20-002126 Angela Wright vs. Florida Department Of Economic Opportunity Status: Closed Recommended Order on Tuesday, January 19, 2021.

Summary: Petitioner failed to established that Respondent constructively discharged her from employment, thus her remaining allegations of harassment, hostile work environment, discrimination, and retaliation (disability) are time-barred.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A NGELA W RIGHT ,

Petitioner ,

vs. Case No. 20 - 2126

F LORIDA D EPARTMENT OF E CONOMIC

O PPORTUNITY ,

Respondent .

/

R ECOMM ENDED O RDER

On November 9, 2020, Administrative Law Judge Robert J. Telfer III, of

the Florida Division of Administrative Hearings (Division), conducted an

evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2018), in

Tallahassee, Florida, via ZOOM web - conference .

A PPEARANCES

For Petitioner: Angela Michelle Wright, p ro se

4102 Gre e nsboro Highway

Quincy, Florida 32351

For Respondent: Brandon W. White, Esquire

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE S

W hether Respondent Florida Department of Economic Opportunity ( the

Department or DEO) engaged in discriminatory practices, concerning

PetitionerÔs disability, in violation of the Florida Civil Rights Act (FCRA), as

alleged in the Petition for Relief; and, if so, the appropriate penalty.

P RELIMINARY S TATEMENT

On July 31, 2019, Petitioner, Angela Wright (Petitioner or Ms. Wright )

completed a Technical Assistance Questionnaire for Em ployment Complaints

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

DEO discriminated against her based upon a disability, harassed her based

upon a disability, and retaliated against her based upon a disability, in

violation of the FC RA. On February 20, 2020, after more than 180 days

elapsed since filing her complaint of discrimination, and with FCHR not

having completed its investigation of the complaint of discrimination,

Ms. Wright executed an Election of Rights in which she electe d to file a

Petition for Relief with the Division. On April 28, 2020, Ms. Wright filed a

Petition for Relief, which stated:

I constantly complained to upper management on

several occasions advising them that I was being

harassed mainly by Sharon Lampkin i n HR and a

previous supervisor Ayman Youssef concerning my

timesheet, Leave Without Pay (LWOP), On -

Demand Pay and cancellation of my health

insurance. This was a violation because it created a

hostile work environment in which I had to endure

because I nee ded my job.

The retaliation that occurred was HR placing me

on LWOP. I was on FMLA intermittently as

needed; therefore, I should have remained in

regular pay status. Also, HR paid me On Demand

which caused my health insurance to be cancelled

several times . Although my employer allowed me to

take FMLA, they still interfered with the way the

leave was administered which constitutes a

violation of my FMLA rights.

Upper Management advised my co - worker Charlie

Davis that he could not donate me anymore sick

lea ve because they know he was my main source

for donation of sick leave when needed. The year of

2017 was very tough because I had to use a lot of

LWOP once I exhausted accumulated leave for the

month. Gail Howell in HR was very helpful with

advising me of m y overpayments and the process of

repaying them through Salary Refund. This was a

violation because it interfered with my right to use

donated sick leave for FMLA.

Sharon Lampkin had been out on retirement and

returned to HR in 2017. In October of 2017, s he

cancelled my regular payment and paid me through

On Demand pay. A Salary Refund in the amount of

$947.40 for the months of July, August and

September was deducted and left me with a net

balance of $145.57 for the month of October. I

assume she didnÔt st op the payment in time, so, the

normal $1500 was deposited into my First Florida

Credit Union savings account. I had started paying

my bills as usual; however, on 11/02/17, HR did a

Withdrawal of Check in the amount of $1500 which

left my savings account w ith a negative balance ( -

723.73). This really caused me a financial hardship

because I was already struggling trying to pay co -

payments, pay for medications and handle other

financial obligations. This happened again in June

2018. My gross pay for the mont h was $1,340.82

minus the Salary Refund in the amount of $741.26

which left me with a net pay of $136.46. As, I

stated earlier, paying me On Demand was

retaliation which is a violation of my ADA rights.

Also, trying to discourage me from using FMLA is a

vi olation of my FMLA rights.

In June 2018, I was advised to submit a new

reasonable accommodation request which was

denied by the Office of Civil Rights because it

would cause the agency an undue hardship. This

was a violation of my ADA rights because Steph en

Huddleston did not get in touch with me to begin

the reasonable accommodation interactive process

as s t ated in the email. They also tried to deter me

from exercising my FMLA rights because I was

already working the request schedule.

In August 2018, I r esigned from my employer

because I worked in an intimidating, hostile

environment that was attributable to my medical

condition; and, I complained about it repeatedly to

no avail. I applied for Reemployment Assistance

with DEO, and, I was denied benefits o n 09/18/18.

They stated I quit because the employer refused to

change the work schedule which was agreed upon

at the time of hire. However, I had an Appeals

Telephone Hearing on 10/23/18 which also was

denied stating I voluntarily quit because my

request t o begin work after 10:30 AM but before

12:00 PM was denied; and, I could not be at work

as scheduled at 10:30 due to fatigue and my work

commute. This was a violation of my ADA rights

because my employer did not take the appropriate

action to stop the hara ssing, intimidating behavior

that created the hostile work environment.

Therefore, I feel as though I had no chose but to

resigned [sic] due to my health.

FCHR thereafter transmitted the Petition to the Division and assigned

the undersigned Administrative Law Judge (ALJ) to conduct an evidentiary

hearing.

The undersigned originally noticed this matter for final hearing on

August 27, 2020. On July 29, 2020, DEO filed a Motion in Limine, to which

Ms. Wright filed a response. DEOÔs Motion in Limine sought t o preclude

testimony and evidence related to (a) alleged Family Medical Leave Act

(FMLA) violations and retaliation, (b) acts that occurred more than one year

prior to the date Ms. Wright filed her complaint with FCHR, and (c) acts

associated with Ms. Wrig htÔs Reemployment Assistance application and

appeal. The undersigned conducted a telephonic hearing on August 14, 2020.

On August 18, 2020, the undersigned entered an Order Granting , I n Part,

A nd Denying, I n Part, RespondentÔs Motion I n Limine, which exclu ded all

evidence or testimony concerning alleged FMLA violations and Ms. WrightÔs

claim for Reemployment Assistance. However, the undersigned also held:

DEOÔs Motion is D ENIED , without prejudice, to the

extent it seeks to exclude alleged acts that occurred

more than 365 days prior to July 31, 2019, which is

the date Ms. Wright filed her charge with FCHR.

The undersigned notes that in Ms. WrightÔs filings

with FCHR, she references a hostile work

environment. In her Response, Ms. Wright

contends that the unde rsigned may consider acts

that occurred more than 365 days prior to her filing

date under the Ñcontinuing violationsÒ doctrine, as

enunciated in National Railroad Passenger

Corporation v. Morgan, 536 U.S. 101 (2002). As

Ms. WrightÔs charge references a ho stile work

environment, it is possible that the continuing

violations doctrine may be applicable in this matter

to consider older acts that Ms. Wright may allege

are part of the same unlawful practice. The

undersigned will entertain objections and

argument from DEO as to whether these older acts

are admissible at the final hearing.

On August 24, 2020, DEO filed a Motion to Continue Final Hearing,

which the undersigned granted, resetting the final hearing for September 29

and 30, 2020. On September 14, 2020 , the parties filed a Stipulated Motion

for Continuance, which the undersigned granted, resetting the final hearing

for November 9 and 10, 2020.

The undersigned conducted the final hearing on November 9, 2020, by

Zoom web - conference. Petitioner testified on her own behalf, and presented

the testimony of Deidra Milton, Tieka Wright, and Natasha Williams. The

undersigned admitted PetitionerÔs Exhibits P2 through P9 , P11 , and P12 into

evidence. Sharon Lampkin, Donna Pottle, Kendric Marche Leonard, and

Stephe n Huddleston testified on behalf of Respondent. The undersigned

admitted RespondentÔs Exhibits R1 through R13 into evidence.

The two - volume T ranscript of the final hearing was filed with the Division

on December 14, 2020. On December 28, 2020, DEO timely submitted its

proposed recommended order, which the undersigned has considered in the

preparation of this Recommended Order. Ms. Wright did not submit a

proposed recommended order.

All statutory references are to the 2018 codification of the Florida

Statu tes, unless otherwise indicated.

F INDINGS OF F ACT

1. Ms. Wright was an Employment Program Specialist with the

Department Ôs Reemployment Assistance Division . Although she primarily

worked in the Special Programs Child Support unit, she was also assigned to

the Benefit Records unit during her employment with the Department.

2. Ms. Wright testified that her issues with the Department started in

2014, and continued until her resignation on August 15, 2018.

3. In 2014, Ms. Wright began experiencing serious med ical issues,

including bowel and bladder trouble, fatigue, and fibromyalgia. In September

2014, she took a month of leave from her employment because of these

medical issues. Upon her return, Ms. Lampkin, who worked in DEOÔs human

resources department (HR) , primarily focused on payroll, and Ms. WrightÔs

then - supervisor, Ayman Youseff, instructed her to use Ñleave without payÒ for

additional absences.

4. Ms. Wright testified that after her return in 2014, Mr. Youseff began

harassing her after she took anothe r leave from employment, in the form of

requiring her to provide additional supporting medical documentation for the

leave. When Ms. Wright informed Mr. Youseff that his request was incorrect,

he apologized and advised his supervisors of the mistake.

5. Ms . Wright and her former co - worker, Ms. Milton, both testified that

Mr. Youseff was rude and unprofessional. Ms. Milton testified that

Mr. Youseff also had issues with Ms. Wright concerning her absences due to

illnesses, and with other employees donating l eave to Ms. Wright.

6. Ms. Wright also testified that Mr. Youseff made her turn in her

timesheets to him directly, as opposed to HR. Ms. Wright testified that she

viewed this request, as well as requests from HR to use donated sick leave

after she had exh austed all other remaining leave, and ultimately to use

leave without pay Ð which she acknowledged were prompted by her absences

from work during this time period Ð as harassment.

7. In February 2015, Ms. Wright requested a transfer back to a previous

unit wit hin DEO, under a supervisor she liked, because she felt she was

being harassed. DEO granted her transfer request in less than two weeks.

Ms. WrightÔs new supervisor was Mr. Leonard.

8. However, after her transfer, Ms. WrightÔs medical conditions did not go

away. In September 2016, she submitted a request for a modified schedule

accommodation to Mr. Huddleston, in DEOÔs Office for Civil Rights, which

noted that she had issues in the mornings because of her medical condition.

DEO granted this request, and cha nged Ms. WrightÔs work schedule to

10:30 a.m. t hr o ugh 6:30 p.m.

9. Beginning in early 2017, DEO overpaid Ms. Wright several times

because she failed to complete her timesheet and failed to timely document

her use of leave without pay. In August 2017, Ms. Wright took a one - month

absence from employment because of her medical issues, and was frequently

absent from work during the following few months. During this time period,

an HR employee accepted Ms. WrightÔs incorrect timesheets for those time

periods, a nd recouped each monthÔs overpayment from the following monthÔs

pay. This became an issue for DEO because Ms. Wright utilized leave without

pay for most of the month of August; however, the resulting lack of funds

owed to her precluded DEO from immediate r ecoupment.

10. Ms. Lampkin, who had left her employment with DEO but returned to

her position in August 2017, recognized the payment issue with Ms. Wright.

Ms. Lampkin testified that, because of Ms. WrightÔs submittal of timesheets

that utilize leave witho ut pay after the payroll deadline for correcting

timesheets, DEOÔs HR department began paying Ms. Wright Ñon - demand,Ò

i.e., payment for hours that she actually worked, to avoid overpaying

Ms. Wright month after month.

11. DEO introduced into evidence the Bureau of State Payroll Manual

(Manual), which governs DEOÔs handling of payroll issues. With respect to

salary overpayment, the Manual states that Ñ Agencies are responsible for

identifying and preventing salary overpayments . . . . Ò Although Ms. Wright

con tends that this switch from recoupment (which resulted in salary

overpayment) to payment on - demand was evidence of harassment based on

her disability , she also testified, on cross - examination, that ÑitÔs verified in

[the Manual] that it could be done that way.Ò

12. Ms. Lampkin also credibly explained an issue that arose with

Ms. WrightÔs allegation that DEO canceled her insurance benefit s , which

Ms. Wright considered additional harassment. Ms. Lampkin testified:

The term canceled is kind of an overstatem ent.

There is a glitch in their insurance if I have to

cancel their check and pay them on demand,

because that means that the payment doesnÔt go

over when the regular payroll runs, and it gets paid

on supplemental, and itÔs usually on the same date

that th eir payday is, but then itÔs Ð the payment to

the insurance companies would be sent at a later

date than the other ones. It would be a lag time

there.

* * *

If I canceled their monthly paycheck, that stops

payment going to any pretax deductions; it would

s top them. And then by paying them on demand,

that would create the payment and send it over,

but the difference in an on - demand and the regular

payroll is processed approximately one week before

payday. And on - demand is processed three days

before payday. Technically two days, because the

third day is when they get paid so Ð so itÔs that lag

time from a week to down to three days.

13. Ms. Wright also testified that DEO engaged in harassment in

discouraging other employees from donating sick leave to her. For example,

in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO

management level employee, from donating hours to her.

14. DEO presented evidence that Ms. Wright was the recipient of many

sick leave donations during her employment; all told, she received and used

over 1,000 hours between 2014 and her resignation. Although Mr. Davis had

donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was

Ms. LampkinÔs supervisor in DEOÔs HR Department, explained that DEO

employees in a supe rvisory or management position Ñare highly discouraged

from donating to employees because it Ï it could be construed as favoritism.Ò

Ms. Wright testified that she discussed Mr. DavisÔs intention to donate

additional sick leave hours with another DEO employ ee, and Mr. Davis was

ultimately permitted to donate sick leave to Ms. Wright.

15. On February 6, 2018, in response to Ms. WrightÔs expressed concerns,

individuals in Ms. WrightÔs supervisory chain and Ms. Lampkin, met with

Ms. Wright to discuss two option s she could use in an attempt to resolve her

leave and payroll issues: (a) be paid on - demand early, with the balance paid

after she finalized her timesheet at the end of the month; or (b) remain on

automatic pay, but provide donated leave hours and any nec essary medical

certification supporting their use by the 15 th of each month.

16. Following the February 6, 2018 , meeting, Ms. Wright began providing

medical certifications , which stated that she needed time off from work

intermittently to attend medical ap pointments. Ms. Wright testified that she

believed that these medical certifications allowed her to arrive for work as

late as she felt necessary due to her medical condition. Ms. Wright, during a

June 5, 2018 meeting with Mr. Leonard, expressed this belie f; Mr. Leonard,

in an email to Ms. Wright that same day, asked her Ñto provide supporting

documentation regarding the need to arrive at work after 10:30 a.m. since the

most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.Ò

17. Mr. Leonar d also testified about his teamÔs experience covering for

Ms. Wright when she was absent. He stated that Ms. Wright cross - trained

other members of this team to complete her work in her absence. However,

when covering for Ms. Wright, these team members wou ld then have work

duties above and beyond their regular work duties.

18. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston

in DEOÔs Office for Civil Rights requesting a flexible, part - time schedule that

would allow her to arrive for work be tween 10:30 a.m. and noon , and end her

workday at 6:30 p.m. (Second Accommodation Request). With this Second

Accommodation Request, Ms. Wright also submitted a letter from her

physician stating that she was unable to arrive to work and do her job before

10 :30 a.m., and would benefit from the flexible schedule she requested.

19. At the time of Ms. WrightÔs Second Accommodation Request, DEOÔs

Reemployment Assistance program was undergoing a significant

reorganization. Ms. Wright worked in the Special Programs unit of DEOÔs

Reemployment Assistance program at that time.

20. Mr. Huddleston testified that, after receiving Ms. WrightÔs Second

Accommodation Request, DEO decided to deny it. In an email dated July 11,

2018, Mr. Huddleston wrote:

After reviewing your request, at this time, your

request, to modify your accommodation of a flexible

part - time work schedule is denied. Currently your

accommodation allows you to work at 10:30 AM

instead of your regularly scheduled start time of

8:00 AM. Your new accommodation request asks

that you be allowed to arrive at work after 10:30

AM but before 12:00 PM. In making this decision

our office has spoken with your management team

and has determined that this modification would

cause an undue hardship. This modification to yo ur

existing accommodation would also require a

lowering of performance or production standards.

Based on these two factors, we have determined

that you would not be able to perform the essential

functions of your position if this modification were

to be pu t into place. The Equal Employment

Opportunity Commission states that essential

functions are basic job duties that an employee

must be able to perform, with or without a

reasonable accommodation. These duties must be

performed to achieve the objectives of the job.

As part of this, and all accommodation request

reviews, our office analyzed your position to

determine its purpose and essential functions,

consulted with your management team, and

researched and explored accommodation options to

assess the effe ctiveness of the accommodation.

During this interactive process we explored the

possibility of reassigning you to another position

that was as close as possible to your current

position in status and pay; however, we were

unable to find a suitable position . There are no

part - time positions currently available and the

essential functions of your position can not be

completed working the hours you requested.

Our office would be more than happy to meet with

you to discuss this further and to explore other

acc ommodation options that you and/or your

medical professional come up with.

21. However, on July 10, 2018 Ð the day before Mr. Huddleston sent the

email denying the Second Accommodation Request Ð Ms. Wright went on

another month - long leave of absence from her employment because of her

worsening medical condition. Ms. Wright testified that she believed that DEO

would approve of her Second Accommodation Request and that, after

returning to work, she would start the new schedule.

22. Ms. Wright testified that she did not know the status of her Second

Accommodation Request until she returned to work (after her month - long

leave of absence) on August 13, 2018 , and read Mr. HuddlestonÔs email. She

sent him the following email response later that afternoon:

Thanks for reviewing my request to modify my

work schedule. I understand that there is no part -

time positions available; but I was referring to me

working at least 30 hours per week. When I met

with my supervisor Marche and Joel in June

concerning me arriving later t han my scheduled

time 10:30 AM, I advised them that I needed to

request a modification to my previous work

schedule because I moved back home with my mom

which is outside of Quincy due to my health. I also

advised them that it was impossible for me to

arri ve to work at 10:30 AM due to the distance I

had to travel and the medications I take. I informed

them that 11:15 or 11:30 would work better for me

because I understand that my job consists of duties

that must be performed in order to achieve the

objective s outlined for the job.

Please let me know when thereÔs a good time for us

to meet. Thanks again for your help concerning this

matter.

23. Rather than wait for Mr. HuddlestonÔs response, Ms. Wright resigned

on August 15, 2018, by a letter that she left i n a co - workerÔs chair. This

resignation letter does not identify any reason for her resignation.

24. On August 20, 2018, Mr. Huddleston Ð unaware of Ms. WrightÔs

resignation Ð actually responded to Ms. WrightÔs August 13, 2018 , email,

inviting her to meet with him about her concerns.

25. Ms. Wright testified that she has not sought out employment after her

resignation from DEO because of her medical condition.

26. Ms. Wright presented no persuasive evidence that DEOÔs actions

subjected her to harassment based o n her disability, or that such actions

were sufficiently severe or pervasive to alter the terms and conditions of her

employment to create a hostile work environment. There is no competent,

substantial evidence in the record upon which the undersigned coul d make a

finding of unlawful disability harassment or hostile work environment.

27. Ms. Wright presented no persuasive evidence that, at the time of her

resignation, her working conditions were so intolerable that a reasonable

person in her position would have felt compelled to resign.

C ONCLUSIONS OF L AW

28. The Division has jurisdiction over the subject matter and the

parties to this proceeding in accordance with sections 120.569, 120.57(1),

and 760.11(8), Florida Statutes, and Florida Administrative Cod e Rule 60Y -

4.016.

29. The FCRA protects individuals from discrimination and retaliation 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 dis charge or to fail or refuse to hire any

individual, or otherwise discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individualÔs race, color, religion, sex, national

origin, age , handicap, or marital status.

(b) To limit, segregate, or classify employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of

employment opportunities, or adversely affect any

individualÔs status as an empl oyee, because of such

individualÔs race, color, religion, sex, national

origin, age, handicap, or marital status.

* * *

(7) It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organi zation 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, testified,

assisted, or participated in any manner in an

investiga tion, proceeding, or hearing under this

section.

30. Because the FCRA is patterned after federal anti - discrimination laws,

such as Title VII of the Civil Rights Act of 1964, as amended (Title VII),

Florida courts rely on federal Title VII cases when consi dering claims under

the FCRA. See Harper v. Blockbuster EntmÔt Corp. , 139 F.3d 1385, 1387 (11th

Cir. 1998); Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d

DCA 2009).

31. Specifically regarding disability discrimination, the FCRA is constr ued

in conformity with the Americans With Disability Act (ADA), found in 42

U.S.C. § 1201, et seq . See Cordoba v. DillardÔs, Inc., 419 F.3d 1169, 1175 (11th

Cir. 2005)(citing Wimberly v. Secs. Tech. Grp., Inc. , 866 So. 2d 146, 147 (Fla.

4th DCA 2004)(ÑBeca use Florida courts construe the FCRA in conformity

with the ADA, a disability discrimination cause of action is analyzed under

the ADA.Ò). See also Holly v. Clairson Inds., LLC, 492 F.3d 1247, 1255 (11th

Cir. 2007)(holding that FCRA claims are analyzed und er the same standards

as the ADA).

32. The burden of proof in an administrative proceeding is on Ms. Wright

as the complainant. See DepÔt of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)(ÑThe general rule is that

a party asserting the affirmative of an issue has the burden of presenting

evidence as to that issue.Ò). To show a violation of the FCRA, Ms. Wright

must establish, by a preponderance of the evidence, a prima facie case of

discrimination, retaliat ion, harassment, or hostile work environment. See St.

Louis v. Fla. IntÔl Univ. , 60 So. 3d 455, 458 - 59 (Fla. 3d DCA 2011)(reversing

jury verdict awarding damages on FCRA racial discrimination and retaliation

claims where employee failed to show similarly s ituated employees outside

his protected class were treated more favorably). A Ñprima facieÒ case means

it is legally sufficient to establish a fact or that a violation happened, unless

disproved.

33. The Ñpreponderance of the evidenceÒ standard is the Ñgre ater weightÒ

of the evidence, or evidence that Ñmore likely than notÒ tends to prove the fact

at issue. This means that if the undersigned found the parties presented

equally competent substantial evidence, Ms. Wright would not have proved

her claims by th e Ñgreater weightÒ of the evidence, and would not prevail in

this proceeding . See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

Ms. WrightÔs Actions Are Time - Barred From Consideration

34. To establish a prima facie case of harassment or hostile work

environment, Ms. Wright must show that she: (a) is a qualified individual

with a disability under the ADA; (b) was subject to unwelcome harassment;

(c) the harassment was based on her disability; (d) the harassment was

sufficiently severe or pervasive to alter the conditions of her employment and

to create an abusive working environment; and (e) that the Department knew

or should have known of the harassment and failed to take prompt remedial

action. See Razner v. Wellington RegÔl Med. Ctr., Inc., 837 So. 2d 437, 440 - 41

(Fla. 4th DCA 2002).

35. The Department appears to concede in its Proposed Recommended

Order that Ms. Wright is a qualified individual under the ADA. Although the

FCRA does not define the word Ñhandicap,Ò the Fifth District Court of Appeal

h as looked to the Florida Fair Housing Act, which defines the term as

meaning that Ñ[a] person has a physical . . . impairment which substantially

limits one or more life activities, or he or she has a record of having, or is

regarded as having, such physic al . . . impairment[.]Ò Greene v. Seminole Elec.

Co - Op, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997); § 760.22(3)(a), Fla.

Stat. The record evidence establishes that Ms. Wright is a qualified

individual under the ADA.

36. Ms. Wright raised numerous action s and events that occurred over the

four years that led up to her resignation as proof of harassment and a hostile

work environment. As noted previously, the Department previously filed a

Motion in Limine that asked the undersigned, inter alia, to exclude evidence

of any alleged actions that occurred more than 365 days prior to July 31,

2019, which was the date she filed her charge of discrimination, pursuant to

section 760.11(1 ) . See also Greene, 701 So. 2d at 648 (holding that

section 760.11(1) operates as a statute of limitations, and any claim for

damages arising out of acts occurring more than one year prior to the date

the Petitioner files the charge is barred).

37. The undersigned, in the August 18, 2020 , Order Granting, in Part, and

Denying, in Part , RespondentÔs Motion in Limine, deferred ruling on DEOÔs

motion because Ms. WrightÔs contentions concerning actions that occurred

prior to July 31, 2018 , could be considered under the Ñcontinuing violations

doctrine,Ò as enunciated in National Railroad Pa ssenger Corporation v.

Morgan , 536 U.S. 101 (2002). The undersigned notes that the Department

restated its objection to the consideration of the pre - July 31, 2018 , evidence

at the beginning of the final hearing, then did so again after Petitioner

rested, a nd did so again after it rested. The undersigned again deferred

ruling on this objection, directing the parties to address this issue in their

proposed recommended orders. The undersigned has reviewed the evidence

presented to Ñdetermine whether the acts a bout which [Ms. Wright]

complains are part of the same actionable hostile work environment practice,

and if so, whether any fact falls within the statutory time period.Ò Id. at 120.

38. The Eleventh Circuit has construed Morgan to allow Ñcourts to view

all egations of a hostile work environment as a single unlawful employment

practice[,]Ò concluding that Ñif the smallest portion of that ÓpracticeÔ occurred

within the limitations period, then a court should consider it as a whole.Ò

Stewart v. Jones Util. & Co ntracting Co., Inc. , 806 Fed. AppÔx 738, 741 (11th

Cir. 2020) (citing Shields v. Fort James Corp ., 305 F.3d 1280, 1281 - 82 (11th

Cir. 2002)). The Eleventh Circuit has further held that, i n order to be part of

the same unlawful employment practice claim for hostile work environment,

the portion which occurred within the limitations period must be Ñthe same

type of Ódiscriminatory intimidation, ridicule, and insultÔ which characterized

the employeeÔs untimely hostile - work environment allegations.Ò Chambless v.

Louisiana - Pacific Corp. , 481 F.3d 1345, 1350 (11th Cir. 2007)(quoting Harris

v. Forklift Sys., Inc., 510 U.S. 1, 21 (1993)).

39. Here, Ms. Wright introduced evidence that pre - dated July 31, 2018,

including: (a) issues between Ms. Wright and Mr. Youseff, a former

supervisor; (b) issues she encountered with HR upon a return from a medical

leave of absence that resulted in a change in the method the Department

issued her paycheck.; (c) the temporary delay in Mr. Davis being allowed to

donate sick leave to Ms. Wright; (d) the DepartmentÔs requests for medical

documentation and certifications; and (e) the DepartmentÔs denial of

Ms. Wrights Second Accommodation Request.

40. Although the underlying, unifying theme between these issues

described above is Ms. Wrigh tÔs declining medical condition, she has not

established that any of the pre - July 31, 2018 , events were part of a single

unlawful employment practice, or that they were part of some other, similar

type of discriminatory behavior that includes intimidation, ridicule, or insult,

that occurred after July 31, 2018.

41. The evidence Ms. Wright presented concerning issues Ms. Wright

encountered with Mr. Youseff in 2014 , established that Mr. Youseff acted

rudely and unprofessionally toward her and a co - worker. Ms. Wright did not

present evidence that Mr. YouseffÔs unprofessional behavior was based on

Ms. WrightÔs disability, or that the Department was aware of this

unprofessional behavior , until Ms. Wright requested a transfer (which the

Department granted).

42. Th e evidence Ms. Wright presented concerning her interactions with

HR Ð regarding her timesheets, overpayments, recoupments, and lapse in

insurance in 2017 Ð were not based on Ms. WrightÔs disability, but rather,

were based on a uniform and correct application o f the Manual.

43. With respect to Ms. WrightÔs contention that the Department engaged

in behavior that resulted in a temporary delay of Mr. DavisÔs donation of sick

leave to Ms. Wright, the Department introduced credible evidence that it had

a policy of d iscouraging those in supervisory or management positions from

donating sick leave to employees, to avoid the appearance of favoritism.

However, Mr. Davis was ultimately allowed to donate sick leave to

Ms. Wright. Additionally, the Department introduced ev idence that

Ms. Wright received and used over 1,000 hours of donated sick leave over the

course of her employment. With respect to this issue, Ms. Wright failed to

establish that she was subject to unwelcome harassment based on her

disability that was suf ficiently severe or pervasive to alter the conditions of

her employment or to create an abusive working environment.

44. With respect to Ms. WrightÔs contention that the DepartmentÔs request

for medical documentation and certifications constituted harassme nt or a

hostile work environment, the Department introduced credible evidence that

it requires employees who utilize donated sick leave t o request an

accommodation to establish a need through providing medical

documentation. While the DepartmentÔs requests for such documentation

were a result of Ms. WrightÔs medical condition, she failed to establish that

they constituted unwelcome harassment, or that they were sufficiently severe

or pervasive to alter the conditions of her employment or to create an abusiv e

working environment.

45. With respect to Ms. WrightÔs contention that the DepartmentÔs denial

of her Second Accommodation Request constituted harassment or a hostile

work environment, the undersigned concludes that a denial of reasonable

accommodation is a separate, actionable claim that requires different

elements of proof, and is not cognizable as a harassment or hostile work

environment claim. See Alboniga v. Sch. Bd. of Broward Cty. , 87 F. Supp. 3d

1319, 1337 (S.D. Fla. 2015)(ÑFailure to accommodate i s an independent basis

for liability under the ADA.Ò). Accordingly, the undersigned concludes that it

cannot constitute harassment or hostile work environment.

46. The only evidence Ms. Wright presented that occurred after July 31,

2018, was her August 13, 2018, email to Mr. Huddleston, and her August 15,

2018, letter of resignation. The only timely - preserved issue for consideration,

therefore, is whether Ms. WrightÔs resignation constituted a constructive

discharge, which could then possibly Ñconnect backÒ to the untimely

allegations previously discussed, under the continuing violations doctrine.

47. A constructive discharge occurs when Ñworking conditions become so

intolerable that a reasonable person in the employeeÔs position would have

felt compelled to resign.Ò Green v. Brennan , 136 S. Ct. 1769, 1776 - 77

(2016)(quotations omitted)(citing Pa . State Police v. Suders , 542 U.S. 129,

141 - 43 (2004)).

48. Ms. Wright failed to establish that her working conditions were so

intolerable that a reasonable person wou ld have felt compelled to resign. The

record established that Ms. Wright experienced multiple, worsening medical

conditions over the course of her employment with the Department. The

Department granted her an accommodation request, allowed her to receive

o ver 1,000 hours of sick leave donations, and attempted to work with her to

overcome issues with her paycheck.

49. Ms. WrightÔs constructive discharge claim must fail for an additional

reason: she failed to give DEO an opportunity to remedy the situation. See

Webb v. Fla. Health Care Mgmt. Corp. , 804 So. 2d 422, 424 (Fla. 4th DCA

2001)(holding that Ñan employer must be given an opportunity to remedy the

complaints of any employee before an employee can prevail on a constructive

discharge claim.Ò). DEO prese nted evidence that Mr. Huddleston was

actually interested in having a meeting with Ms. Wright after the denial of

her Second Accommodation Request, and sent her an email to that a ffect

after her resignation.

50. Because Ms. Wright failed to establish const ructive discharge, and

because the remaining issues she raised occurred before July 31, 2018, and

thus more than 365 days prior to her July 31, 2019, charge of discrimination,

the undersigned concludes that Ms. WrightÔs harassment and hostile work

environm ent claims are time - barred. See § 760.11(1), Fla. Stat.; Avila v.

Childers , 212 F.Supp.3d 1182, 1188 (N.D. Fla. 2016)(holding that

discrimination claims under the FCRA must be filed within 365 days of the

alleged unlawful employment practice).

51. For simi lar reasons, the undersigned concludes that Ms. WrightÔs

claims of disability discrimination and retaliation, including the alleged

failure to provide a reasonable accommodation, must fail, as all of the events

alleged occurred more than 365 days prior to the filing of her charge with

FCHR, and are thus outside of the limitations period in section 760.11(1).

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that the Florida Commission on Huma n

Relations issue a final order dismissing Angela WrightÔs Petition for Relief.

D ONE A ND E NTERED this 19th day of January, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

Th e 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 19th day of January, 2021.

C OPIES F URNISHED :

Ta mmy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Angela Michelle Wright

4102 Gre e nsboro Highway

Quincy, Florida 32351

(eServed)

Dominique Gabrielle Young, Assistant General Counsel

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399

(eServed)

Brandon W. White, Esquire

Department of Economic Opportunity

107 East Madison Street , MSC 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.