Lenard v. A.L.P.H.A. "a Beginning" Inc., 2D06-2194.

• Citation: 945 So.2d 618
• Decision Date: 22 December 2006
• Docket Number: No. 2D06-2194.,2D06-2194.
• Parties: Cheryl LENARD, Appellant, v. A.L.P.H.A. "A BEGINNING" INC., Appellee.
• Court: Court of Appeal of Florida (US)

945 So.2d 618

Cheryl LENARD, Appellant, v. A.L.P.H.A. "A BEGINNING" INC., Appellee.

No. 2D06-2194.

District Court of Appeal of Florida, Second District.

December 22, 2006.

Phyllis J. Towzey of Phyllis J. Towzey, P.A., St. Petersburg, for Appellant.

Theresa A. Deeb of Deeb & Brainard, P.A., St. Petersburg, for Appellee.

STRINGER, Judge.

Cheryl Lenard challenges the final order of the Florida Commission on Human Relations which found that Lenard was not entitled to damages under the Florida Civil Rights Act, §§ 760.01-.11, Fla. Stat. (2005) ("FCRA"), because she was not discriminated against on the basis of a disability. We affirm because Lenard failed to prove that she had a statutorily covered disability under the FCRA.

Lenard was employed as a residential staff assistant by A.L.P.H.A. "A Beginning" Inc. (ALPHA), a residential facility for pregnant women and new mothers and their babies. As a residential staff assistant, Lenard was required to be available to assist the residents in caring for themselves and their babies in a healthy manner. She was also responsible for maintaining staff notes on the residents during her shift. In addition, on occasion, she was required to drive residents to and from medical appointments.

While Lenard was employed by ALPHA, she was injured in a nonwork-related horseback riding accident. Ultimately, she was diagnosed with two herniated discs, and she underwent surgery for this condition. The surgery did not completely resolve Lenard's complaints, and she continued to suffer pain and side effects from the injury. According to Lenard, she had difficulty sitting, standing, and walking for extended periods of time and difficulty driving. She also could not bend to lift heavy items. Lenard testified that these problems were markedly increased on the days that she had physical therapy appointments.

When Lenard was first injured, she took an extended leave from ALPHA. Upon her return to work, Lenard provided ALPHA with a discharge note from her physician. This note did not identify any restrictions on Lenard's activities. Despite this, Lenard testified that she requested that the notebooks containing the staff notes on each resident be moved to a higher shelf so she would not have to bend down to retrieve them. According to Lenard, this request was denied.

Shortly after returning to work, Lenard began using a certain chair in the staff area that she testified was most comfortable for her back. She also began using a special pillow against the back of the chair. Neither of these items was prescribed by Lenard's healthcare providers, and there was no testimony that the particular chair Lenard was using had any therapeutic benefits. Several months after Lenard returned to work, ALPHA remodeled the staff area and replaced all the chairs. The chair Lenard had been using was discarded.

During this same time, Lenard began missing shifts at work due to her continued back pain. ALPHA had a written attendance policy that required an employee to call no less than eight hours before the start of a shift if the employee was going to be absent so that ALPHA could arrange for another employee to cover the shift. ALPHA's administrative director testified that this was necessary because state regulations required ALPHA to have at least two staff members present at the facility at all times. Despite this written policy, Lenard often called less than four hours before the start of her shift to report that she would not be coming to work. After Lenard had called in late on six different occasions, ALPHA placed her on a corrective action plan. Under this plan, Lenard was required to call no less than six hours before the start of her shift if she was going to be unable to work. Despite this corrective action plan, Lenard called in late on nine different occasions in less than two months. Because of this violation of the corrective action plan, ALPHA terminated Lenard.

After being terminated, Lenard filed an "Employment Charge of Discrimination" with the Commission. In that charge, Lenard alleged that ALPHA had violated the FCRA by failing to provide her with reasonable accommodations for her disability and by terminating her based on her disability. Following an investigation, the Commission issued a determination of no cause.

Lenard subsequently filed a petition for relief with the Commission. In that petition, Lenard challenged the investigator's conclusions that she did not have a disability as defined under the FCRA, that she was not discriminated against based on her disability, and that she was terminated for legitimate, nondiscriminatory reasons. Following an evidentiary hearing, the Administrative Law Judge (ALJ) concluded, like the investigator had, that Lenard did not have a disability as defined under the FCRA, that ALPHA had not discriminated against her based on a disability, and that ALPHA had terminated Lenard for legitimate, nondiscriminatory reasons. Following public deliberations, the Commission adopted the ALJ's factual findings and denied Lenard relief. Lenard now challenges the Commission's decision in this appeal.

Florida courts construe the FCRA in conformity with the federal Americans with Disabilities Act ("ADA"). McCaw Cellular Commc'ns of Fla., Inc. v. Kwiatek, 763 So.2d 1063, 1065 (Fla. 4th DCA 1999); Greene v. Seminole Elec. Coop., Inc., 701 So.2d 646, 647 (Fla. 5th DCA 1997). To state a prima facie case of disability discrimination under either the ADA or the FCRA, a petitioner must establish that (1) he or she has a statutorily covered disability; (2) he or she is a qualified individual; and (3) he or she was discriminated against because of his or her disability. Smith v. Avatar Props., Inc., 714 So.2d 1103, 1106 (Fla. 5th DCA 1998); see also Davidson v. Iona-McGregor Fire Prot. & Rescue Dist., 674 So.2d 858, 860 (Fla. 2d DCA 1996).

Here, the crux of the issues raised in this appeal is whether Lenard is "disabled" as that term is defined by the FCRA. If Lenard is "disabled," ALPHA was required to offer her reasonable accommodations for her disability and was prohibited from terminating her because of her disability. If Lenard is not "disabled," the protections of the FCRA are not triggered. After a thorough review of the record, we agree with the Commission that Lenard did not establish that she was "disabled" under the FCRA.

As a general rule, a physical or mental impairment is not automatically a "disability" under the ADA. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565-66, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); Wimberly v. Sec. Tech. Group, Inc., 866 So.2d 146, 147 (Fla. 4th DCA 2004). Instead, to constitute a "disability" under the ADA, the impairment at issue must "substantially limit" a major life activity of the petitioner. Albertson's, 527 U.S. at 565, 119 S.Ct. 2162; Wimberly, 866 So.2d at 147. The term "substantially limits" means "[u]nable to perform a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner and duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1) (2005). In determining whether an impairment "substantially limits" a major life activity, courts should also consider the nature and severity of the impairment, the expected duration of the impairment, and the expected long-term impact of the impairment. 29 C.F.R. § 1630.2(j)(2).

"Major life activities" are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). With respect to the major life activity of working, the term "substantially limits" means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)...