19-003195 Francesca Thomas vs. Sma Behavioral Behavioral Status: Closed Recommended Order on Wednesday, December 18, 2019.

Summary: Petitioner did not prove that Respondent committed an unlawful employment practice based on disability discrimination. Accommodations offered to her, although perhaps not optimal, were reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCESCA THOMAS ,

Petitioner,

vs. Case No. 19 - 3195

SMA BEHAVIORAL HEALTH, INC. ,

Respondent .

/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

W. David Watkins, Administrative Law Judge of the Division of

Administrative Hearings (DOAH), pursuant to sections 120.569 and

120.57(1), Florida Statutes (2019), on October 9, 2019.

APPEARANCES

For Petitioner: Kevin G. Thomas, Esquire

Kevin Thomas Law Firm, P . A .

300 Bayview Drive, Suite A4

Sunny Isles Beach, Florida 33160

For Respondent: Brett P urcell Owens, Esquire

Fisher & Phillips, LLP

101 East Kennedy Boulevard , Suite 2350

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Petitioner, Francesca Thomas, was subject to an

unlawful employment practice by Respondent, SMA Behavioral

Health, Inc., based on her alleged handicap/disability in

violation of the Florida Civil Rights Act, section 760.01 ,

Florida Statutes .

PRELIMINARY STATEMENT

Petitioner, Francesca Thomas (Petitioner), filed a Charge

of Discrimination against Respondent on or about September 28,

2018, alleging handicap/disability, race, age, and sex

discrimination in violation of t he Florida Civil Rights Act,

sections 760.01, et seq . (FCRA).

The Florida Commission on Human Relations (Commission)

issued a “no reasonable cause” determination on May 7, 2019.

Petitioner filed a Petition for Relief on June 11, 2019.

Petitioner only soug ht review of her handicap/disability claim.

Petitioner is alleging she was discriminated against because she

was not provided reasonable accommodations and for receiving a

disciplinary report due to conditions caused by her disability.

Pursuant to notice, the final hearing in this matter was

held on October 9, 2019. The parties presented the testimony of

Petitioner, Treeca Lewis, Deborah Loyd, and Jennifer Stephenson.

Petitioner’s Exhibit 10 was received in evidence. Respondent’s

Exhibits 1, 2, 5, 8, 10 , and 13 were received in evidence.

Petitioner claims that Respondent failed to provide her a

reasonable accommodation for her mental disability, described by

Petitioner as “anxiety/panic attacks . ” Respondent asserts that

Petitioner was not a qualified in dividual with a

handicap/disability with or without accommodation because she

does not have an impairment that substantially limits a major

life activity.

A one - volume Transcript of the final hearing was filed on

October 21, 2019. At the close of the hear ing, the parties were

advised of a 10 - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. Following

Respondent’s request, the parties agreed to a deadline for

filing post - hearing submissions more than 10 days after the

filing of the hearing Transcript. On November 18, 2019,

Petitioner filed a Motion for Extension of Time for Petitioner

to file her proposed recommended order. The motion represented

that counsel for Petitioner had “contacted the attorney for

R espondent for his position and the attorney is waiting on a

response from his client.” Respondent filed its Proposed

Recommended Order on November 20, 2019. Thereafter, on

November 26, 2019, prior to the deadline for a response in

opposition to Petitione r’s Motion for Extension of Time,

Petitioner filed her Proposed Recommended Order. There being no

objection of record to the filing of Petitioner’s Proposed

Recommended Order, both parties’ post - hearing submittals have

been duly considered in the preparat ion of this Recommended

Order. All statutory references are to the 2019 version of the

Florida Statutes , since the relevant provisions of chapter 760

have been unchanged since 2015, prior to any allegedly

discriminatory acts.

FINDING S OF FACT

Based upon the credibility of the witnesses and evidence

presented at the final hearing , and on the entire record of this

proceeding, the following Findings of Fact are made:

1 . Petitioner is a Family Intensive Therapeutic Team

(FITT) counselor for Respondent. She provides substance abuse

and mental health counseling with the goal of reuniting her

clients with their children. Petitioner has worked for

Respondent for 15 years, and was described by one of her

supervisors as “professional . ” During the course of her

e mployment with Respondent, Petitioner has received multiple

promotions, presumably indicative of the quality of her work for

Respondent.

2 . FITT counselors are responsible for providing

counseling services to 10 to 12 clients that are referred by

child w elfare. The program is designed for FITT counselors to

see their clients at the clients’ homes or out in the community.

3 . Respondent provides a laptop and cell phone for each

FITT counselor for use in the field. FITT counselors rely upon

electronic me dical records and use their laptops to communicate

with clients and manage their caseloads. Occasionally there are

some hard copy documents used by the FITT counselors, but

Respondent has policies and procedures in place to manage the

security of these do cuments. Hard copy documents are required

to be secured in locked bags or in the trunks of the FITT

counselor’s cars.

4 . All of the progress notes that FITT counselors prepare

are paperless. Additionally, the discharge notes,

communications, and child welfare records are paperless. Over

the course of a case, the majority of the documents are

paperless.

5 . FITT counselors only have to come into the office if

they have meetings with their supervisor or have documents in

hard copy format. If they so cho ose, they can work on their

case notes and communicate with clients from the office. They

can also connect to the internet, work on their case notes, and

communicate with clients remotely.

6 . In all, 70 to 80 percent of Petitioner’s work is

performed out side of the office. Some of the FITT counselors

perform the majority of their work at home. This is

accomplished via their company issued laptop and WiFi delivered

through their phone. Respondent has a Virtual Private Network

(VPN) system that allows FI TT counselors to work remotely and

securely from their homes. Petitioner’s position was designed

so she would not be tethered to a desk. As noted, she has the

ability to connect to WiFi through a WiFi hotspot that is

available on the phones issued by Res pondent, which essentially

allows her to work from anywhere.

7 . Prior to February 2018 , the FITT counselor’s offices

were located in the Cantley Center, in Daytona Beach, Florida.

The work stations provided to the counselors at this location

were very sm all offices (approximately 8 ft. by 8 ft.) with

doors, as opposed to work cubicles. Some FITT counselors shared

offices with other counselors, while some counselors, including

Petitioner, had their own offices. The workspace was described

by one counselo r as a “cave” since it was located in the lower

level of the building, there were no windows, and the small

offices had low ceilings.

8 . For reasons not reflected in this record, sometime in

early 2018 the decision was made to relocate Respondent’s

opera tions to a new location. On or around February 27, 2018,

Petitioner went to Respondent’s new offices to examine where she

would be working. Petitioner’s department was one of the first

to move into the new building.

9 . At the new location, the FITT cou nselors were to be

assigned to cubicles, rather than offices. Although

Petitioner’s previous office was very small, when Petitioner saw

her new work space she shouted loudly “I can’t do this. I can’t

do this , ” and began suffering a panic attack. When Pe titioner

then requested that she be assigned to a different cubicle,

based upon her seniority, her supervisor informed her that all

the work spaces were already assigned by the Program Management

and Facilities departments.

10 . In November 2017 , Petitione r informed Respondent that

she occasionally suffers from panic attacks. However, it was

not until March 1, 2018 , that Petitioner told her supervisors

that she was claustrophobic. Her supervisors told her that they

were unaware of her being claustrophobic and did not recall her

ever saying that she was claustrophobic.

11 . Petitioner received a Performance Notice due to her

exchange with her supervisors on February 27, 2018. As a

consequence of this Performance Notice, Petitioner was placed on

90 days pro bation.

12 . On March 14, 2018, Petitioner asked to schedule a

meeting with her supervisor to discuss her Performance Notice.

She did not ask about a reason able accommodation in her

March 14th email to her supervisor, BranShonda Levine.

13 . On March 19, 2018, Petitioner again exchanged emails

with Ms. Levine regarding a meeting to discuss her Performance

Notice. On that same date, Petitioner also exchanged emails

with Jennifer Stephenson, s enior d irector of Outpatient

Services, that were related to her Performance Notice.

Ms. Stephenson understood Petitioner’s email to only be focused

on appealing the issuance of the Performance Notice that

Petitioner received.

14 . In the e - mail exchange, Petitioner indicated she

wanted to meet with Ms. Stephenson and Deborah Loyd,

Respondent’s v ice p resident of Human Resources, to discuss her

P erformance N otice.

15 . Ms. Stephenson scheduled a meeting with Ms. Loyd in

response to Petitioner’s March 19 th email regarding her

Performance Notice. Petitioner submitted a re buttal to her

Performance Notice on March 20, 2018, stating that she did not

feel that the issuance of the Performance Notice was warranted.

16 . At a meeting on March 20 or 21, 2018, Petitioner

expressed for the first time that she may need a reasonable

a ccommodation. At this meeting , Ms. Stephenson learned for the

first time that Petitioner claimed she has claustrophobia.

Likewise, Ms. Stephenson did not know Petitioner was seeking a

reasonable accommodation until this meeting.

17 . In a follow - up emai l dated March 21, 2018,

Ms. Stephenson recommended Petitioner work with Respondent’s

Human Resources Department regarding her claustrophobia and

panic attacks. Ms. Stephenson acknowledged that if they were

documented conditions , Respondent would make a re asonable

accommodation for Petitioner.

18 . As of March 30, 2018, Petitioner remained focused on

the two disciplinary actions 1/ she had received in early 2018,

and her request to have those reviewed and removed from her

personnel file. As of this date , P etitioner was working in her

assigned cubicle, and made no mention of having any issue

working in the cubicle.

19 . Respondent has adopted Policy HR102, titled

“Accommodation of Individuals with Disabilities or with

Communications Barriers . ” Consistent wi th this policy, if an

employee needs an accommodation , they must participate in the

interactive process with Respondent, including filling out and

submitting the American with Disabilities Act ( ADA )

Accommodation Questionnaire. The employee and their phys ician

are required to document the disability and accommodation

request. Respondent then reviews the completed interactive

process paperwork and schedules a meeting to discuss the same

with the employee. This is to determine the accommodation that

is bei ng requested and if Respondent is able to provide the

requested accommodation, or whether other alternatives could be

provided.

20 . Petitioner submitted her reasonable accommodation

paperwork to Respondent on April 25, 2018. Petitioner’s

reasonable accom modation paperwork stated that she did not have

an impairment that substantially limited a major life activity

as compared to most people in the general population. However,

Petitioner did state that her impairment “limits patient

breathing, talking, thin king.”

21 . During the interactive process, Petitioner requested a

more open space to avoid panic attacks that might occur due to

claustrophobia.

22 . On May 14, 2018, Petitioner submitted a letter solely

focused on the Performance Notice relating to her exchange with

her supervisors on February 27, 2018. No mention was made of

Petitioner being unable to work successfully in her assigned

cubicle.

23 . Respondent attempted to schedule a meeting with

Petitioner on May 30, 2018, to discuss her request for a

reasonable accommodation. However, on May 31, 2018, Petitioner

re scheduled the meeting because she injured her eye.

24 . On June 1, 2018, Petitioner re scheduled the meeting

again, this time to take place on June 4, 2018. The purpose of

the meeting would be to discuss Petitioner’s interactive process

paperwork.

25 . Prior to the June 4, 2018 meeting, Ms. Loyd met with

Ms. Stephenson to review what options would be available to meet

Petitioner’s request for an accommodation.

26 . The June 4, 2018 meeting wa s held as scheduled and was

attended by Petitioner, Ms. Stephenson, and Ms. Loyd. At the

meeting, Ms. Loyd and Ms. Stephenson discussed the accommodation

request with Petitioner and advised her of what accommodations

Respondent would be able to offer her. Specifically, they

informed Petitioner she could work from home or use the

conference room in her immediate work area. As to Petitioner’s

desire to be reassigned to a different c ubicle or an office,

Ms. Stephenson and Ms. Loyd explained that the other c ubicles

were already previously assigned, and that other departments

were utilizing the offices in the building. Moreover, the

physical offices in the building were not a part of Petitioner’s

department.

27 . In an e - mail Petitioner sent to Ms. Loyd follo wing

their meeting , Petitioner inquired as to whether the wall on the

right side , and the front wall of her assigned cubicle , could be

taken down. This option was explored by Respondent and it was

determined that the walls at issue could not be moved or

r econfigured.

28 . Petitioner insisted that she should be permitted to

use offices in the building instead of being permitted to work

from home or in a conference room. Accordingly, Petitioner did

not accept either of the accommodations offered by Responde nt

and ceased engaging in the interactive process with Respondent.

29 . Petitioner would not have been subject to increased

duties if she chose to work from home. Respondent also examined

whether the cubicle walls could be removed. However, it was not

fe asible to reconfigure or move the cubicle walls.

30 . After the meeting, Petitioner emailed Ms. Loyd but did

not state that she believed the conference room accommodation,

or working from home, would be inappropriate. At hearing,

Ms. Stephenson could not recall Petitioner ever speaking with

her again about additional accommodation requests.

31 . Respondent reasonably determined that the nearby

conference room would be an open space for Petitioner to work,

thereby reducing the likelihood that Petitioner wou ld suffer

from claustrophobia. Petitioner agreed the conference room

Respondent offered to her is an open space.

32 . As noted previously, it is a common practice for

counselors who work in the field to work from home, as well as

from other locations. T he FITT counselor’s hard copy files are

in filing cabinets that are in a separate area away from the

cubicles. Therefore, Petitioner would not need to store her

files in the conference room.

33 . Petitioner worked in the original cubicle she was

assigned for seven months. In November 2018, an employee who

worked out of a different cubicle left the company and

Respondent offered Petitioner a new cubicle. Petitioner

accepted the same, and as of the date of the hearing Petitioner

continues to be employed by Respondent. 2/

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this cause pursuant

to sections 120.569, 120.57(1), and 760.11(4)(b) and (6),

Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016.

34 . Petitioner brings this action alleging that Respondent

discriminated against her based on her disability in violation

of the FCRA. Petitioner specifically asserts that Respondent

failed to provide her a reasonable accommodation during her

employment.

35 . The FCRA protects individuals from disability

discrimination in the workplace. See §§ 760.10 and 760.11, Fla.

Stat. Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discha rge or to 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,

pregnancy, national origin, age, handicap,

or marital status.

36 . Section 760.11(4)(b) permits a party for whom the

Commission determines that there is reasonable cause to believe

that a discriminatory practice has occurred to request an

administrative hearing before DOAH. Following an administrative

hearing, if the Administrative Law Judge (“ALJ”) finds that a

violation of the FCRA has occurred, the ALJ “shall issue an

appropriate recommended order in accordance with chapter 120

prohibiting the practice and providing affir mative relief from

the effects of the practice, including back pay.” See

§ 760.11(6), Fla. Stat.

37 . The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts

hold that federal decisions construing Ti tle VII are applicable

when considering claims under the FCRA. Harper v. Blockbuster

Entm't Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela

v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009);

and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla.

1st DCA 1996).

38 . Specifically regarding disability discrimination, the

FCRA is construed in conformity with the ADA found in 42 U.S.C.

§ 12112(a). Cordoba v. Dillard's, Inc. , 419 F .3d 1169, 1175

(11th Cir. 2005) (citing Wimberly v. S ecs. Tech. Grp., Inc. , 866

So. 2d 146, 147 (Fla. 4th DCA 2004))(“Because Florida courts construe the FCRA in conformity with the ADA, a disability

discrimination cause of action is analyzed under the ADA.”).

See also Holly v. Clairson Indus., L.L.C. , 492 F.3d 1247, 1255

(11th Cir. 2007)(FCRA claims are analyzed under the same standards as the ADA.).

39 . The burden of proof in administrative proceedings,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. Dep’t of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see also Dep’t

of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996)(“The general rule

is that a party asserting the affirmative of an is sue has the

burden of presenting evidence as to that issue.”). The

preponderance of the evidence standard is applicable to this

matter. See § 120.57(1)(j), Fla. Stat.

40 . Employees may prove discrimination by direct,

statistical, or circumstantial evide nce. Valenzuela v.

GlobeGround N. Am ., LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009).

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resorting to

inference or presumption. Denney v. City of Albany , 24 7 F. 3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that “only the most blatant remarks, whose intent could be nothing other than to

discriminate . . ., will constitute direct evidence of

discrimin ation.” Damon v. Fleming Supermarkets of Fla. Inc. ,

196 F. 3d 1354, 1358 - 59 (11th Cir. 1999) (citations omitted).

41 . Petitioner presented no direct evidence of

handicap/disability discrimination on the part of Respondent.

Similarly, the record in this pro ceeding contains no statistical

evidence of discrimination related to Respondent’s decision to

fail to provide Petitioner a reasonable accommodation.

42 . In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on ci rcumstantial

evidence of handicap/disability discrimination to prove her

case. For discrimination claims involving circumstantial

evidence, Florida courts follow the three - part, burden - shifting

framework set forth in McDonnell Douglas Corp. v. Green , 411

U . S . 792 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. See also Valenzuela , 18 So. 3d at 21 - 22; and St. Louis

v. Fla. Int’l Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

43 . Under the McDonnell Douglas framework, a petitioner

bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. See

McDonnell Douglas , 411 U . S . at 802 - 04; Burke - Fowler v. Orange

Cnty. , 447 F. 3d 1319, 1323 (11 th Cir. 2006). Demonstrating a

prima facie case is not diff icult, but rather only requires the

plaintiff “to establish facts adequate to permit an inference of

discrimination.” Holifield v. Reno , 115 F. 3d at 1562.

44 . To state a prima facie claim for disability

discrimination, Petitioner must s how that 1) she is disabled;

2) she was a “qualified individual”; and 3) she was

discriminated against because of her disability. See Lucas v.

W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001); and

Frazier - White v. Gee , 818 F.3d 1249, 1255 (11th Cir. 2016). The

em ployee may satisfy the third prong through showings of

intentional discrimination, disparate treatment, or failure to

make reasonable accommodations. 3/ Rylee v. Chapman , 316 Fed.

Appx. 901, 906 (11 th Cir. 2009) (citing Schwarz v. City of

Treasure Island , 5 44 F.3d 1201, 1212 n. 6 (11th Cir. 2008)).

45 . To prove unlawful discrimination in a failure to

accommodate claim, Petitioner must show that she was

discriminated against as a result of Respondent’s failure to

provide a reasonable accommodation. Petitione r bears the burden

both to identify an accommodation and show that it is

“reasonable.” Lucas , 257 F.3d at 1255. “ The duty to provide a

reasonable accommodation is not triggered unless a specific demand for an accommodation has been made.” Gaston v.

Bell ingrath Gardens & Home, Inc. , 167 F.3d 1361, 1363 (11th Cir.

1999). 46 . A qualified individual is not entitled to the

accommodation of her choice, but rather only to a “reasonable”

accommodation. Stewart v. Happy Herman's Cheshire Bridge, Inc. ,

117 F.3d 1278, 1286 (11th Cir. 1997). An accommodation is “reasonable” and, therefore, required under the ADA, only if it

enables the employee to perform the essential functions of the

job. LaChance v. Duffy's Draft House , 146 F.3d 832, 835 (11 th

Cir. 1998). An employer need not accommodate an employee in any

manner the employee desires, nor reallocate job duties to change

the essential functions of the job. Earl v. Mervyns, Inc. , 207

F.3d 1361, 1367 (11th Cir. 2000) . The intent of the ADA is that “‘an employe r needs only to provide meaningful equal employment

opportunities’ . . . ‘[t]he ADA was never intended to turn

nondiscrimination into discrimination’ against the non -

disabled.” U.S. EEOC v. St. Joseph's Hosp. , 842 F.3d 1333, 1346

(11th Cir. 2016) (quoting Terrell v. USAir , 132 F.3d 621, 627

(11th Cir. 1998) ).

47 . Furthermore, an employer is not required to provide an

employee with “the maximum accommodation or every conceivable

accommodation possible.” Stewart , 117 F.3d at 1285. Neither is

an employer re quired “to transform the position into another one by eliminating functions that are essential to the nature of the

job as it exists." Lucas , 257 F.3d at 1260 ; s ee also Sutton v.

Lader , 185 F.3d 1203, 1211 (11th Cir. 1999)(an employer is not

required to c reate alternative employment opportunities for a disabled employee); Willis v. Conopco, Inc. , 108 F.3d 282, 284 -

86 (11th Cir. 1997)(reassignment to a new position is required as a reasonable accommodation only if there is an available,

vacant position).

48 . If petitioner establishes a prima facie case, she

creates a presumption of discrimination. At that point, the

burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for taking the adverse employment

action. Valenzuela , 18 S o. 3d at 22. The reason for the

employer’s decision should be clear, reasonably specific, and worthy of credence. Dep’t of Corr. v . Chandler , 582 S o. 2d

1183, 186 (Fla. 1st DCA 1991). The employer has the burden of production, not persuasion, to demonst rate to the finder of fact

that the decision was non - discriminatory. Wilson v. B/E

Aerospace, Inc. 376 F .3d 1079, 1087 (11th Cir. 2004). This

burden of production is “exceedingly light.” Holifield , 115

F.3d at 1564. The employer only needs to produce e vidence of a

reason for its decision. It is not required to persuade the

trier - of - fact that its decision was actually motivated by the

reason given. St. Mary’s Honor Ctr. v. Hicks , 509 U . S . 502

(1993).

49 . If the employer meets its burden, the presumpti on of

discrimination disappears. The burden then shifts back to the

employee to prove that the employer’s proffered reason was not

the true reason but merely a “pretext” for discrimination.

Combs v. Plantation Patterns , 106 F. 3d 1519, 1538 (11th Cir.

199 7); Valenzuela , 18 So. 3d at 25. In order to satisfy this

final step of the process, the employee must “show directly that

a discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the empl oyment decision is not worthy of belief.” Chandler , 582

S o. 2d at 1186 (citing Tex. Dep’t of Cmty. Aff. v. Burdine , 450

US 248, 252 - 256 (1981) ) . Petitioner “must prove that the

reasons articulated were false and that the discrimination was

the real reaso n” for Respondent’s actions. City of Miami v.

Hervis , 65 So. 3 d 1110, 1117 (Fla. 3d DCA 2011) (citing

St. Mary’s Honor Ctr. , 509 U . S . at 515 (“A reason cannot be

proved to be ‘a pretext for discrimination’ unless it is shown

both that the reason was false, and that discrimination was the

real reason.”)).

50 . Despite the shifting burdens of proof, “the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff. ” Burdine , 450 U . S . at 253, 101 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 S o. 3d at 22.

51 . Based on the competent substantial evidence in this

matter, Petitioner failed to establish the first and third

elements of a prima facie case for handicap/ disability

discrimination.

52 . Petitioner’s reasonable accommodation paperwork stated

that she did not have an impairment that substantially limited a

major life activity as compared to most people in the general

population. In pertinent part, the ADA de fines “disability” as

a physical or mental impairment that substantially limits one or

more major life activities of such individual. U.S.C.

§ 12102(1)(A). Here, Petitioner’s reasonable accommodation

questionnaire, the only evidence Petitioner presented regarding

her alleged disability, states that she does not have an

impairment that substantially limits a major life activity. 4/

Therefore, Petitioner’s claim for disability discrimination

fails because she does not have a disability under the FCRA and

th erefore Respondent was not required to provide Petitioner with

a reasonable accommodation.

53 . Even if Petitioner was disabled under the FCRA, her

claim for handicap/disability discrimination would still fail as

a matter of law because Respondent offered her effective and

reasonable accommodations.

54 . Petitioner requested a more open space to avoid panic

attacks that might occur due to claustrophobia. Respondent

determined that the conference room would be an open space for

Petitioner to work. Petition er acknowledged that the conference

room Respondent offered her is an open space. Respondent also

offered Petitioner the opportunity to work from home because it

would have allowed Petitioner to have the open space she

requested. Therefore, Respondent pr ovided Petitioner with

effective reasonable accommodations. However, Petitioner chose

to not accept them. Respondent also investigated whether

Petitioner’s cubicle walls could be removed. However, it was

determined not to be feasible to reconfigure or m ove the walls.

While the accommodations offered to Petitioner were not optimal

(at least in the view of Petitioner) they were reasonable, which

is all that the law requires.

55 . Even if Petitioner had established a prima facie case

of disability discrimi nation, Petitioner’s claim would fail

because Respondent proffered legitimate non - discriminatory

reasons for its actions. Respondent adhered to its policies in

reviewing Petitioner’s reasonable accommodation questionnaire

and met with Petitioner to discus s the same. Petitioner

requested an open space to work in and Respondent provided her

two reasonable accommodations that would have allowed her to

work in a more open space. The offices Petitioner wanted to use

were earmarked for other programs and were not a part of

Petitioner’s department. Petitioner did not prove Respondent’s

legitimate non - discriminatory reasons for not providing her with

her desired accommodation were a pretext and that the real

reason for offering the conference room or the option to work

from home was motivated by discriminatory intent. To the

contrary, the evidence established that Respondent made a good

faith effort to identify reasonable accommodations to address

Petitioner’s workplace concerns, and offered those

accommodations to her.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Petitioner, Francesca

Thomas, did not prove that Respondent, SMA Be havioral Health,

Inc., committed an unlawful employment practice against her and

dismiss her Petition for Relief from an Unlawful Employment

Practice.

DONE AND ENTERED this 1 8 th day of December , 2019 , in

Tallahassee, Leon County, Florida.

W. DAVID WATKINS

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 Cle rk of the

Division of Administrative Hearings

this 1 8 th day of December , 2019 .

ENDNOTE S

1/ related to Petitioner allegedly The second Performance Notice

sharing a company Avatar login and password with a co - worker, in

violation of company policy.

2/ The record is silent as to whether Petitioner continues to

work out of the cubicle she was given in November 2018.

3/ The FCRA does not contain an explicit provision establishing

an employer’s duty to provide reasonable accommodations for an

employee’s h andicap/disability, but by application of the

principles of the ADA, such a duty is reasonably implied. Brand

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

1994).

4/ In her handwritten note below the box checked “No , ”

Petitioner stated th at the “impairment limits patient breathing,

talking, thinking.” While these are undoubtedly potentially

serious effects of Petitioner’s panic attacks and claustrophobia,

Petitioner evidently did not consider them to substantially limit

any of her major l ife activities.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Brett Purcell Owens, Esquire

Fisher & Phillips, LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Kevin G. Thomas, Esquire

Suite A4

300 Bayview Drive

Sunny Isles Beach, Florida 33160

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Talahassee, F lorida 32399

(eServed)

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 tha t

will issue the Final Order in this case.