Judges: J. LAWRENCE JOHNSTON
Agency: Commissions
Latest Update: Jun. 29, 1988
Summary: Prima facie case of discrimination based on handicap (epilepsy), but book- store fired Petioner. for discarding unsold magazines instead of claiming credit.
87-5176STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TIMOTHY D. WOOD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5176
) K-MART CORPORATION, d/b/a ) WALDENBOOKS, STORE 1313, )
)
Respondent. )
)
Isidore Kirshenbaum, Esquire, of Sarasota, for Petitioner. Christopher B. Kroll, Esquire, of Troy, Michigan, for Respondent.
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
RECOMMENDED ORDER
The Petition For Relief in this case charges that the Respondent, K-Mart Corporation, d/b/a Waldenbooks, Store 1313, discriminated against and terminated the Petitioner, Timothy D. Woods, on the basis of a handicap, namely Wood's epilepsy. The Respondent denies the charges.
Final hearing was held in Sarasota on March 24, 1988. The parties asked for and received until May 9, 1988, in which to file proposed recommended orders. On the Respondent's motion, the time for serving proposed recommended orders was further extended to May 24, 1988. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 87-5176.
FINDINGS OF FACT
The Respondent, K-Mart Corporation, d/b/a Waldenbooks, Store 1313 (Waldenbooks), hired the Petitioner, Timothy D. Wood, as a part-time bookseller trainee in April, 1985. Wood's initial pay was $3.35 an hour. Wood completed his training period in July or August, 1985, and became a part-time bookseller.
Wood suffers from epilepsy. On five different occasions during 1985, Wood suffered various kinds of seizures while on the job at Waldenbooks. Waldenbooks' manager, Jane Burke, reacted kindly to Wood, allowing him to take as much time as he needed to rest before returning to his work. When Wood went back to work, usually a matter of minutes later, he was able to function normally. Burke did not downgrade Wood's performance evaluations on account of the seizures and did not report the seizures to Waldenbooks because she did not view then as affecting his performance.
Burke appraised Wood's performance in accordance with Waldenbooks' personnel policies. Based on the overall "good" evaluation she gave Wood in
September, 1985, Wood got a pay increase to $3.55. However, in "Loss Prevention" Wood was rated just "marginal."
On November 4, 1985, Wood got a "Performance Discussion Record" for company policy violations involving improper processing of a credit card sale.
On November 14, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper handling of a cash sale and the inadvertent offending of a customer by inappropriately asking if the customer was retired. This time Burke warned Wood: "Further violations of any of the loss prevention policies and cash handling procedures could result in possible termination."
On November 24, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper destruction and disposal of valuable inventory (books) resulting in a monetary loss to the company.
Through March, 1986, Wood was not evaluated and received no raises or performance discussion records. Burke erroneously believed that Wood was not due for a reevaluation during this time. Actually, Waldenbooks was expecting a reevaluation for the period September 1 to December 1, 1985, and December 1, 1985, to March 1, 1986. Burke was notified of her error by April 2, 1986.
Meanwhile, on Sunday, March 23, 1986, a day Wood was scheduled to work, Wood had double grand mal seizures and, in the course of the seizures, severely bit his tongue. Wood was unable to talk, much less work. Wood's mother notified Burke by telephone and advised her also that Wood would be seeing his doctor the next day. The doctor advised Wood not to work for a few days. Wood followed the doctor's advice, and his mother again called to notify Burke. Wood returned to work on Thursday, March 27, 1986. Because Wood was a part-time employee who did not get sick leave, Burke had no need to and did not report on or explain Wood's absences to Waldenbooks.
On April 2, 1986, Burke completed two belated performance appraisals on Wood. Both rated Wood "good" overall, and Burke recommended Wood for pay raises to $3.66 an hour effective December 1, 1985, and to $3.77 an hour effective March 1, 1986. However, in light of the three performance discussion records Wood got in November, 1985, the performance appraisal for the period from September 1 to December 1, 1985, again rated Wood "marginal" in Loss Prevention and noted that, during the appraisal period, Wood was "on probation for violation of Loss Prevention policies." Wood commented on the appraisal: "I totally agree about the concenous [sic] of this performance appraisal." The performance appraisal for the period from December 1, 1985, to March 1, 1986, noted improvement and rated Wood "good" in the area of Loss Prevention.
On April 22, 1986, Burke's assistant manager called Burke at home to tell her that $200 worth of magazines to be returned to a distributor for credit were missing. 1/ Burke went to the store and called each of the three employees on duty, one of whom was Wood, individually to the office at the back of the store to ask them whether they had thrown the magazines away. The first two denied it. Burke then confronted Wood with the situation and asked Wood if he threw away the magazines. Wood answered, "yes, I believe I did." Burke sent Wood back up front to work and consulted with some of her superiors. A short time later, Burke again called Wood back and notified him that he was being terminated because he had caused the loss of magazine credit and had "repeatedly violated loss prevention policies [the November, 1985, performance discussion
records] resulting in loss to the company [the loss of magazine credit]." Burke told Wood she was sorry she had to terminate him but that she had the support of her superiors.
It was not proved that Burke and Waldenbooks discriminated against Wood or terminated him on the basis of his epilepsy. For unexplained reasons, Waldenbooks did not produce the "Loss Prevention Hotline" memo which Burke testified she sent to the company to report the $200 credit loss either before or at final hearing (although she testified that a copy probably was in her office at the local store.) Nor was it explained why Waldenbooks did not produce the "return list" which Burke testified was the source of her information that the $200 worth of magazines were missing. (Burke testified that she had not retained a copy of the "return list" but that a copy might be in Waldenbooks' headquarters.) These two documents would have helped to refute Wood's argument that the loss of valuable magazines was a fabrication and pretext for his termination, and Waldenbooks' failure to produce them or explain its failure to produce them raises suspicions. But, in the end, Wood's case turns on the comparative credibility and reliability of his (and, to some extent, his parents') testimony versus Burke's testimony. Based on careful consideration of the testimony and demeanor of all of the witnesses under questioning, Burke's testimony is found to be the more credible and reliable despite Waldenbooks' failure to produce, or explain the failure to produce, the "Loss Prevention Hotline" memo and the "return list." It is found that Wood did discard magazines that would have entitled Waldenbooks to a credit on their return and that Waldenbooks, through Burke, terminated Wood based on this and other company loss prevention policy violations.
CONCLUSIONS OF LAW
Section 760.10(1)(a), Florida Statutes (1987), provides that it is an unlawful employment practice "to discharge or ... otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's ... handicap ..."
Although "handicap" is not defined by statute, epilepsy is a "handicap" under Section 760.10, Florida Statutes (1987). Kelley v. Bechtol Power Corp., 633 F. Supp. 927 (S.D. Fla. 1986).
The Petitioner did not prove his case against the Respondent. The Petitioner did prove a prima facie case. See Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). This shifted the burden to the Respondent to articulate a legitimate nondiscriminatory reason for its action. Id. The Respondent having done so, the ultimate burden of persuasion returns to the Petitioner.
It was found that the Petitioner discarded magazines worth approximately $200 resulting in loss of a credit to which the Respondent would have been entitled. 2/ The Respondent discharged Wood for throwing the magazines out and for other violations of loss prevention policies during his tenure of employment. The Respondent did not discharge or otherwise discriminate against Wood because he has epilepsy.
RECOMMENDATION
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Commission On Human Relations enter a final order dismissing the Petition For Relief filed by Timothy D. Wood.
RECOMMENDED this 29th day of June 1988 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988.
ENDNOTES
1/ It is not clear from the evidence whether $200 was the retail value of the magazines or the wholesale cost of the magazines. It is inferred that the credit to which Waldenbooks would have been entitled would have been for the wholesale cost, approximately 80% of retail value.
2/ Even if the Petitioner did not discard the magazines, the issue under Section 760.10(1)(a) is not whether the Respondent fairly discharged the Petitioner for cause but whether the Respondent discharged the Petitioner on the basis of his handicap. The two are not synonymous. Cf. Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Smith v. Flax, 618 F.2d 1062, 1067 (4th
Cir. 1984).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5176
To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact (which were not numbered but, for purposes of these rulings, are given consecutive numbers):
Petitioner's Proposed Findings Of Fact.
First sentence, accepted and incorporated; second sentence, rejected as contrary to facts found.
Rejected in that December 1, 1985, and March 1, 1986, were the effective dates of retroactive pay raises actually given in April, 1986; otherwise, accepted and incorporated.
Accepted and incorporated. But, as found, these were overall ratings; in loss prevention, food did not receive all ?good ratings.
First sentence, rejected in that these occurred after Wood's trainee or probationary period; otherwise, accepted and incorporated.
Second sentence, accepted and incorporated. Third sentence, rejected as not proven.
Rejected as contrary to facts found and as not proven.
Generally accepted and incorporated to the extent necessary (although Wood was given short periods of time to rest and recuperate on days when he had a seizure while at work).
Accepted and incorporated to the extent necessary.
8.-9. Rejected that Burke reported the absence to her superiors as contrary to facts found and as not proven.
Accepted and incorporated to the extent necessary.
Rejected in part as contrary to facts found--namely that the loss did occur (although the amount of the loss was not clear from the evidence), that Wood did lead Burke to believe he acknowledged having caused it, and that Wood did cause the loss. Otherwise, accepted and incorporated.
12. See 13.-22., below.
13. Rejected as contrary to facts found and as not proven.
14.-15. Rejected in part in that the employee's name was not "Hopplero." Otherwise, accepted but subordinate and unnecessary.
16.-17. Rejected as contrary to facts found and as not proven.
Accepted and incorporated to the extent necessary.
Rejected as contrary to facts found and as not proven.
Accepted and incorporated.
Rejected as contrary to facts found and as not proven.
First sentence, accepted and incorporated to the extent necessary; second sentence, rejected as contrary to facts found (the November 24, 1985, discussion record.)
23.-1. Rejected as contrary to facts found and as not proven. 23.-2. Accepted and incorporated.
23.-3. Accepted but subordinate and unnecessary.
23.-4. to 23.-9. Rejected as contrary to facts found and as not proven. 23.-10. Accepted and incorporated to the extent necessary.
23.-11. Rejected as contrary to facts found and as not proven. 24.-25. Rejected as not proven and as unnecessary.
Respondent's Proposed Findings Of Fact (Denominated Statements Of Fact).
First sentence, accepted and incorporated; rest, accepted but subordinate and unnecessary.
2.-3. Accepted and incorporated.
4.-18. As to 13. to 17., the appraisal was prepared in April, 1986,
retroactive to December 1, 1985, as found. As to 17., the March 1, 1986, appraisal was done in April, 1986, retroactive to March 1, 1986. Otherwise, accepted and incorporated to the extent necessary and not subordinate or argument.
Accepted and incorporated.
The retail value was not clear from the evidence, as found. (The evidence submitted for the first time as Exhibits B-1 and B-2 to the Respondent's proposed recommended order has been stricken by separate order.) Also, not proven that the "Respondent was left with no reasonable alternative." Otherwise, accepted and incorporated.
Accepted but subordinate and unnecessary.
Rejected in part only insofar as there was another conversation later. Proposed findings on the June or July, 1985, conversation, accepted but subordinate and unnecessary.
Accepted and incorporated.
COPIES FURNISHED:
Isidore Kirshenbaum, Esquire 1900 Main Street, Suite 214
Sarasota, Florida 34236
Christopher B. Kroll, Esquire K-Mart Corporation International Headquarters 3100 West Big Beaver Road Troy, Michigan 48084
Donald A. Griffin Executive Director
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Dana Baird General Counsel
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Margaret Agerton Clerk
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1570
Docket for Case No: 87-005176
Orders for Case No: 87-005176
| Issue Date |
Document |
Summary |
|
Jun. 29, 1988 |
Recommended Order
|
Prima facie case of discrimination based on handicap (epilepsy), but book- store fired Petioner. for discarding unsold magazines instead of claiming credit.
|
