. The PetitionerÓs approved FMLA leave expired on

February 9, 2015, by which time the Petitioner had failed to

communicate to the Respondent her intention to return to work.

16. The RespondentÓs adopted leave policy specifically

requ ires that non - FMLA leave requests must be submitted in

writing to the requesting employeeÓs immediate supervisor, and

must state the purpose of the request and the proposed dates of

absence.

17. Although the Petitioner had not filed a written

request fo r additional leave or submitted the required

documentation prior to the expiration of her FMLA leave, the

Respondent granted non - FMLA leave to the Petitioner when the

Petitioner did not return to work.

18. At the same time, Ms. Lopez also placed the Pet itioner

on an Ðas neededÑ work status (also known as ÐPRNÑ status). The

PRN classification allowed the Petitioner to remain on the

RespondentÓs employment roster and required only that she work a

single shift during a 60 - day period.

19. The RespondentÓ s leave policy provides that non - FMLA

leave is limited to no more than six weeks. Accordingly, the

PetitionerÓs non - FMLA leave period continued through March 26,

2015.

20. Ms. Lopez testified that, despite the PetitionerÓs

failure to submit a written r equest for non - FMLA leave policy,

she decided to grant non - FMLA leave because the Petitioner was a

valued employee of the Respondent.

21. The Petitioner never submitted a written request for

non - FMLA leave, but apparently after Ms. Lopez had already

app roved the non - FMLA leave, the Petitioner had a doctorÓs note

delivered to the Respondent.

22. After the Petitioner filed her complaint of

discrimination with the FCHR, the Respondent, in preparing to

respond to the PetitionerÓs complaint, located a note in the

PetitionerÓs personnel file, purportedly written by a physician

on a prescription pad and signed February 19, 2015. The note

indicated that the Petitioner would require an additional three

months of leave.

23. The PetitionerÓs approved FMLA lea ve had expired prior

to the date of the note.

24. For reasons that are unclear, the note was never

delivered to Ms. Lopez for her review. Ms. Lopez had approved

the non - FMLA leave for the Petitioner prior to the date of the

note.

25. The Petitioner never contacted anyone in the Human

Resources office to follow - up on the note, and apparently

assumed that an additional three months of leave had been

approved.

26. The RespondentÓs failure to respond to the note was

inadvertent. Had the Petitioner ac tually submitted a written

request for non - FMLA leave as required by the RespondentÓs

policy, the Respondent would have been made aware of the note.

27. There is no evidence that the RespondentÓs failure to

respond to the note was purposeful or discrimi natory against the

Petitioner.

28. The RespondentÓs leave policy also sets forth the

procedure and timelines by which the benefits of an employee on

non - FMLA leave are suspended and a COBRA insurance notice

issued. The PetitionerÓs benefits were suspen ded and she

received a timely COBRA insurance notice as provided by the

policy.

29. On March 26, 2015, at the conclusion of the approved

non - FMLA leave period, the Respondent terminated the

PetitionerÓs employment.

30. Prior to the termination, the P etitioner had failed to

work a single shift as required by her PRN classification.

Moreover, the Petitioner had failed to comply with state -

mandatory LPN training requirements that had been imposed prior

to the termination date.

31. The Petitioner offe red no evidence at the hearing that

the RespondentÓs decision to terminate her employment was at all

related to disability. To the contrary, the Respondent approved

the leave requested by the Petitioner, and in fact, granted

additional leave to the Petiti oner, without her request, so that

she remained on the RespondentÓs roster of employees.

32. There is no evidence that the Respondent failed to

provide any disability - related accommodation requested by the

Petitioner.

33. At the hearing, the Petition er testified that she was

not interested in returning to work for the Respondent.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Sta t. (2015). 1/

35. The Respondent is an empl oyer as the term is defined

at s ection 760.02, Florida Statutes.

36. Section 760.10, Florida Statutes, provides as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or t o 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, handic ap, or marital

status.

37. Florida courts interpreting the provisions of s ection

760.10, have held that federal discrimination laws should be

used as guidance when construing provisions of the Florida law.

See Brand v. Fl a . Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Fl a . DepÓt of Cmt y . Aff . v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

38. The Petitioner has the ultimate burden to establish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believe d, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989).

Blatant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of dis crimination. See

Earley v. Champion IntÓl Corp . , 907 F.2d 1077, 1081 (11th Cir.

1990). There is no evidence of direct discrimination on the

Respondent's part in this case.

39. Absent direct evidence of discrimination, the

Petitioner has the burden of establishing a prima facie case of

discrimination. St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993); Texas Dep Ót of Cm ty . Aff. v. Burdine , 450 U.S. 248

(1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).

In order to establish a prima faci e case of discrimination on

the basis of disability, the Petitioner must show that: she has

a disability; she is qualified for the employment position; and

that she was subjected to an adverse employment decision. Smith

v. Avatar Properties, Inc . , 714 So . 2d 1103, 1106 (Fla. 5th DCA

1998); Duckett v. Dunlop Tire Corp . , 120 F.3d 1222, 1224 (11th

Cir. 1997).

40. If the Petitioner establishes the facts necessary to

demonstrate a prima facie case, the employer must then

articulate some legitimate, nondiscrim inatory reason for the

challenged employment decision. The employer is required only

to "produce admissible evidence which would allow the trier of

fact rationally to conclude that the employment decision had not

been motivated by discriminatory animus." Burdine , 450 U.S. at

257. The employer "need not persuade the court that it was

actually motivate d by the proffered reasons. " Burdine , 450 U.S.

at 254. This burden has been characterized as "exceedingly

light." Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138,

1142 (11th Cir. 1983).

41. Assuming the employer articulates a legitimate,

nondiscriminatory reason for the employment decision, the burden

then shifts back to the Petitioner who must establish that the

reason offered by the employer is not the true reason, but is

mere pretext for the decision. The question becomes whether or

not the proffered reasons are "a coverup for a . . .

discriminatory decision." McDonnell Douglas , 411 U.S. at 805.

42. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Petitioner. Burdine , 450 U.S. at 253.

43. The Petitioner has established a prima facie case of

discrimination. The evidence in this case establishes that the

Petition er has a disability and is qualified for the employment

position she held with the Respondent. By her termination, the

Petitioner was subjected to an adverse employment decision.

44. The Petitioner having established her prima facie

case, the burden th en shifts to the Respondent to articulate a

"legitimate, nondiscriminatory reason" for the employment

decision. The Respondent has met the burden. The Respondent

terminated the PetitionerÓs employment solely due to the

PetitionerÓs failure to comply with the RespondentÓs leave

policies and to communicate an anticipated date of return to

employment. In fact, the evidence establishes that the

Respondent valued the Petitioner as an employee, maintained her

on the employment roster beyond the leave time for which she had

applied, and would again re - employ the Petitioner as an LPN, if

the Petitioner had any interest in returning to work.

45. Upon evidence of a legitimate and nondiscriminatory

reason for the RespondentÓs employment decision, the burden then

shifts back to the Petitioner to establish that the reason

offered by the employer is not the true reason, but is mere

pretext for the decision. The Petitioner has failed to meet

this burden. The evidence fails to establish that the

termination of the Pe titionerÓs employment by the Respondent was

at all related to her disability. The Petitioner has offered no

credible evidence that the reasons identified by the Respondent

fo r the termination were pretextu al.

46. To the extent that the Petitioner has a sserted that

the Respondent failed to provide a reasonable accommodation for

her medical issue, the evidence fails to support the assertion.

The evidence establishes that the PetitionerÓs only formal

request for an accommodation occurred in February 2014, and was

granted by the Respondent.

47. The RespondentÓs failure to respond to the

Ðprescription padÑ note does not constitute denial of a request

for accommodation. The PetitionerÓs approved FMLA leave had

expired before the date of the note. The Res pondentÓs Human

Resources office was unaware that the note even existed until

after the Petitioner filed her complaint of discrimination. Had

the Petitioner complied with the RespondentÓs leave policy and

filed a written request seeking non - FMLA leave, th e Respondent

would have been made aware of the Ðprescription padÑ note, and

could have taken action on the request. The Respondent cannot

be held responsible for failing to approve a request, assuming

one was actually submitted, of which they were unaware .

48. Additionally, there is no evidence that the Respondent

would not have welcomed the Petitioner back to employment,

either full - time or on ÐPRNÑ status, had the Respondent been

willing to return to her employment. The RespondentÓs director

of nursi ng described the Petitioner as a good nurse and

testified at the hearing that the Petitioner was eligible to

return to work for the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Flor ida Commission on Human

Relations enter a final order dismissing the Petitioner's

complaint of discrimination.

DONE AND ENTERED this 18th day of May , 2016 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 H earings

this 18th day of May , 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(e Served)

Deborah Elizabeth Frimmel, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Suite 1000

390 North Orange Avenue

Orlando, Florida 32802

(eServed)

Vera L. Evans

402 Cutter Court

Orlando, Florida 32835

(eServed)

Swalitha Richardson

Life Care Legal and Risk Services, LLC

3001 Keith Street Northwest

Cleveland, Tennessee 37312

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

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.