18-002066 Peggy F. Wesley vs. Saint Lucie County Sheriff's Office Status: Closed Recommended Order on Friday, August 30, 2019.

Summary: Petitioner failed to demonstrate Respondent committed an unlawful employment practice by harassment, discrimination or rataliation for her disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY F. WESLEY,

Petitioner,

vs. Case No. 18 - 2066

SAINT LUCIE COUNTY SHERIFF ' S

OFFICE,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admin istrative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing on November 30, 2018, and February 1 1 and 1 2 , 2019, in

Port St. Lucie, Florida, and on May 28, 2019, by video

teleconferencing in Fort Pierce and Tallahassee, Florida.

APPEARANCES

For Petitioner: Peggy F. Wesley , pro se

(Address of Record)

For Respondent: R. W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Fl orida 32303

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent engaged in an

unlawful employment practice against Petitioner on the bas i s of

disability , and whether Respondent retaliated against Petitioner

in violation of the Civil Ri ghts Act.

PRELIMINARY STATEMENT

On or about September 22, 2016, Petitioner Peggy Wesley

( " Wesley " or " Petitioner " ) filed a discrimination complaint with

the Florida Commission on Human Relations ( " FCHR " ) , alleging that

Respondent Saint Lucie County Sheriff ' s Office ( " SLCSO " or

" Respondent " ) discriminated and retaliated against Petitioner

based on her disability.

The FCHR investigated the case and issued a Notice of

Determination: No Reasonable Cause on March 16, 2018, which

notified the parties that " no rea sonable cause exists to believe

that an unlawful practice occurred. " Thereafter, Petitioner

elected to contest the decision and pursue administrative remedies

by filing a Petition for Relief with the FCHR on or about April

12, 2018.

The FCHR transmitted t he Petition for Relief to the Division

of Administrative Hearings ( " DOAH " ) on April 20, 2018, and the

undersigned was assigned to hear the case. The final hearing was

held on November 30, 2018. The case was continued and held on

February 11 and 12, 2019, then completed on May 28, 2019.

At the hearing, Respondent argued a motion that the issues at

hearing be limited. Petitioner agreed that a number of issues she

wanted to contest were at a different point in the process at FCHR

and that a determination ha d not been made. The undersigned

granted the motion and limited the issues at hearing to the ones

that were within DOAH ' s jurisdiction and excluded the issues

regarding race or sex discrimination, termination, and

accommodations to which FCHR had neither completed an

investigation nor made a determination at the time.

Petitioner presented the testimony of four witnesses:

Jo Ann Coleman, Bennan Keeler, Rosa Winston, and herself.

Petitioner ' s Exhibits 1 through 19, 21 through 25, 27 through 29,

and 31 throu gh 34 were received into evidence. Respondent

presented the testimony of seven witnesses: Deron Brown, William

Lawhorn, Adam Goodn er, Wallace Long, Michael Sheele r, Peggy

Wesley, and Kimberly Briglia. Respondent ' s Exhibits 1 through 25,

28, 31 through 3 3, 37, 40 through 48, 51 through 61, 63, 64, 66

through 68, and 70 through 86 were admitted into evidence.

The proceedings were recorded and transcribed. On June 20,

2019, Volumes I, II, III, IV, V , and VI of the Transcript were

filed at DOAH.

Proposed re commended orders were due three weeks after the

T ranscript w as filed. On July 8, 2019, Respondent filed its

Proposed Recommended Order. On July 17, 2019, Petitioner filed

her Proposed Recommended Order. On July 18, 2019, Respondent

filed a Motion to Str ike ( " Motion " ) , requesting that Petitioner ' s

Proposed Recommended Order be stricken from the record for the

untimely filing. On July 18, 2019, Petitioner filed Petitioner ' s

Amended Recommended Order and a Response to Respondent ' s Motion to

Strike , asserti ng that she did comply with the 21 days but did not

count the weekends so her filing was timely. The undersigned

denies the Motion. On July 19, 2019, Respondent filed a Motion to

Strike Petitioner ' s Amended Recommended Order. On July 19, 2019,

Petitione r filed a Response to Respondent ' s Motion to Strike. The

undersigned grants the motion dated July 19, 2019. Therefore,

this tribunal will consider both p roposed r ecommended o rders in

rendering this order.

Unless otherwise noted, all statutory references are to the

Florida Statutes (201 6 ).

FINDING S OF FACT

1. SLCSO is a law enforcement agency in Port St. Lucie,

Florida.

2. On April 15, 1996, Petitioner began employment with SLCSO

as a corrections officer. She worked as a detention deputy

overseeing inma tes and was assigned to booking most of her career.

3. Petitioner was good at her job and typically got above

average on her evaluations related to her work performance. She

also got along with her colleagues.

4. After 2005 , when Wesley had a conflict w ith Lieutenant

Stephanie Lyons ( " Lt. Lyons " ), Petitioner began to believe that

she was working in a hostile work environment and that her

colleagues were out to get her at the direction of Lt. Lyons.

5. Wesley reported and filed complaints throughout her

employment whenever she believed improper behavior occurred. She

reported multiple incidents , including ones where she felt

employees made statements about her that were untrue. As a

result, numerous investigations were conducted by her supervisors

and S LCSO Internal Affairs, to which the majority were concluded

unfounded.

6. Many of the incidents Wesley reported were unsettling to

her and ultimately made her depressed with anxiety, have panic

attacks , a nd elevated her blood pressure.

7. Lt. Lyons, Lt . Daniel O ' Brien ("Lt. O'Brien") ,

S e rge a nt Jeffrey Jackson (" Sgt. Jackson") , S gt. James Mullins

("Sgt. Mullins ") , and Sgt. Johnny Henry ("Sgt. Henry") were some

of Petitioner ' s supervisors while employed at SLCSO.

8. One incident that has been extremely tr oubling to Wesley

is her observation of Sgt. Jackson punching a pregnant inmate in

the stomach. The incident is so upsetting to Wesley that even

though she reported the incident when it occurred, she continues

to be upset by the incident and continues to relive it, which

distresses her.

9. During her employment, Wesley also lost her mom and

brother in the same year, 2011. The losses took an added toll on

her and caused more emotional difficulties.

10. Another major personal event that stressed Wesley w as

that she found out the deputy that she thought she had been in

a 15 - year monogamous relationship with was having an affair with

another deputy on Wesley ' s shift. Those working conditions caused

Wesley even more emotional harm.

11. At some point, Wesle y had an emotional breakdown, could

not get out of bed, and even thought she no longer wanted to live.

Eventually , Wesley ' s illnesses became debilitating , and her high

blood pressure was u nstable.

12. Wesley started missing work because of her illnesses.

She physically was unable to work.

13. On June 20, 2012, after Wesley was absent five times,

she was counseled for abuse of sick leave benefits in violation of

SLCSO Policy 5.1.33. During the counseling, Wesley was told she

" needs to achieve and mainta in an acceptable level of sick time

usage to improve [her] below average status. Deputy Wesley will

receive a below standard on her evaluation for sick time usage. "

14. Wesley first applied for the Family Medical Leave Act

( " FMLA " ) on September 25, 2012, but the process was not completed.

15. On February 25, 2014, Wesley was issued a reprimand for

abuse of sick leave in violation of SLCSO Policy 5.1.33 after she

was absent another five days in 12 months. She was warned that

" any further absences will r esult in continued progressive

discipline. " Wesley did not lose pay when she was reprimanded.

16. On or about August 21, 2014, Wesley submitted an

Intermittent Family Medical Leave Act request for her own " Serious

Health Condition " to the SLCSO Human Res ources Office ( " Human

Resources " ). Wesley ' s application was incomplete.

17. On October 8, 2014, Petitioner submitted the outstanding

medical certification needed for the application submitted on

August 21, 2014. Human Resource Manager Lori Pereira ( " Per eira " )

denied the FMLA request on October 13, 2014, because the medical

certification was submitted untimely, 52 days from the date of

Petitioner ' s last absence.

18. On October 22, 2014, Wesley requested reconsideration of

her FMLA application , and Human Resources denied it on October 27,

2014.

19. On March 20, 2015, Wesley requested FMLA leave again.

In her application, Wesley provided a medical certification filled

out by her cardiologist , Dr. Abdul Shadani ( " Dr. Shadani " ), which

stated the patient wi ll be absent from work for treatment " 2 - 6 per

year , " and the underlying medical condition is systemic arterial

hypertension ( " hypertension " ). " N/A " was the response Dr. Shadani

supplied on the medical certification for probable duration of

patient ' s incap acity. The hours/week section was marked

intermittent. The certification box was also checked " No " after

the question , " Will it be necessary for the employee to work

intermittently or to work less than a full schedule as a result of

the conditions? "

20. On April 1, 2015, Human Resources approved Wesley ' s

request for Intermittent FMLA leave due to medical reasons. The

approval cycle was from August 21, 2014, through August 20, 2015.

Pereira backdated Wesley ' s leave to August 21, 2014, the date

Dr. Shada ni identified as the beginning of Wesley ' s medical

condition. The backdating converted Wesley ' s unexcused absences

to excused absences , and she avoided additional disciplinary

action for unexcused absences .

21. SLCSO policy required that when an employee is on

Intermittent FMLA leave , the employee has to call out as needed

and report which type of leave is being used. The policy for

taking sick leave required that employees call in two hours prior

to the shift and notify your supervisor.

22. Wesley fel t it was unnecessary to have to call in so

frequently.

23. In order to maintain FMLA leave, employees are required

to get renewed medical certifications for the cycles. Human

Resources notified Wesley when she needed to provide a physician

recertificatio n to continue her FMLA leave.

24. When Wesley had to get recertifications, she felt like

it was too frequently and that she was being harassed. Obtaining

recertifications required that Wesley pay co - pays, which she

believed were very expensive since she was not working. Wesley

also felt like she was being punished for using the FMLA leave

benefit.

25. During the August 21, 2014, to August 20, 2015, FMLA

leave cycle, Wesley was absent approximately 444 hours.

26. Pereira discovered Wesley ' s high leave rate, 444 hours,

and noticed that it did not coincide with the projected two to six

absences a year on the medical certification. Pereira conferred

with her supervisor, Lt. Sheel e r, and they decided to verify with

Dr. Shadani whether the 444 hours were ab sences related to

Wesley ' s underlying medical condition to which Wesley had FMLA

leave approval.

27. On August 31, 2015, Pere i ra wrote Dr. Shadani a letter

inquiring about the 444 hours Wesley had been absent.

28. By facsimile dated September 4, 2015, D r. Shadani

responded to Pere i ra ' s request and confirmed that the amount of

absences listed in the medical certification was correct without

further explanation or reference to Wesley ' s hypertension.

29. On September 9, 2015, Human Resources approved

Wes ley ' s Intermittent FMLA request for the August 21, 2015,

through August 20, 2016, cycle for Petitioner ' s own serious health

condition. It was backdated to cover the dates Wesley missed back

to August 21, 2015, even though the recertification was not

compl eted until near the end of the covered FMLA period.

30. While working at SLCSO , Wesley sought mental health

counseling to help deal with her feelings about the workplace.

She wanted to continue working for SLCSO and perform successfully.

31. Human Resou rces decided they needed a better

understanding of Wesley ' s condition with the extensive time she

had been absent contrary to Dr. Shadani ' s absence projection.

Pereira and Lt. Sheeler decided to request a second opinion since

no detailed information was p rovided from Dr. Shadani. Pereira

contacted Dr. Joseph Gage ( " Dr. Gage " ), a cardiologist and

requested that he provide a second opinion.

32. Dr. Gage was asked to review Wesley ' s job description

and evaluate if her 444 hours of absences were reasonable for her

medical condition, provide the reasoning for the number of

absences from work for her medical condition, and determine if

Wesley was capable of performing her job functions. SLCSO also

requested that they be invoiced for the co - pay for Wesley ' s vi sit

to Dr. Gage.

33. On or about September 29, 2015, Pereira spoke with

Wesley and told her she needed to go get a second opinion and that

SLCSO was choosing a cardiologist , Dr. Gage , for the mandatory

second opinion.

34. That same day, Wesley received a call from Stuart

Cardiology that she needed to report for a second opinion. SLCSO

set up the appointment for Wesley. Wesley felt that SLCSO 's

making her report for a second opinion was harassment after her

doctor, Dr. Shadani, had already responded to the Human Resources '

request.

35. Wesley emailed Pereira and told her " I am starting to

feel punished for being on FMLA. " Wesley also emailed Pereira and

asked for the " specific reason(s) for your request for a second

opinion. "

36. On or about October 2 , 2015, Pereira responded to Wesley

by email and stated:

As I mentioned in our phone call a few moments

ago, since Dr. Shadani ' s medical certification

states that you would be absent for treatment

for your medical condition for 2 - 6 times per

year and due t o the fact that you missed 444

hours within the past year, we are requiring

this second opinion with our choice of

cardiologist, Dr. Gage.

37. On October 5, 2015, Dr. Gage evaluated Wesley.

38. On October 9, 2015, Dr. Gage provided Human Resources

his r esults of Wesley ' s evaluation. Dr. Gage was not able to

confirm if the absences were from Wesley ' s hypertension because he

did not have her blood pressure measurements during the absent

dates. However, Dr. Gage was concerned about Wesley ' s blood

pressure level and instructed Wesley not to return to work until

the hypertension was more regulated. Dr. Gage also recommended

Wesley expedite a visit to her cardiologist , Dr. Shadani , before

being released.

39. Wesley was released to return to work by Dr. Sha da ni on

October 6, 20 15. H owever, she did not provide her return to work

release to Human Resources, contrary to SLCSO policy. Instead,

Wesley provided the doctor ' s note to her supervisors.

40. SLCSO policy requires medical clearance be provided to

Hum an Resources if a deputy has missed more than 40 hours of

consecutive work.

41. On October 20, 2015, Kimberly Briglia ( " Briglia " ), the

then h uman r esources m anager that replaced Pereira, called and

told Wesley that a physician medical clearance had to b e provided

to Human Resources for her to return to work.

42. Briglia ' s call was followed up by an email , and Wesley

felt harassed, which she reported.

43. On October 23, 2015, Lt. Sheeler reminded Wesley by memo

that she had been sent an email by Human Resources on October 19,

2015, requesting a fitness for duty evaluation be provided by her

physician. The memo informed Wesley that it was a " direct order "

that she provide a fitness for duty report by November 2, 2015.

44. Human Resources had sent prev ious correspondences to

Wesley by certified mail that were returned unclaimed. SLCSO ' s

practice was to have documents personally served by Civil Unit

deputies when certified mail was unclaimed.

45. Since Wesley had not been claiming her certified mail,

Briglia had the SLCSO ' s C ivil U nit personally serve Wesley at her

residence with Lt. Sheel e r ' s fitness for duty report memo dated

October 23, 2015, to ensure Wesley received it because of the

November 2, 2015, impending deadline.

46. Wesley believed the p ersonal service was harassment , and

having to go to another doctor for a fitness of duty clearance was

also harassment.

47. On October 30, 2015, Wesley provided the fitness for

duty report to Briglia and Lt. Sheel e r.

48. On October 31, 2015 , Wesley was released to full duty

without restrictions.

49. On January 5, 2016, Human Resource Specialist Caitlyn

Tighe requested Wesley provide a medical recertification to

continue her FMLA leave.

50. On January 22, 2016, Wesley provided Human Resources a

FMLA me dical certification signed by Dr. Shadani even though she

felt it was harassing when S L CSO requested such documentation.

51. On March 7, 2016, Wesley requested a retroactive pay

increase because she believed that a deputy had received a similar

pay increa se and that she deserved the same.

52. Wesley continued to believe that her supervisors were

harassing her. On or about March 24 , 2016, Wesley reported to

Captain William Lawhorn ("Capt. Lawhorn") that she had been

mistreated by Lt. Lyons yet again , as she had been doing since

2005. Wesley complained of the following problems with Lt. Lyons:

a. Lt. Lyons assigned Sgt. Jackson over Wesley because he

was " someone who feeds off of [ Lt. Lyons] . "

b. Lt. Lyons tried to discipline Wesley while she was

applyi ng for FMLA leave.

c. Lt. Lyons directed Sgt. Tom Siegart ( " Sgt. Siegart " ) to

call Wesley to let her know that she would need a doctor ' s note to

return to work if she was out another day because she was on her

third consecutive sick day.

d. The " needs i mprovement " on Wesley ' s performance

evaluation was only the rating because Lt. Lyons directed Sgt.

Siegart to lower it.

e. Lt. Lyons asked the deputies over radio communications

had they seen Wesley who was late for roll call. Wesley believed

Lt. Lyons w as trying to embarrass her by calling her over the

radio and not looking for her when she came in late.

53. On April 19, 2016, Director of Finance Toby Long denied

Wesley ' s request for a pay increase and explained that in 2007 ,

Wesley had been provided an increase that corrected the

discrepancy in her pay grade. He also informed Wesley that she

had been paid properly since the 2007 increase.

54. On April 22, 2016, Capt. Lawhorn had a meeting with

Wesley and Lt. Lyons to discuss the March 24, 2016, compl aint.

Lt. Lyons agreed not to address Wesley publicly on the radio and

talk with her privately going forward. Wesley declined the

transfer Capt. Lawhorn offered , and Wesley and Lt. Lyons a greed

they could work together.

55. Capt. Lawhorn found no miscon duct for any of the five

complaints Wesley made on March 24, 2016. He found that the

assignment of Sgt. Jackson was an arrangement based on need. The

corrective action was moot because it was retracted when it no

longer applied since Wesley ' s FMLA leave was backdated. He also

determined that Lt. Lyons frequently used the radio to communicate

all issues to deputies and was not singling Wesley out. Next,

Capt. Lawhorn decided it was common practice to have a deputy call

to check on another deputy about le ave and to determine how to

plan the work schedule. He also concluded Lt. Lyons used proper

discretion when lowe r ing Wesley ' s rating to " needs improvement , "

because Wesley had a zero sick leave balance and was tardy to

work. Lastly, Wesley had been late at roll call ; so , it was

appropriate to look for her.

56. Soon after the meeting, Wesley complained to Capt.

Lawhorn that Lt. Lyons had discussed the meeting with Lt. Lyons '

friend, Deputy Denetta Johnson ( " Dep. Johnson " ), and Dep. Johnson

glared at her. Capt. Lawhorn followed up the complaint by

investigating. He met with Dep. Johnson and found out that

Lt. Lyons had not discussed the meeting with her.

57. On May 27, 2016, Wesley provided SLCSO a C ertification

of Health Care Provider for Employee ' s Serious Health Condition

signed by Dr. Shadani to continue her FMLA leave.

58. In May 2016, Wesley ' s Intermittent FMLA was approved

after she provided the FMLA medical recertification to Human

Resources.

59. In May 2016, Capt. Lawhorn tried to assist Wes ley and

found himself compiling a history of Wesley ' s career , including

ten years of complaints against Lt. Lyons and other supervisors,

reviewing her discipline and attendance history, medical

condition, FMLA leave, and injuries. He evaluated Wesley ' s

co mplaint that Lt. Lyons and the other supervisors were causing

her undue stress and that she was being treated differently.

60. Capt. Lawhorn discovered that Wesley had ten corrective

actions for her whole tenure with the sheriff ' s office, which were

rel ated to neglect on - duty charges or sick leave abuse. Her

record confirmed approved Intermittent FMLA leave for a personal,

serious medical condition.

61. Capt. Lawhorn ' s review found that Wesley ' s work history

pattern of declining attendance , including periods without a full

paycheck , started in 2013 and included: 2013 , missed two full

paychecks; 2014, missed one full paycheck ; 2015 , missed ten full

paychecks; and 2016 , missed four out of nine checks (YTD).

62. Capt. Lawhorn addressed the possibilit y of Wesley

qualifying for workers ' compensation benefits because of her

complaints about workplace stress , anxiety , and interactions with

Lt. Lyons. Capt. Lawhorn addressed the issues in a memo to Maj or

Tighe dated May 16, 2016. However, it was determin ed that Wesley

did not qualify for worker s ' compensation benefits.

63. By July 2016, Wesley ' s FMLA leave was running out.

Human Resources Clerk JoLeah Rake prepared and sent a letter to

Wesley to notify her that the FMLA leave exhausted July 26, 2016.

The letter was returned unclaimed.

64. Briglia determined that notifying Wesley that her leave

was exhausted was an urgent matter and that she requested personal

service to Wesley ' s residence by the SLCSO Civil Unit to ensure

Wesley received the notice.

65. On or about August 3, 2016, Wesley provided a return to

work note to Briglia from Dr. Denise Punger ( " Dr. Punger " ) ,

stating that Wesley could return to work on August 5, 2016.

Wesley had just missed five days of work.

66. Briglia could not determin e the nature of Wesley ' s

illness because Dr. Punger ' s note did not provide an explanation

for Wesley ' s five absent days of work. A lso, Dr. Punger was not

Dr. Sha dani, the doctor who had previously provided Wesley ' s

medical certifications for FMLA leave.

6 7. Briglia was concerned for Wesley ' s safety and the safety

of her co - workers. On August 4, 2016, Briglia made an independent

Human Resources decision and requested by letter that Wesley

provide a more detailed explanation from Dr. Punger for her

absence s , to ensure Wesley was fit for duty to return to work.

68. Briglia had the Civil Unit personally serve the letter

dated August 4, 2016 , to Wesley at her residence.

69. On August 4 2016, Wesley called Briglia to address her

displeasure with the request for details from her physician and

the personal service at her residence a second day in a row.

Wesley described the SLCSO actions as embarrassing, harassment,

retaliation, discrimination, and a violation of her rights.

Wesley informed Briglia that they were making her situation worse.

Briglia told Wesley she would return her call.

70. On August 5, 2016, together Briglia and Lt. Sheel e r

called Wesley back to explain that it was within SLCSO policy to

verify details of medical conditions. They further told Wesley

that since the release was signed by a physician other than

Dr. Shadani who had previously provided the explanation for her

FMLA leave medical certifications and absences, the medical

reasons for the absences needed to be clarified and provide d. Lt.

Sheel e r and Briglia also told Wesley that workplace safety was the

priority that created the need for the request in order to both

protect employees and to make sure SLCSO is not going against the

orders of Wesley ' s doctor. It was also explained t o Wesley that

civil service was necessary because she did not claim her

certified mail, she needed to be notified, and she could not

return to work without a fitness for duty clearance. Wesley did

not believe Briglia and Lt. Sheel e r. Each request for med ical

documents caused Wesley additional stress.

71. Wesley admitted at hearing that she did not claim her

certified mail.

72. Afterwards, Wesley provided a medical excuse slip from

Dr. Punger, clarifying that Wesley ' s absences were due to

migraines and h igh blood pressure. Human Resources allowed Wesley

to return to work after receiving Dr. Punger ' s excuse slip.

73. On August 22, 2016, Wesley filed a complaint against

Briglia.

74. On August 22, 2016, Wesley received a corrective action

for abuse of si ck leave and an informal counseling for the five

sick absences in four months that were not FMLA leave related.

Wesley violated agency policy by taking time off without accrued

sick leave.

75. On or about September 8, 2016, Wesley provided SLCSO a

Certi fication of Health Care Provider for Employee ' s Serious

Health Condition signed by Dr. Sha dani.

76. On September 19, 2016, Wesley filed a complaint

regarding the August 22, 2016, corrective action. After reviewing

the corrective action, Capt. Lawhorn fou nd the corrective action

appropriate and the informal discipline fair and supported by

policy. Wesley did not lose pay for the discipline.

77. On September 22, 2016, Wesley filed a discrimination

case with the FCHR , alleging SLCSO discriminated against h er by

subjecting her to harassment and discrimination , and retaliation ,

for taking FMLA leave due to her disability , hypertension.

78. On March 16, 2018, FCHR issued a Determination: No

Reasonable Cause. Wesley filed a Petition for Relief on or about

Apr il 12, 201 8 , to contest the determination.

79. Wesley claims in her petition that the requirement that

she ac quire a second opinion from Dr. Gage, the personal service

to her residence by the SLCSO Civil Unit deputies to deliver

correspondence, and the re quirement th at her physician,

Dr. Punger, clarify her medical condition to return to work were

harassment, discrimination, and retaliation for her utilizing her

FMLA leave benefit.

CONCLUSIONS OF LAW

80. The Division of Administrative Hearings has jurisdi ction

over the subject matter and the parties hereto pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2018) .

81. Petitioner alleges harassment and discrimination on the

basis of her disability and retaliation for engaging in the

protected con duct of taking FMLA leave.

82. The Florida Civil Rights Act of 1992 ( " Florida Act " ) is

codified in sections 760.01 through 760.11, Florida Statutes. The

Florida Act prohibits discrimination in the workplace and

prohibits employer retaliation for engagin g in protected activity.

83. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed an unlawful employment

practice. See St. Louis v. Fla. Int ' l Univ. , 60 So. 3d 455

(Fla. 3d DCA 2011); Fla. Dep ' t of Transp. v. J.W.C. Co. , 396 So.

2d 778 (Fla. 1st DCA 1981).

84. A " discriminatory practice, " as defined in the Florida

Act, " means any practice made unlawful by the Florida Civil Rights

Act of 1992. " § 760.02(4), Fla. Stat.

85. Section 760.01 of the Florida Act e xplains that the

general purpose of the Act is to:

[S]ecure for all individuals within the state

freedom from discrimination because of race,

color, religion, sex, pregnancy, national

origin, age, handicap, or marital status and

thereby to protect their in terest in personal

dignity, to make available to the state their

full productive capacities, to secure the

state against domestic strife and unrest, to

preserve the public safety, health, and

general welfare, and to promote the

interests, rights, and privi leges of

individuals within the state .

86. Section 760.10 provides, in relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an individual, or otherwise to

discriminate against an y individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

87. The Americans with Disabilities Act of 1990 ( " ADA " ),

42 U.S.C. § 12102(1) provides, in pertinent part, the following

definition of the term " disability " :

(1) Disability. The term " disability "

means, with respect to an individual Ï

(A) a physical or mental impairment that

substantially limits one o r more major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment . . . .

Discrimination

88. Disability discrimination claims under the Florida Act

are analyzed under the same analytical framework for analogous

claims arising under the ADA. 42 U.S.C. § 12101, et seq. , as

amended. See, e.g. , Greenberg v. BellSouth Telecomms., Inc. ,

498 F.3d 1258, 1263 - 64 (11th Cir. 2007). Accordingly, federal

case law interpreting the ADA is a pplicable to cases arising

under the Florida Act.

89. ADA claims are evaluated using the McDonnell Douglas

burden - shifting analysis. Holly v. Clairson Indus., L.L.C. ,

492 F.3d 1247, 1255 (11th Cir. 2007). In McDonnell Douglas Corp.

v. Green , 411 U.S. 7 92, 802 - 803 (1973), the U.S. Supreme Court

established a framework for analyzing employment discrimination

claims where, as here, the complainant relies upon circumstantial

evidence of discriminatory intent.

90. Under the McDonnell Douglas framework, a p laintiff must

first establish, by a preponderance of the evidence, a prima

facie case of discrimination. If successful, this raises a

presumption of discrimination against the defendant. If a prima

facie showing is made, the burden of proof then shifts t o the

employer to offer a legitimate, non - discriminatory reason for the

adverse employment action. If the employer meets its burden, the

presumption of discrimination disappears , and the employee must

prove that the employer ' s legitimate reasons for dismi ssal were a

pretext for discrimination. The ultimate burden of proving

discrimination rests at all times with the plaintiff.

91. To establish a prima facie claim of disability

discrimination under the ADA and consequently under the Florida

Act , Wesley mu st prove that: (1) she has a disability; (2) she

is a qualified individual; and (3) the employer unlawfully

discriminated against her because of her disability. See

Morisky v. Broward Cnty. , 80 F.3d 445, 447 (11th Cir. 1996).

92. The first two elements for the forgoing test are

satisfied, as SLCSO does not dispute that Wesley ' s hypertension

was a disability for Wesley. Additionally, Wesley also meets the

" qualified individual " prong , because she has been working

successfully as a deputy as evidenced by her approximately

20 years of service with SLCSO , and she consistently received

average or above average on performance evaluations regarding her

job performance, which means she possesses the basic skills to be

qualified, the second element of a prima fa cie case. See Gregory

v. Daly , 243 F.3d 687, 696 (2d Cir. 2001)(holding that a plaintiff

" need only make the minimal showing that [she] possesses the basic

skills necessary for the performance of [the] job " to satisfy the

requirement that the plaintiff wa s qualified).

93. As to the third element of a prima facie case, the

record is void of evidence to demonstrate that SLCSO

discriminated against Wesley because of her hypertension or for

her utilizing FMLA leave. No evidence supports Wesley ' s

conclusory a llegations that she was either being harassed by Lt.

Lyons and other supervisors or that any harassment was because of

her hypertension or for taking FMLA leave. Instead, the

competent substantial evidence shows that Human Resources made

independent decis ions regarding Wesley ' s FMLA leave.

Specifically, Pereira, Briglia, and Lt. Sheeler were the

individuals involved in the incidents to which Wesley alleges are

discriminatory and retaliatory: the requirement of a second

opinion from Dr. Gage ; the personal service to her residence by

the Civil Unit deputies to deliver correspondence ; and the

requirement that her physician, Dr. Punger, clarify her medical

condition to return to work. Hence, Wesley failed to establish a

prima facie discrimination case , becau se no evidence was

presented to show element three. Therefore, the record shows

that SLCSO did not discriminate against Wesley because of her

disability .

94. Even if Wesley had met the burden for disability

discrimination , then the burden would have shif ted to SLCSO to

articulate legitimate, non - discriminatory reasons for their

actions. An employer has the burden of production, not

persuasion, to demonstrate to the finder - of - fact that the decision

was non - discriminatory. Id. This burden of production i s

" exceedingly light. " Holifield v. Reno , 115 F.3d 1555, 1564

(11th Cir. 1997).

95. Respondent met its burden by introducing evidence that

Wesley ' s absences of 444 hours far exceeded Dr. Shadani ' s two to

six absences a year. To that end, Pereira was ju stified in asking

Dr. Gage for a second opinion when Dr. Shadani did not provide an

explanation. The record also demonstrates that Wesley

consistently failed to claim her certified mail. Therefore, to

inform Petitioner of important information such as ex haustion of

FMLA leave, the only option SLCSO had to ensure she received the

communications was to deliver them to her home by C ivil Unit

deputies . Respondent also demonstrated a legitimate safety

concern for Wesley, her co - workers, and the inmates, by re quiring

a fitness for duty detailed medical explanation from Dr. Punger

before Wesley could return to work. Respondent made the

aforementioned employment decisions for legitimate reasons that

were both nondiscriminatory and non - retaliatory reasons.

There upon, Wesley failed to show that the reasons SLCSO offered

for each of their actions were pretextual for unlawful

discrimination and not worthy of belief.

Retaliation Claim

96. Respondent contends that this tribunal does not have

jurisdiction to decide " Wesley ' s claims of FMLA retaliation. " The

undersigned is not persuaded by Respondent ' s position. The matter

at issue is not what Respondent maintains, a question regarding

Petitioner ' s FMLA rights being violated. That subject matter

would be a Wage and Hour Board issue not jurisdiction of DOAH .

However, t he issue Wesley is asserting is that she was retaliated

against because she was utilizing the FMLA benefit, which the

undersigned has jurisdiction to decide.

97. As to Petitioner ' s retaliation claim, to establish a

prima facie case under section 760.10(7), a plaintiff must

demonstrate: (1) that she engaged in statutorily protected

activity; (2) that she suffered adverse employment action ; and

(3) that the adverse employment action was causally relate d to

the protected activity. Blizzard v. Appliance Direct, Inc. ,

16 So. 3d 922, 926 (Fla. 5th DCA 2009).

98. Once the plaintiff makes a prima facie showing, the

burden shifts , and the defendant must articulate a legitimate,

nondiscriminatory reason for the adverse employment action. Wells

v. Colo . DOT , 325 F.3d 1205, 1212 (10th Cir. 2003). The

plaintiff must then respond by demonstrating that Defendant ' s

asserted reasons for the adverse action are pretextual. Id.

99. The first prong for a prima faci e case of retaliation

is met in this matter. Wesley ' s protected activity is that she

was engaged in taking FMLA leave.

100. An employment action is considered adverse only if it

results in some tangible negative affect on plaintiff ' s

employment. Lucas v. Grainger, Inc. , 257 F.3d 1249, 1261

(11th Cir. 2001). In this matter, the undersigned is prohibited

from considering any acts that took place after September 22,

2016, when the complaint was filed with FCHR.

101. At the time Wesley filed her compla int, Wesley was

still employed with SLCSO. The record is void of adverse job

action in this case. Instead, the credible evidence demonstrates

that the SLCSO backdated Wesley ' s FMLA leave cycles on more than

one occasion to assist her so she didn ' t have u nexcused absences

and would not be disciplined. Also, the record shows SLCSO would

contact Wesley to get recertifications so that she could continue

on FMLA leave. Additionally, Capt. Lawhorn even tried to get her

worker ' s compensation to assist her with her stress she was

having on the job. Further, Wesley's claims, the independent

medical evaluation by Dr. Gage, the personal service of

correspondence from Human Resources, and the request for a more

detailed explanation from Dr. Punger regarding Wesley ' s absences

from work all failed to have any negative effect on Wesley ' s

employment. And, even when Wesley received corrective actions ,

no pay was los t . Hence, the second prong for retaliation fails.

No adverse employment action was established by credib le evidence

in this matter.

102. Additionally, Wesley ' s retaliation allegation also

fails because she did not demonstrate the third prong Ï - a causal

connection between the adverse employment action and the

protected activity. Since no adverse employment a ction exists in

this matter, a causal connection cannot be made. As a

consequence, Petitioner ' s failure to establish a prima facie case

of retaliation ends any further inquiry regarding this issue.

Therefore, Wesley ' s claim of retaliation i s without meri t and

must fail.

103. Accordingly, Wesley did not meet her burden to

demonstrate SLCSO committed an unlawful employment practice by

harassment, discrimination, or retaliation against Petitioner for

her disability. Therefore, Wesley ' s Petition should be

d ismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Commission on Human Relations dismissing Petitioner ' s

Petition for Relief in its entirety.

DONE AND ENTE RED this 30th day of August , 2019 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 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 30th day of August , 2019 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4 075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

R. W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Peggy F. Wesley

(Address of Record - eServed)

Cheyanne M. Costilla, Gene ral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.