16-005762 Constance K. Gatewood vs. The Unlimited Path, Inc. Status: Closed Recommended Order on Thursday, June 22, 2017.

Summary: Petitioner failed to demonstrate that any requests for a reasonable accommodation were ignored by Respondent. Also, Petitioner failed to demonstrate a link between her demotion and her requests for an accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANCE K. GATEWOOD,

Petitioner,

vs. Case No. 16 - 5762

THE UNLIMITED PATH, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hear ing was conducted in this

case on April 17 and May 4, 2017, in Panama City, Florida,

before Garnett W. Chisenhall, a duly - designated Administrative

Law Judge of the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Constance K. G atewood, pro se

Post Office Box 262

Campbellton, Florida 32426

For Respondent: William G. Warner, Esquire

Alicia D. Carothers, Esquire

Warner Law Firm, P.A.

Post Office Box 1820

Panama City, Florida 32402

STATEMENT OF THE ISSUE

The issue is whether The Unlimited Path , Inc. (Ð The

Unlimited Path Ñ) committed an unlawful employment practice

against Constance K. Gatewood by denying her a reasonable

accommod ation and/or by demoting her from her position as

P rogram D irector at Jackson Corre ctional Institut ion .

PRELIMINARY STATEMENT

Ms. Gatewood filed a Charge of Discrimination with the

Florida Commission on Human Relations (Ðthe CommissionÑ) on

January 25, 2 016, alleging that The Unlimited Path did not

provide a reasonable accommodation and retaliated against her by

demoting her from a P rogram D irector to a C linical S upervisor.

The Commission conducted an investigation and issued a

Determination on August 2 5, 2016, concluding that there was no

reasonable cause to believe that an unlawful employment practice

had occurred:

[Ms. Gatewood] filed a charge of

discrimination against [T he Unlimited Path]

alleging that she was denied reasonable

accommodations, harass ed, denied wages,

retaliated against and demoted based on her

disability and age. The facts and evidence

as set forth in the Investigative Memorandum

do not support [Ms. Gatewood]Ós allegation.

The evidence in this matter does not reveal

that [T he Unlimi ted Path] considered

[Ms. Gatewood] to be disabled. The evidence

in this matter reveals that [ The Unlimited

Path] accommodated [Ms. Gatewood]Ós requests

regarding her allergies. The evidence in

this matter reveals that [Ms. Gatewood]

failed to provid e any competent substantial

evidence to prove otherwise. The evidence

i n this matter reveals that [Ms. Gatewood]

is still employed by [T he Unlimited Path]

and has failed to provide any competent

substantial evidence to prove that [T he

Unlimited Path] deni ed her wages.

Ms. Gatewood responded by filing a Petition for Relief with

the Commission on September 27, 2016.

On September 27, 201 6 , the Commission referred this matter

to DOAH for a formal administrative hearing.

On October 24, 2016, the undersi gned issued a Notice

scheduling the final hearing to occur on December 9, 2016.

After granting multiple r equests for continuance s , the

final hearing commenced on April 17, 2017. Because the final

hearing was not concluded on April 17, 2017 , the undersig ned

reconvened the final hearing on May 4, 2017, and it concluded

that day.

In addition to her own testimony, Ms. Gatewood presented

the testimony of Michael Van Bebber and Sheila Randolph.

Ms. GatewoodÓs Exhibits 1, 2, 5A, 5B, 7, 9 through 11, 15,

18, 28, and 29 were accepted into evidence.

The Unlimited Path presented the testimony of Michael

Dozier, Amie Bishop, Calvin Bell, Margaret Agerton, May - Li

Clark, and Bertrand Randolph.

During the final hearing, The Unlimited Path asked the

undersigned to accept Exhibits 1 through 73 into evidence.

While the undersigned reserved ruling on the admissibility of

Exhibits 61, 62, and 64, the undersigned accepted all of The

Unlimited Path Ós other exhibits into evidence. As for

Exhibits 61, 62, and 64, the u nd ersigned does not accept

them into evidence because they are unduly repetitious.

See § 120.569( 2)(g), Fla . Stat ., 1/ (providing that Ð[i]rrelevant,

immaterial, or unduly repetitious evidence shall be excluded,

but all other evidence of a type commonly reli ed upon by

reasonably prudent persons in the conduct of their affairs shall

be admissible, whether or not such evidence would be admissible

in a trial in the courts of Florida.Ñ).

Transcripts from the final hearing were filed with DOAH on

May 25, 2017.

Ms. Gatewood and The Unlimited Path filed timely Proposed

Recommended Orders that were considered in the preparation of

this Recommended Order.

FINDING S OF FACT

The Parties

1. The Unlimited Path contracts with the Florida

Department of Corrections (ÐDOCÑ ) to provide residential

substance abuse counseling and re - entry services to inmates on

prison grounds.

2. The Unlimited Path has been operating since 1994 when

it had 30 to 50 employees. To day, The Unlimited Path has

280 employees and operates at 20 to 24 institutions within

Florida.

3. DOC is The Unlimited Path Ós primary source of revenue .

If The Unlimited Path is not satisfying its contractual

obligations, then DOC can terminate the contract. Therefore , it

is imperative that The Unlimited Path sa tisfy its contractual

obligations.

4. In order to ensure that The Unlimited Path is

satisfying those obligations, DOC and the Department of Children

and Families (ÐDCFÑ) conduct periodic reviews of The Unlimited

Path Ós substance abuse programs.

5. Th e contract between DOC and The Unlimited Path is

comprehensive. For example, one provision requires that The

Unlimited Path comply with the Americans with Disabilities Act

(Ðthe ADAÑ) . Another provision empowers DOC to prohibit The

Unlimited Path from em ploying a particular person at a DOC

facility.

6. Bertrand Randolph is the President of The Unlimited

Path and performs all of the functions typically associated with

a chief executive officer of a corporation.

7. Mr. RandolphÓs wife, Sheila Randolph, is the Executive

Director of The Unlimited Path , and her duties include

overseeing the operations and policies of the entire

corporation. Ms. Randolph also writes The Unlimited Path Ós

bids.

8. Ms. Gatewood has worked in prison - based substance abuse

t reatment programs since 2005. She is a masterÓs level

certified addiction professional or a Ð CAPÑ. As a CAP,

Ms. Gatewood is qualified to operate a substance abuse program.

9. The Unlimited Path hired Ms. Gatewood on September 20,

2011, to work as a c linical supervisor at the Walton

Correctional Institution ( ÐWalton CIÑ) .

10. One piece of do cumentation associated with

Ms. GatewoodÓs hiring asked her to disclose whether she suffer s

from various medical conditions such as epilepsy, diabetes, or

heart disease. With regard to a category on th at document

entitled Ðother,Ñ Ms. Gatewood noted that she experiences

Ð[a]llergies to certain foods, chemicals, perfumes, other odors

plus dyes.Ñ However, she res ponded negatively to a question

asking if she had ev er Ðreceived a disability rating or had one

assigned . . . by an insurance company or state/federal agency.Ñ

11. On an ÐEmergency Contact Informat ion Sheet,Ñ

Ms. Gatewood disclosed that she is allergic to several foods and

substances such as aspirin, su lfides, chemicals, perfumes,

colognes, seafood, pork, strawberries, nuts, chocolate, red dye,

and yellow dye.

12. Ms. Gatewood also noted on the aforementioned form

that she has asthma and is sensitive to extreme hot or cold

conditions.

13. However, th e disclosures described above did not

present a complete picture regarding the severity of

Ms. GatewoodÓs allergies. Specifically, those disclosures did

not indicate that Ms. GatewoodÓs allergies could be life -

threatening.

14. A letter dated October 7, 2003, from Dr. Mark H.

Kalenian of Alabama Asthma & Al l ergy, P.C. presented a

comprehensive description of Ms. Gatewood Ós allergies and

described how they could be life - threatening :

The above referenced patient is a

52 year old black fem ale initi ally

seen on 9/13/2001 and last seen on

4/1/2003. Her diagnoses include allergic

rhinitis, asthma, dermographic Urticaria,

Urticaria/angioedema, and multiple drug

allergies. She breaks out in hives and can

get facial swelling when ingesting MSG,

scuppe r di nes, vanilla ice cream, red

#40 and yellow #5 dyes, shellfish, and

Advil - related anti - inflammatory drugs. Her

main problems that may affect her work are

smoke, chemicals and/or perfumes which

trigger sinus allergy type symptoms, lip

swelling, dizzines s, shortness of breath,

and anaphylaxis (a potentially life -

threatening reaction). These potential

exposures to smoke, cologne, perfume,

scents or chemicals, extreme hot/cold air,

polluted air at work w he ther in the air or

on co - workers could potentially trigger a

severe allergic, asthmatic or anaphylactic

reaction, which could send her to the

emergency room, close off her airway and

drop her blood pressure and be potentially

life threatening.

She should work in a clean air environment,

away from co - worke rs who smoke or wear

scented lotions or perfumes, away from

polluted air and away from extremes of hot

or cold. Avoidance is the best treatment

for her, although she needs to continue on

all asthma and allergy medications. Please

consider implementing a policy of no

perfume/cologne or strong scents worn on

trainees , and people should smoke outside.

15. As discussed in more detail below, Ms. Gatewood did

not share the above - referenced letter with The Unlimited Path

until April of 2015. 2 /

Ms. Gatewoo dÓs Tenure at The Unlimited Path Prior to July 2015

16. During her tenu re with The Unlimited Path ,

Ms. Gatewood h as worked as the Program Director of substance

abuse rehabilitation programs at three different DOC facilities:

L owell CI , Jackson CI , and th e Northwest Florida Regional Annex .

17. At The Unlimited Path , a program director is

responsible for all aspects of a treatment program at a DOC

facility.

18. Ms. GatewoodÓs allergies became well - known to those

who worked around her . A ny sort of str ong scent presented a

problem. For example, Ms. GatewoodÓs co - workers could not heat

fish in a micro wave because of the resulting aroma, and they

could not use hand soap.

19. T here is no dispute that The Unlimited Path Ós

management (prior to November o f 2014) properly addressed any

complaints made by Ms. Gatewood. According to Ms. Randolph,

Ð any time there was a concern, we would address it with the

employee or the site by holding a staff [meeting] , requesting

that people refrain from heavily scented p roducts. I mean,

we Î we even allowed for there to be some cleaning schedule

changes at sites to accommodate her allergies. So we tried very

hard to respect the fact that she was sensitive.Ñ

20. The Unlimited Path also allowed Ms. Gatewood to set

t he standard for soap in the bathrooms.

21. Nevertheless, Ms . GatewoodÓs allergies were an issue

throughout her tenure at The Unlimited Path .

22. As explained below, Ms. Gatewood cites three instances

in which The Unlimited Path allegedly ignored requ ests from her

for a reasonable accommodation within the meaning of the ADA .

In other words, Ms. Gatewood alleges that The Unlimited Path

began ignoring her requests for a reasonable accommodation in

November of 2014.

23. The Unlimited Path began operatin g a substance abuse

rehabilitation program at Jac kson CI in January of 2014, with

Ms. Gatewood as the Program Director.

24. In approximately November of 2014, counselors under

Ms. GatewoodÓs supervision were wearing scented products, and

the aromas from those scented products were being transferred to

documents that Ms. Gatewood had to review in her capacity as

Program Director . As a result, Ms. Gatewood experienced

allergic reactions and began leaving documents in filing

cabinets overnight in order for the scent to dissipate.

25. O n November 5, 2014, Ms. Gatewood addressed the

following e - mail to Sheila Randolph :

This message is to seek advice regarding

employees that continue to wear scented

products in the workplace which is

creating comp lications because the

paperwork is extremely saturated with

perfume/cologne/aftershave/lotion scents so

strong that I am experiencing allergic

reactions signing the paperwork.

I have addressed this issue in staff

meeting[s], however, it seems not to matter

with cer tain staff.

Ms. RussellÓs entire caseload charts

were so strong ly scented today, I asked

Ms. Dandridge to place them in the file

cabinet because my system could not tolerate

the smell nor could I continue signing off

on the individual sessions. I became very

ill and had to go outside to get fresh air

in order to breathe.

Also, I know you want me to provide

leadership training to Mr. Bell, however,

the scented aftershave and hand product he

wears makes it extremely difficult for me to

interact in close pr oximity with him, and

sign his paperwork. Today, I mentioned to

him that I was experiencing an allergic

reaction and my eyes were stinging so badly

I could not sign his chart. Later I

overhead him say Ðif someone is that

sensitive this is not the environ ment to

work in.Ñ

At this point, I am unable to perform the

duties of my job due to these strong scents

that I am affected by smelling and touch.

There is a DOC policy that addresses strong

scents in the workplace. I donÓt want the

closed charts to arri ve in Tallahassee

smelling like a perfume factory, and lastly

these scents are very attractive to the

inmates.

26. On April 9, 2015, Ms. Gatewood addressed the following

e - mail to her immediate supervisor, Amie Bishop:

At your earliest convenience I ne ed to speak

with you regarding two issues that involve

Counselor Karlicia Rogers.

1. Scented products in the workplace that

has been address[ed] in the past. She is

now wearing heavily scented hand products

when completing documentation.

2. Documentat ion deficiencies regarding

three charts that were not countersigned

when the client was enrolled into the

program, and correcting my documentation in

the chart.

27. Later that day, Ms. Gatewood transmitted another

e - mail to Ms. Bishop and copied Shei la Randolph. Within the

e - mail, Ms. Gatewood expressed an issue regarding Mr. Bell.

However, she also referred to the ADA:

Yesterday, after Staff Meeting, I considered

Mr. BellÓs be havior inappropriate. In

front of staff members, he made a comment

reg arding Ms. Chavers who was not present in

the room at the time. He said, ÐIf you are

that sensitive you donÓt need to be working

here.Ñ This was regarding an incident

earlie r during staff meeting when Ms. Rogers

reported inf ormation she overheard from

Ms . ChaversÓ group and (Ms. Rogers) said she

wanted clarification. Ms. Chavers thought

Ms. Rogers was targeting her and told her so

during the meeting. Ms. Rogers explained

that she was not targeting her, and after

numerous attempts to convince her she was

not being targeted, Ms. Chavers excused

herself and left the meeting.

It was [about] time to go, I went to look

for Ms. Chavers, and did not feel the need

to keep Mr. Bell overtime to address his

behavior. However, this morning, I advised

Mr. Bell that I overheard the remark and

wanted to address it with him. I mentioned

that in the past I overheard him make the

same remark about me when he thought I was

out of the room (re: scented products in

the workplace, and allergic effect it causes

me). I furthe r mentioned that I was

surprise[d] he would commit the very same

act after having been talked to by the

Corporate Office . He remembered the

incident stating Ms. Clark had advised him

not to wear scented products in the

workplace , however, she agreed with him

regarding his opinion that if I was that

sensitive, I did not need to be working

here. He further stated that she did not

know that I was still upset by the incident,

and he began to apologize profusely.

I emphasi zed to him that I was not

still upset about that incident. However,

my concern is the comment is totally

inappropriate in the workplace because of

the following reasons: (1) the forum in

which he made the comment. The person he

was talking about was not present, (2) the

possibility of infl uencing staff members

present to feel the same way he does which

creates tension in the workplace, (3) in my

situation, it is essential to recognize the

Americans with Disabilities Act , (4) re:

Ms. Chavers it was inappropriate for him to

say where she can work, and (5) he continues

to make this comment in total disregard of

the effect.

Hopefully, Mr. Bell will not continue this

behavior, however, I do want to keep you in

the loop.

(emphasis added).

28. Ms. Randolph responded to Ms. Gatewood via e - mail on

April 9, 2015, by stating that,

This is the first time IÓve heard you make

mention of A DA for your condition. We

have never gotten any medical documentation

from you regarding special accommodations

for your sensitivities and yet, we have

conti nued to be supportive of your allergies

and the needs you have regarding scents and

strong odors. If you are stating that you

have a condition covered under the ADA, we

need documentation in support of that so

that we can explore our responsibilities in

t hat regard further.

29. Via an e - mail dated April 16, 2015, Ms. Gatewood

responded to Ms. RandolphÓs request by attaching a note dated

April 15, 2015, from Dr. Kale nian recommending that Ms. Gatewood

have a fragrance free environment du e to asthma and chemical

sensitivity. Ms. Gatewood also attached Dr. KalenianÓs

Octob er 7, 2003, letter that was quoted above in paragraph

number 14 .

30. In addition, Ms. G atewood reiterated in her April 16,

2015, e - mail that Ðthe current source of issues for me is wh en

counselors use heavily scented hand products when handling

inmates Ó charts that I am required to countersign as the

Qualified Supervisor.Ñ

31. To the extent that Ms. GatewoodÓs November 5, 2014,

e - mail amounts to a request for a reasonable accommod ation

within the meaning of the ADA , her subsequent e - mail on April 9,

2015, indicates that The Unlimited Path addressed her concerns

regarding M r . BellÓs use of scented aftershave.

32. Moreover, The Unlimited Path conducted a staff meeting

at some poin t between November 5, 2014, and December 25, 2014,

at Jackson CI and trained the staff members on workplace

grooming etiquette and being sensitive to co - workersÓ allergies .

33. To the extent that Ms. GatewoodÓs April 9, 2015,

e - mails amount to reque sts for a reasonable accommodation within

the meaning of the ADA, The Unlimited Path mandated in May of

2015, that female staff members at Jackson CI no longer wear

scented lotions. In addition, The Unlimited Path prohibited

liquid soap in the bathroom at Jackson CI.

34. To the extent that any of the e - mails discussed above

amount to requests for a reasonable accommodation within the

meaning of the ADA, the greater weight of the evidence

demonstrates that The Unlimited Path took appropriate actions to

s atisfy those requests.

35. Aside from the issues regarding her aller gies,

Ms. GatewoodÓs tenure at The Unlimited Path has been marked by

difficult ies with DOC.

36. For example, Ms. Gatewood did not have a good working

relationship with the assistant warden of programs at Lowell CI

when she was the Program Director there .

37. As a result, Ms. Randolph encountered resistance when

she sought permission from DOC to transfer Ms. Gatewood from

Lowell CI to Jackson CI.

38. Margaret Agerton, t he Assistant Bureau Chief in

DOCÓs Bureau of Programs , felt as if The Unlimited Path was

transferring a problem from one place to another. Nevertheless,

Ms. Agerton approved the transfer with the caveat that this

would be the last one.

Events Leading to Ms. Gatewoo dÓs Demotion

39. On June 2, 2015, Ms. Gatewood requested leave from

Thursday, July 16, 2015, through Friday, July 24, 2015, and her

request was approved the next day.

40. B ecause DCF is responsible for licensing and

regulating substance abuse and mental health facilities

throughout Flo rida, Michael Van Bebb er of DCF arrived on

July 23 , 2015, at Jackson CI in order to conduct an audit . T he

Unlimited Path had received advance notice approximately two

weeks beforehand .

41. At the time of the audi t, Jackson CI was treating

68 inmates.

42. Even though Mr. Van Bebber considers The Unlimited

Path to be one of the highest performing substance abuse

providers that he reviews, he was disturbed by the state of the

treatment program at Jackson CI .

43. Three counse lors employed by The Unlimited Path at

Jackson CI had resigned within the previous week, and there were

not enough counselors for the 68 people receiving treatment.

44. In addition, Mr. Van Bebber considered the treatment

facility to be too small for th e number of people in the

program. In his opinion, the facility was overcrowded, and the

overcrowding caused the inmates to be extremely agitated.

Mr. Van Bebber felt unsafe and locked himself in an on - site

office.

45. With regard to the overall func tioning of the program

at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path

was not performing at the level h e would expect from an

established provider of residential treatment programs.

46. In fact, The Unlimited Path almost got a warning that

could have resulted in the loss of its license at Jackson CI .

B ecause Mr. Van Bebber considered DOC to be equally responsible

for the problems at Jackson CI , the warning was not issued . 3 /

47. At the time of the audit, Michael Dozier worked for

Th e Unlimited Path , and he substituted as the P rogram D irector

at Jackson CI during Ms. GatewoodÓs vacation.

48. Mr. Dozier has over 25 years of experience with prison

residential treatment communities. He is recognized as an

authority on residential trea tment programs/communities.

49. Upon arriving at Jackson CI, Mr. Dozier spoke to The

Unlimited Path Ós staff members and estimated that 50 percent of

those to whom he spoke were looking for another job.

50. As Mr. Dozier examined the physical area hous ing the

substance abuse treatment program, he noticed that the facility

was unclea n and that many of the inmates were disheveled in

appearance. This indicated to Mr. Dozier that there was a lack

of structure and accountability.

51. On July 23, 2015, Mr . Dozier wrote a memo to the

ÐExecutive LeadershipÑ of The Unlimited Path recommending the

Ðimmediate removalÑ of Ms. Gatewood as the Program Director of

Jackson CI:

First, let me start by saying I have spent

the past week evaluating the strengths and

weak nesses of our Jackson CI RTC with hopes

of identifying the direct cause of high

staff turnover, staff resignations without

notice, high staff dissatisfaction, and high

levels of inmate frustration. During my

review, I was very discouraged by what I

found. The program space was very dirty

with trash cans overflowing, negative

graffiti on the walls, chairs disorganized

in group space, and counseling offices

discombobulated. I also noticed heavy

layers of dust and spider webs in the

windows [along with] han ging poster paper

with inappropriate writing on them.

As I focused my attention on the program, I

quickly realized that there was no structure

in the program. There appeared to be no

accountability when it came to community

expectations. [R]esidents w ere walking

around with their shirts out, failing to

wear their ID, using abusive language and

consistently giv[ing] the staff negative

feedback when being directed. After

speaking to several structure members, I

received the following feedback: the last

structure meeting was held over three months

ago, staff is not assigned to departments,

there are no department meetings, no visual

display of assigned structure positions and

no systems for behavior management/behavior

shaping. It was very disappointing to

witness the disarray in Morning Meeting and

Wrap - up. [T]hose meetings had no structure

or desired outcome and residents expressed

no trust of the environment.

It was clear that staff had been receiving

little to no direction from the program

director when it came to managing the

community and creating program expectations.

During my interviews with staff, it was

apparent that the director spent most of the

time being punitive towards staff focusing

on issues such as the way they wore their

hair, what they [were] wearing, what lotion

they were us ing and what deodorant they

had on. It was also reported that the

director would always make negative comments

about the corporate office, negative

comments about other employees, and a clear

dissatisfaction w ith the contract manager.

[S]taff also stated that if they complained

about anything the director would defiantly

retaliate against them using their

request[s] for time off, [the] dress code,

clinical files, or [by assigning that staff

member to] the diff icult clients that week.

I was clearly concerned about the staff

morale, lack of leadership and the poor

client satisfaction I heard over the past

four days. As you know, the program

director has to be seen as the ultimate role

model in the Therapeutic C ommunity.

Based on m y findings, I am recommending the

immediate removal of the Program Director.

52. On July 27, 2015, The Unlimited Path r emov ed

Ms. Gatewood from her position as Program Director at Jackson CI

and reassign ed her to a counselor positio n at the Northwest

Florida Regional Annex .

53. A memorandum signed by May - Li Clark, Ms. GatewoodÓs

immediate supervisor at the time, explained why Ms. Gatewood was

demoted:

During the dates of 7/21/15 Î 7/23/15, while

Mr. Dozier, State Director, was onsit e at

Jackson CIÓs RTC, several issues were noted

that clearly reflect lack of leadership

within the program. The following issues

were noted: No structure within the

program; last structure meeting was held

over three (3) months ago, no st aff assigned

to the departments within the community;

department meetings with the community were

not being held, no visual display of

assigned structure position; and no system

for behavior management/behavior shaping

within the program. Morning Meetings

and Wrap - Up Me etings we re unorganized

with no desired outcome. There was no

accountability in regards to community

expectations as the inmate/clients were not

in Class A uniform, did not have IDÓs, were

allowed to use profane language and did not

follow staff directive s. It was apparent

that the inmate/clients were experiencing a

high level of frustration. Additionally,

the inmate/clients expressed no trust within

the treatment environment.

54. The memorandum also held Ms. Gatewood responsible for

a high amount of turnover among counselors at Jackson CI:

Between the dates of 7/17/15 Î 7/22/15, two

staff members quit without notice and one

staff member was escorted off the compound

by Jackson CI Administration. In addition

to the immediate staff turnover concerns, it

has been noted that the program at Jackson

CI has experienced a high level of staff

turnover since The Unlimited Path took over

operations of the program. Issues that

were noted which have been the main

contributing factors to staff turnover

include: 1) program space (staff work

space) was unsanitary with trashcans

overflowing, layers of dust and spider webs

in the windows, disorganization of program

and office space, negative graffiti on

the walls and hanging poster paper with

inappropriate writing on them; (2) staff

receiving little to no direction from the

program director regarding program

structure, creating and managing program

expectations and minimal training regarding

clinical file documentation; and 3) fear of

retaliation when speaking of conc erns or

seeking assistance.

55. Ms. Gatewood signed the memorandum but noted that she

did not agree with its contents and would challenge the

decision. 4 /

56. Since the end of July 2015, Ms. Gatewood has been

working as a C ounselor at the Northwest Florida Regional Annex .

5 7 . As a C ounselor, Ms. Gatewood does not have to handle

the paperwork of other counselors.

58. The greater weight of the evidence does not

demonstrate that Ms. GatewoodÓs demotion was retaliation for her

repeated complaints a bout co - workers being insensitive about her

allergies. In other words, The Unlimited Path had valid reasons

for demoting Ms. Gatewood.

CONCLUSIONS OF LAW

59. DOAH has jurisdiction o ver the parties and the

subject matter of this proceeding pursuant to sections 120.569

and 120.57, Florida Statutes, and Florida Administrative Code

Rule 60Y - 4.016(1).

60. The State of Florida, under the legislative scheme

contained in sections 760.01 - 760.11, Florida Statutes, known as

the Florida Civil Rights Act of 199 2 (Ðthe FCRAÑ), incorporates

and adopts the legal principles and precedents established in

the federal anti - discrimination laws specifically set forth

under Title VII of the Civil Righ ts Act of 1964, as amended.

42 U.S.C. § 2000e, et. seq .

61. Section 76 0.10 prohibits discrimination Ðagainst any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individualÓs race,

color, religion, sex, national origin, age, handicap, or marital

status.Ñ £ 760.10(1)(a) , Fla. Stat.

62. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

the FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d

17, 21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 S o. 2d

504, 509 (Fla. 1 st DCA 1994).

63. Ms. Gatewood alleges that The Unlimited Path failed to

intervene after November of 2014, when staff members would wear

scented products and transfer those scents to documents she had

to review. In other words, Ms . Gatewood alleges that The

Unlimited Path denied her a reasonable accommodation after

November of 2014, and retaliated against her by demoting her

from the program director position at Jackson CI. 5/

64. Ms. Gatewood has the burden of proving by a

prepo nderance of the evidence that The Unlimited Path committed

an unlawful employment practice . See EEOC v. JoeÓs Stone Crabs,

Inc. , 296 F.3d 1265 , 1273 (11 th Cir. 2002)(noting that a

claimant bears the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

employees); § 120.57(1)(j) , Fla. Stat.

65. Each of Ms. GatewoodÓs claims will be addressed

separately below.

The Greater Weight of the Evidence Indicates that The Unlimited

Path Did Not Deny Ms. Gatewo od a Reasonable Accommodation

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

provision establishing an employer's duty to provide reasonable

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

the principles of the ADA, such a duty is r easonably implied.

Brand v. Fla. Power Corp. , 633 So. 2d 504 , 511 n.12 (Fla. 1 st

DCA 1994) .

67. 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

re asonable accommodation, can perform the

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

§ 12111(8). If a qualified individual with

a disability can perform the essential

functions of the job with reasonable

accommodation, then the employer is required

to pro vide 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 modifie d work schedule, or reassignment.

42 U.S.C.A. § 12111(9)(B).

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

1066 (Fla. 4th DCA 1999 ).

68. While discrimination based on disparate treatment

requires a showing of some discriminatory intent, di sability

discrimination based upon an employer's failure to provide an

employee with a reasonable accommodation does not. In that

regard:

Unlike other types of discrimination claims,

however, a Ðfailure to accommodateÑ claim

under the ADA does not requir e a showing of

discriminatory intent . . . ÐRather, the

failure to provide reasonable accommodations

is a per se violation of the ADA, regardless

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

claim that an employer failed to . . .

provide reasonable accommodat ions to

qualified employees, does not involve a

determination of whether that employer

acted, or failed to act, with discriminatory

intent.Ñ . . . Such claims require only a

showing that the employer failed Ðto fulfill

its affirmative duty to Òmake reason able

accommodation to the known physical or

mental limitations of an otherwise

qualified applicant or employee with a

disabilityÓ without demonstrating that Òthe

accommodation would impose an undue hardship

on the operation of the business.ÓÑ

Accordingly, . . . the McDonnell Douglas

burden - shifting framework, Ðwhile

appropriate for determining the existence of

disability discrimination in disparate

treatment cases, is not necessary or useful

in determining whether a defendant has

discriminated by failing t o provide a

reasonable accommodation.Ñ (citations

omitted).

Wright v. Hosp. Auth. of Houston Cnty. , 2009 U.S. Dist. LEXIS

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

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

Aug. 24, 2 007); Frazier - White v. Gee , No. 8:13 - cv - 1854 - T - 36TBM,

2015 U.S. Dist. LEXIS 48923 *18 (M.D. Fla. 2015); Jones v. Ga.

DepÓt of Corr. , No. 1:07 - CV - 1228 - RLV, 2008 U.S. Dist. LEXIS

22142 *14 - 15 (N.D. Ga. Mar. 18, 2008).

69. Accepting that she was a Ðqualified individualÑ within

the me aning of the ADA, she has failed to demonstrate by a

preponderance of the evidence that The Unlimited Path denied her

a reasonable accommodation.

7 0 . Instead, the greater weight of the evidence indicates

that The Unlimited Path responded to Ms. GatewoodÓs complaints

and took measures to address them during her entire tenure with

The Unlimited Path .

The Greater Weight of the Evidence Does Not Demonstrate that The

Unlimited Path Retaliated Against Ms. Gatewood

7 1 . Ms. Gatewood also alleges that The Unlimited Path

retaliated against her by demoting her from her position as

P rogram D irector at Jackson CI.

7 2 . S ection 760.10(7) provides, in pertinent part that

[i]t is an unlawful employment practice for

an employer, an employme nt agency, a joint

labor - management committee, or a labor

organization 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, te stified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

7 3 . An employee can establish that she suffered

retaliation under the FCRA by proving that : (1) she engaged in

an activity protected by the FCRA; (2) she suffered an adverse

employment action; and that (3) there was a causal connection

between the protected activity and the adverse employment

action. Pennington v. City of Huntsville , 261 F.3d 1262,

1266 (11th Cir. 2001); Russell v. KSL Hotel Corp. , 887 So. 2d

372, 379 (Fla. 3d DCA 2004).

7 4 . With regard to the first criterion, a protected

activity includes requesting a reasonable accommodation provided

that the employee was actually handicapped or had a good faith,

objectively reasonable beli ef that she was handicapped.

See Tabatchnik v. Cont Ó l Airlines , 262 Fed. Appx. 674, 677 (5th

Cir. 2008)( stating that " [b] ecause Tabatchnik has not shown that

he had a good faith belief that he was disabled or perceived as

disabled, his request for an acco mmodation cannot be considered

protected by the ADA."); Williams v. Philadelphia Hous . Auth .

Police Dep Ó t , 380 F.3d 751, 759 (3d Cir. 2004)( stating that

" [u] nlike a claim for discrimination under the ADA, an ADA

retaliation claim based upon an employee hav ing requested an

accommodation does not require that a plaintiff show that he or

she is 'disabled' within the meaning of the ADA . . . Thus, as

opposed to showing disability, a plaintiff need only show that

she had a reasonable, good faith belief that she was entitled to

request the reasonable accommodation she requested.")(citation

omitted) .

7 5 . In the instant case, even if Ms. Gatewood d id not have

a disability within the meaning of the ADA, she ha d an

objectively reasonable belief that she was disabled within the

meaning of the ADA.

7 6 . As for the second cr iterion of a retaliation

claim, there can be no reasonable dispute that Ms. GatewoodÓs

involuntary demotion from the P rogram D irector at Jackson CI to

a C linical S upervisor at the Northwest Florida R egional Annex

was a n adverse employment action.

77 . Therefore, the only r emaining question regarding

Ms. GatewoodÓs retaliation claim is whether there was a causal

connection between her request s for a reasonable accommodation

and her demotion.

78 . In h er new position as a C ounselor at the Northwest

Florida Regional Annex, Ms. GatewoodÓ s allergies are a lesser

issue because she does not have to frequently handle the

paperwork of others. Nevertheless, t he greater weight of the

evidence does not demonstra te that The Unlimited Path demoted

Ms. Gatewood so that it would no longer have to take measures to

cope with her allergies. The Unlimited Path had valid grounds

for demoting her.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing Constance K. GatewoodÓs

Petition for Relief from an u nlawful e mployment p ractice.

DONE AND ENTERED this 22n d day of June , 2017 , in

Tallahassee, L eon County, Florida.

S

G. W. CHISENHALL

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 22 nd day of June, 2017 .

ENDNOTE S

1/ Unless indicated otherwise, all statutory references will be

to the 2016 version of the Florida Statutes.

2/ When asked on cross - examination why she did not disclose the

full nature of her allergies upon being hired by The Unlimited

Path , Ms. Gatewood testified that she disclosed the information

during her initial interview with The Unlimited Path . According

to Ms. Gatewood, the interviewer responded by stating there

would be no problem because strong scents are not allowed in a

prison.

3 / During the final hearing, Ms. Gatewood fairly questioned why

she should be held responsible for events that occurred when she

was on lea ve. In response, May - Li Clark , The Unlimited Path Ós

Regional Director, testified that :

Well, Ms. Gatewood, when an Î when an

employee is serving as a program director,

the program should be in a shape in such a

manner that, when the program director is

not there, the program is still running as

it should according to the model.

So even though you had not b een there

for seven days, the program should still

have been operat ing if it was up to par.

If it was operating as a therapeutic

community according to the model and it was

functioning as it should be, then you being

away for seven days would not have affected

the program. It would not have [resulted

in] Mr. Dozier having those findings.

4 / Prior to being demoted, Ms. Gatewood received a perfor mance

evaluation in 2015 indicating that The Unlimited Path was

pleased with her performance. When questioned why Ms. Gatewood

was demoted in light of the posit ive performance evaluation,

Ms. Randolph testified as follows:

Because it was Î it doesnÓt ref lect the

other sites that she had been at. At Walton

CI, A.W. Whitehurst at the time, whoÓs now

warden, got so upset with her that he

almost, in her words came across the table

at her, relating to just her interaction

with that institution and with the

co rrectional staff.

At Lowell Annex, she had such an adversarial

relationship with the administration at

Lowell Annex, that we had to have the

clinical supervisor go to all the department

head meetings, because Ms. Gatewood had

gotten into a little bit of a disagreement

with the colonel at the site, the Department

of CorrectionsÓ representative.

And in order to make nice and make

peace with that local institution, we let

Mr. Roberts be the front of the program and

just had her be the program director within

the site, you know, where she didnÓt really

interface with the Department of

CorrectionsÓ local administration.

And about that time, not soon thereafter,

she asked to be moved back up to this area.

And we had the program director position at

Jackson, so we moved her up there.

So it felt like we were Î we have constantly

been trying to find the right spot and fit

for Ms. Gatewood without it being a Î I

donÓt know, utilizing her credentials and

her clinical files skills set. And we just

were kind of like at our witsÓ end, at that

point, that Jackson CI was in the shape that

it was in and the personnel problems were so

pronounced there.

5/ M s. Gatewood also alleged that she was the victim of age

discrimination because one of her subordinates under the a ge

of 40 at Jackson CI referred to her as Ðold.Ñ As the grounds

for her age discrimination claim, Ms. Gatewood a lleges that:

(a) she should have been told of the corrective measures

implemented by The Unlimited Path ; and that (b) The Unlimited

Path held her responsible for the subordinateÓs resignation.

However, Ms. GatewoodÓs allegations do not amount to a prima

facie case of age discrimination . See City of Hollywood v.

Hogan , 986 So. 2d 634, 641 (Fla. 4 th DCA 2008)( stating that in

order to make a prim a facie showing of age discrimination, a

plaintiff must prove that: (a) she is at least 40 years of age;

(b) she is otherwise qualified for the position sought; (c) she

was rejected for the position; and (d) the position was fil l ed

by a worker substantial ly younger than the plaintiff) . McRae v.

Kash NÓ Karry d/b/a Sweetbay Supermarket , Case No. 09 - 6222 (Fla.

DOAH Oct. 29, 2010; FCHR Jan . 14, 2011) (defining the elements of

a prima facie age discrimination case as (1) was the petitioner

qualified for the po sition; (2) did the petitioner suffer an

adverse employment action; and ( 3 ) did the respondent treat

similarly - situated employees outside the protected class more

favorably) .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Huma n Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Constance K. Gatewood

Post Office Box 262

Campbellton, Florida 32426

(eServed)

William G. Warner, Esquire

Warner Law Firm, P.A.

Post Office Box 1820

Panama City, Florida 32402

(eServed)

Alicia D. Carothers, Esquire

The Warner Law Firm

Post Office Box 1820

Panama City, Florida 32402

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eSer ved)

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 Fina l Order in this case.