19-005061 Brenda Green vs. Sarasota School Board Status: Closed Recommended Order on Wednesday, January 22, 2020.

Summary: Petitioner failed to appear at the final hearing. Consequently, Petitioner failed to meet her burden to demonstrate Respondent had discriminated against her based on her handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA GREEN ,

Petitioner ,

vs. Case No. 19 - 5061

SARASOTA SCHOOL BOARD ,

Respondent .

/

RECOMMENDED ORDER

Administrative Law Judge Hetal Desai of the Division of

Administrative Hearings (DOAH) held the final hearing in this

matter by video tele conference with sites in Tallahassee and

Sarasota, Florida on January 15, 2020.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Robert K. Robinson, Esquire

Kirk Pinkerton

240 South Pineapple Avenue , 6 th Floor

Sarasota, Florida 34236 - 6014

STATEMENT OF THE ISSUE

Whether Respondent, Sarasota County School Board (School

Board) , discriminated against Petitioner, Brenda Green , on the

basis of her handicap in violation of section 760.10, Florida

Statutes (2018). 1/

PRELIMINARY STATEMENT

On October 15 , 2018, Petitioner filed an Employment

Complaint of Discrimination (Complaint) with the Florida

Commission on Human Relations (FCHR) . The Complaint assert s

Respondent discriminated against her on the basi s of

"Disability/Handicap . " Specifically, Petitioner alleges ,

"Respondent failed to provide reasonable accommodations due to my

disability and unjustly terminated my employment . "

On August 9 , 2019, FCHR notified Petitioner of its

determinati on that no reasonable cause existed to believe that

Respondent engaged in an unlawful employment practice under

chapter 760, also known as the Florida Civil Rights Act of 1992

(FCRA). On September 10 , 2019, Petitioner filed a Petition for

Relief with FCHR and requested an administrative hearing . The

Petition erroneously listed the School Board's representative

(instead of Petitioner's representative) as " Dr. Genise Pennant "

but Dr. Pennant was treated by FCHR as Petitioner's

representative and was included in FCHR's service list . On

September 19 , 2019, FCHR referred this matter to DOAH, where it

was assigned to the undersigned to conduct a formal evidentiary

hearing.

On October 7, 2019, the School Board filed a unilateral

response to the Initial Order which stated: "Efforts were made

to contact Petitioner, but no response was received . " Because

Petitioner had not filed a response or coordinated with the

School Board, and because it was unclear why Dr. Genise Pennant

was listed as Petit i o ner's representative , the undersigned issued

an Order to Show Cause and noticed a telephonic pre - h earing

conference to be held on October 25, 2019. Petitioner did not

respond to the Order to Show Cause or attend the October 25 ,

2019, hearing.

On October 28, 2019, the undersigned issued a nother Notice

of Telephonic Pre - hearing Conference notifying the parties of the

dat e, time, and call - in directions to participate in a pre -

hearing tele conference. Similarly, for the final hearing, the

undersign ed issued a Notice of Hearing by Video Teleconference

notifying the parties of the date, time, and location of the

final hearing, and other pertinent procedures.

All Notices and Orders issued by the undersigned and sent by

DOAH were mailed to Petitioner' s address of record on file with

FCHR and with DOAH. There was no indication Petitioner failed to

receive these Notices and Orders .

Meanwhile, DOAH staff attempted to contact Petitioner to

verify her address, but did not receive a response. The

undersigned issued a Second Order to Show Cause to ensure

Petitioner was aware of the final hearing date. On December 23,

2019 , Petitioner fi led an ex parte Response to the Show Cause

Request, indicating that she was aware of the final hearing, she

was receiving the pleadings, and she was seeking counsel.

Petitioner failed to participate in the duly noticed

pre - hearing telephone conferenc e on January 8, 2020 . At that

hearing, Respondent' s representative indicated he had attempted

to confer with Petitioner but was unab le to make contact.

Moreover, the School Board had not received any exhibits or a

witness list from Petitioner . Petitione r did not file any

exhibit or witness lists with DOAH, nor did she provide any

copies of exhibits she intended to use at the final hearing, as

indicated in the Notice of Hearing .

On January 14, 2020, Petitioner filed an ex parte Motion for

Summary Judgment and Reme d y in Equity. This motion was denied by

an Order issued January 16, 2020.

Petitioner did not appear at the final hearing on

January 15, 2020. The hearing was delayed for approximately 10

to 15 minutes while DOAH staff attempted to reach Petitioner at

her only known phone number, but s he did not answer . DOAH staff

also verified Petitioner was not in the building of the hearing

site in Sarasota.

Respondent proffered exhibits 1 through 29 at the final

hearing. The final hearing was recorded, but no transcript was

ordered, nor has a transcript of the proceedings been filed with

DOAH.

FINDING S OF FACT

1. The final hearing was officially convened at 9 :15 a.m.,

on January 15, 2020 .

2. Respondent' s counsel and a School Board representative

appeared at the final hearing. Petitioner did not appear.

3. Although Petitioner attached documentation to the Motion

for Summary Judgment and Remedy in Equity filed the day before

the hearing , this documentation was not identified as exhibits

for the hearing, provided to opposing counsel, or acco mpanied by

an affidavit . As such, it was not considered in lieu of sworn

testimony, admissible evidence , or Petitioner's appearance at the

final hear ing .

4 . Respondent's counsel confirmed the School Board had

received the Notice of Hearing and w as aware of the date, time,

and location of the final hearing. Counsel also confirmed he had

not received Petitioner's Motion for Summary Judgment and Remedy

in Equity filed on January 14, 2020.

CONCLUSIONS OF LAW

5 . 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(6) and (7), Florida

Statutes. See Fla. Admin. Code R. 60Y - 4.016; and McElrath v.

Burley , 707 So. 2d 836, 841 (Fla. 1st DCA 1998)(finding the FCRA

on its face satisfies the right to due process by providing for

an administrative hearing followed by judicial appellate review).

6 . The FCRA protects individuals from discrimination in the

workplace. Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge 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 employm ent, because of such

individual' s race, color, religion, sex,

pregnancy, national origin, age, handicap , or

marital sta tus.

7 . Because the FCRA is patterned after federal anti -

discrimination laws, such as the Americans with Disabilities Act

(ADA) , courts rely on ADA cases when analyzing handicap or

disability claims brought pursuant to the FCRA. See Gonzalez v.

Wells Fargo Bank, N.A. , 2013 U.S. Dist. LEXIS 139916, at *19

(S.D. Fla. Sep. 27, 2013)("The analysis of a disability

discrimination claim under the FCRA is identical to that employed

under the Americans With Disabilities Act"). 2/

8 . Petitioner has the burden of proving a prima facie case

of discrimination by a preponderance of the evidence. See

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

evidence" is the "greater weight" of th e evidence, or evidence

that "more likely than not" tends to prove the fact at issue.

This means that if the undersigned found the parties presented

equally competent substantial evidence, Petitioner would not have

proved her claims by the "greater weight " of the evidence, and

would not prevail in this proceeding. See Gross v. Lyons , 763

So. 2d 276, 289 n.1 (Fla. 2000).

9 . To establish a prima facie case of disability

discrimination under the FCRA, Petition er must show: (1) s he has

a disability or handi cap; (2) s he is a qualified individual; and

(3) s he was subjected to unla wful discrimination by the School

Board because of h er handicap . See Fagan v. Palm Beach Cty.

Sheriff's Off. , 2019 U.S. Dist. LEXIS 147572, at *4 (S.D. Fla.

Aug. 27, 2019)(citing Holly v. Clairson Indus., L.L.C. , 492 F.3d

1247, 1255 - 56 (11th Cir. 2007)).

10 . By failing to appear at the final hearing, Petitioner

failed to present any evidence to meet her burden of proof fo r

any type of discrimination. T here was no evidence of any of the

elements related to the prima facie case for handicap

discrimination under a failure to accommodate or wrongful

termination theory . Consequently, Petitioner has not proven the

School Board discriminated against h er .

RECOMMENDATION

It is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding Petitioner, Brenda Green ,

did not prove Respondent, Sarasota County School Board , committed

an unlawful employment practice under the FCRA based on h er

alleged handicap , and dismissing the Petition in its entirety.

DONE AND ENTERED this 2 2 nd day of January , 2020 , in

Tallahassee, Leon County, Florida.

HETAL DESAI

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 January , 2020 .

ENDNOTE S

1/ references to the Florida Statutes and Florida All

Administrative Code Rules are to the 2018 versions (the versions

in effect at the time of the alleged discrimination ) unless

otherwise noted.

2/ FCRA prohibits discrimination in employment on the Whereas the

basis of "handicap , " t he ADA prohibits discrimination on the

basis of "disability." For the purposes of employment

discrimination, the FCRA does not define "handicap , " but the

statute conforms to the ADA definition of "disability," and the

terms are interpreted under the same analysis. See Byrd v. BT

Foods, Inc. , 26 So. 3d 600 (Fla. 4th DCA 2010) .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Arthur S. Hardy, Esquire

Matthews Eastmoore

1626 Ringling Boulevard , Suite 300

Sarasota, Florida 34236 - 6815

(eServed)

Dr. Genise Pennant

Apartment 157

1135 Southeast 41st Drive

Gainesville, Florid a 32641 - 8462

Robert K. Robinson, Esquire

Kirk Pinkerton

240 South Pineapple Avenue , 6 th Floor

Sarasota, Florida 34236 - 6815

(eServed)

Brenda Green

Apartment 157

1135 Southeast 41st Drive

Gainesville, Florida 32641 - 8462

Brenda C. Green

4482 Arley Road

North Port, Florida 34288 - 7396

Cheyenne Costilla, General 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.