vs. ) CASE NO. 89-5818
Respondent. )
This matter came on for hearing in Perry, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 22, 1990. The Division of Administrative Hearings received the hearing transcript on December 21, 1990.
The Division of Administrative Hearings received respondent's post-hearing submission on December 5, 1990. Neither party submitted numbered proposed findings of fact.
For Petitioner: Doris Stephens, Pro Se For Respondent: William S. Myers, Esquire
1201 West Peachtree Street, N.W. Atlanta, Georgia 30309
Whether respondent discriminated against petitioner, either on account of her age or on account of an alleged handicap, in violation of Section 760.10 et seq., Florida Statutes (1989), in terminating her employment?
In response to petitioner's complaint that respondent discriminated against her on account of her age and a handicap, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued September 22, 1989.
Petitioner then filed a formal petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).
Petitioner Doris Stephens, a woman now approximately 56 years of age, began working for respondent Tom's Foods, Inc., on June 30, 1981, sweeping floors at its plant in Perry, Florida. After various intervening assignments, she ended up as a packer on the potato chip line.
Packers remove packages of potato chip bags from a conveyor belt and deposit them in cardboard boxes, which they form by folding. As a packer on the potato chip line, her duties included keeping a record of how many boxes she packed in the course of the shift, and cleaning up at the end of the shift.
Headquartered in Columbus, Georgia, respondent Tom's Foods, Inc., employed 15 or more people in Florida for a period in excess of 20 weeks this year and last. On March 6, 1989, respondent fired Ms. Stephens, who has arthritis, for "excessive absenteeism."
By all accounts, she was a good employee for her almost eight years with respondent, whenever she was at work. Petitioner's arthritis has not interfered in any way with her ability to perform her work when she was well enough to be at work.
Petitioner attributes the absences on account of which she was discharged to visits to the doctor in Gainesville who treated her for arthritis, to certain side effects of medicine she took for arthritis, and to visits to a doctor in Perry, on account of the side effects.
Company Policy
People who work for Tom's Foods, Inc. as packers are paid nothing when sickness keeps them away from work for periods of up to four days. Without regard to the length of their service, moreover, they are discharged if illness (among other causes) occasions too many absences. The company's written attendance policy provides:
5. Definitions:
A period of absence counts from the day an employee stops work until the day he/she returns to work. (This could include one day or three days, but would still count as one period.)
If the employee is going to be absent beyond the seventh (7th) day (eight days or more), he/she must request and be granted a Leave of Absence and must provide a doctor's release before returning to work.
The six-month period in which an employee's attendance is measured dates from the current date back six months, dropping off the oldest date and adding the newest date.
Classification of absences:
In order to define "excessive absenteeism" and deal with it in a fair and consistent manner, absences will be classified as either chargeable or non-chargeable:
Non-chargeable absences are certain specifically identified absences which will
not be charged against an employee's overall attendance record for the purpose of determining excessive absenteeism. These are absences due to:
Jury duty.
A death in the immediate family which qualifies the employee for funeral leave pay. (Absences due to other family deaths require prior approval from the plant manager.)
An on-the-job injury.
An official and formally-granted leave of absence (see Policy Statement A-204, Leave of Absence).
Chargeable absences are all other absences for any reason; these will be charged against the employe's attendance record and will be used to determine excessive absenteeism.
Excessive tardiness/early departure Because of production requirements, employees are expected to be present and at their work stations at the beginning and the end of their
shifts. Failure to comply with these requirements will be a basis for disciplinary action in accordance with the provisions of this policy.
Definition of tardiness: Any employee not present in his/her department and ready for work on his/her job scheduled starting time is considered "late for work" or tardy.
. . .
3. Excessive tardiness/early departure.
Excessive tardiness/early departure will be cause for discipline of the employee and may ultimately result in discharge.
Tardies or early departures of less than three (3) hours are non-chargeable if prior notice is given to and approval obtained from the supervisor. Prior notice for a late start should be given at the end of the employee's previous shift. Prior notice for an early departure should be given four (4) hours before the end of the shift.
Three (3) separate tardies and/or early departures will be counted as one (1) chargeable absence and will be applied in conjunction
with all other chargeable absences as outlined in Sections B and D of this policy statement.
Excessive absenteeism
Excessive absenteeism is defined as six (6) chargeable periods of absence - or a maximum
of eighteen (18) days of absence for chargeable reasons - within any six-month period. Excessive absenteeism cannot be tolerated and any employee guilty of such will be discharged under the following procedures:
A verbal warning will be issued upon the fourth (4th) period of absence within any six-month period.
A written warning will be issued upon the fifth (5th) periods of absence within any
six-month period.
Termination will occur upon the sixth (6th) period of absence within any six-month period.
Respondent's Exhibit No. 12. This version of respondent's policies has been in effect since August 1, 1987, although similar policies have obtained at all pertinent times. An absence of less than five days, although for medical reasons, counts as a chargeable period of absence, if it lasts three hours or longer. A shorter absence, even a few minutes' tardiness, counts as one-third of a period of absence.
In the event of a medical disability lasting five or more days, an employee is eligible for a formal leave of absence; and, when an employee obtains such leave, his absence is not charged against him for purposes of the absenteeism policy.
Three Minutes Late
Ms. Stephens missed work on September 26 and 27, 1988, because she was ill; she attributed her illness to arthritis medication she took. She was absent on October 17, 1988, when she went to Gainesville to see the doctor who treats her for arthritis. She was absent three days running on December 16, 17 and 18, again on account of illness she claimed her arthritis medicine caused.
On December 27, 1988, going to see a doctor, because she was ill, made her 2.5 hours late. She missed three hours' work on January 3, 1989, again on account of illness. The next day she was three minutes late to work. Because she did not obtain permission to miss work, either before she was too sick to work or before she was tardy, each incident counted as a third of a chargeable absence.
In accordance with company policy, Don Cook, the supervisor who recorded petitioner's three-minute peccadillo on January 4, 1989, spoke to her two days later. He told her she had the equivalent of four periods of absence within less than a six-month period, and that "[t]wo additional chargeable POA before March 26, 1989, will warrant termination of employment." Respondent's Exhibit No. 5.
The day Ms. Stephens returned from a two-day absence occasioned by her illness on February 13 and 14, 1989, she received a written warning that a single additional period of absence "before 3/27/89" would result in termination. Respondent's Exhibit No. 6. A final absence, this one also attributed to illness, lasted three days, March 1, 2 and 3, 1989, and resulted in her discharge. Respondent's Exhibit No. 7.
Betty Davis, who "may be in her 50s," (T.92) and who may or may not have arthritis, filled the vacancy petitioner's discharge created. Because Ms. Davis, who had been doing similar work on another shift, was "the most senior person with that job classification," (T.91) company policy gave her the choice of taking petitioner's place.
Consistent Application
In the last two years, respondent has fired a number of other employees for violating its absenteeism policy. At the time of petitioner's discharge, no employee with six periods of absence in six months' time had been retained. Subsequently, however, two employees who had been absent six times in six months were not discharged, because supervisors had neglected to give warnings required by company policy after earlier absences.
Although respondent had recently agreed to modify its absenteeism policy to accommodate an employee whose child suffers a "more than likely fatal" (T.98) illness, it was not shown that this employee had been absent six times in a six-month period.
On more than one occasion, petitioner denied having any handicap, when asked on company forms. At no time before her discharge did petitioner seek accommodation on account of her arthritis, T.84, 135.
CONCLUSIONS OF LAW
Since FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).
Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1989), see Regency Towers Owners Ass'n, Inc. v. Pettigrew, 436 So.2d 266 (1st DCA 1986) rev. den. 444 So.2d 417 (Fla. 1984), to "discharge . . . any individual . . . because of such individual's . . . age [or] handicap." Section 760.10(1)(a), Florida Statutes (1989).
Because petitioner claims intentional age discrimination, the procedures laid down in Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) are appropriately applied here. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area.
In order to make out a prima facie case under the McDonnell Douglas test, petitioner must show that she is a member of a protected group, that she was qualified for the position from which she was discharged, and that she was replaced by a person outside the protected group. Here petitioner failed to prove that she was replaced by an employee outside any protected age group. Indeed, she failed to prove that her replacement was younger than she. (The parties' posthearing evidentiary submissions, although buttressing this conclusion, have not been accepted as evidence on this point, because they were filed after the record had closed.) Petitioner did not make out even a prima facie case of age discrimination.
Handicap Claim
Petitioner also claims that she was discharged because of an alleged handicap in violation of the Florida Human Rights Act of 1977. Section 760.10, et. seq., Florida Statutes (1989). In order to show that her arthritis makes her a member of a protected class, petitioner must show that it amounts to a
"handicap" as that term is defined by the FCHR and Florida courts under the Human Rights Act. The FCHR has defined "handicap" as follows:
Generally, a handicap connotes a condition that prevents normal functioning in some way:
a person with a handicap does not enjoy, in some measure, the full and normal use of his sensory, mental, or physical faculties.
Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4705 (FCHR 1986) (quoting Fenesy v. GTE Data Services, Inc., 3 Fla. Admin. L. Rep. 1764-A, 1765-A (FCHR 1982). This definition is intended to give a "meaning in accordance with common usage," and is not the definition of the same term in the federal Rehabilitative Act. Kelley v. Bechtel Power Corp., 633 F. Supp. at 931. Harvey v. Alachua County Board of County Commissioners, 12 Fla. Admin. L. Rep.
2661, 2668 (FCHR 1990).
Ms. Stephens never identified her condition to Tom's Foods as a handicap, and no Tom's Foods officials knew that she believed she was handicapped. See Landers v. Broward County Commissioners, 12 Fla. Admin. L. Rep. 4226, 4230 (FCHR 1989) (employer's lack of knowledge of petitioner's handicap prevented petitioner from proving he was handicapped for purposes of his Human Rights Act claim).
Employers must make reasonable accommodation for known handicap conditions of their employees, see Kelley v. Bechtel Power Corp., 633 F. Supp. at 937, but the FCHR has dismissed several handicap discrimination complaints, pointing to the employees' failure to identify their conditions for their employers as handicaps (especially when they have expressly denied having handicaps on their employment applications), or their failure specifically to request an accommodation by their employers. See e.g., Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4709 (FCHR 1986); Harvey v. Alachua County Board of County Commissioners, 12 Fla. Admin. L. Rep. 2661, 2668 (FCHR 1990); Shepherd v. Redman Homes, 10 Fla. Admin. L. Rep. 1611, 1615 (FCHR 1988).
Because Florida courts and the Florida Commission on Human Relations have adopted the McDonnell Douglas standards for allocating the burden of proof in handicap discrimination cases, Kelley v. Bechtel Power Corp., 633 F. Supp. 927, 935 (S.D. Fla. 1986), petitioner must prove, by a preponderance of the evidence, that:
. . . she is a member of a protected class, (2) . . . she was qualified for the job, (3) . . . she was discharged, and (4) after discharge, the position was filled by someone outside the protected category,
Mayo v. The Advocacy Center for Persons with Disabilities, Inc., 12 Fla. Admin.
L. Rep. 2624, 2634 (FCHR 1990), in order to make out a prima facie case and require respondent to articulate a legitimate, non-discriminatory reason for her discharge.
The FCHR has consistently held, in response to complaints of handicap discrimination, that "it is not unlawful to terminate an employee when he has failed to meet bona fide requirements for the job or position." Green v. Mark III Industries, 12 Fla. Admin. L. Rep. 1888, 1894 (FCHR 1990). Petitioner is "required to show that [s]he was qualified, in the sense that [s]he 'was doing
h[er] job well enough to rule out the possibility that [s]he was fired for inadequate job performance. . . .'" Mayo 12 Fla. Admin. L. Rep. at 2635 (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1013-14 (1st Cir. 1979)).
The petitioner in Cabany v. Hollywood Memorial Hospital, 12 FALR 2020 (FCHR 1990) was fired for failing to comply with the terms of the employer's leave of absence policy. A physical disability caused absences from his job, and he was unable to show that he was physically capable of performing his job. The FCHR held:
Employers still retain their traditional rights to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism.
Cabany, 12 Fla. Admin. L. Rep. at 2027 (quoting Pericich v. Climatrol, 523 So.2d 684, 685 (Fla. App. 1988) (emphasis added). See also Green v. Mark III Industries, supra (petitioner fired because her physical handicap caused her to miss excessive amounts of work and to fall below production standards--complaint dismissed because, inter alia, petitioner could not prove that she satisfied attendance requirements of her job); Coyle v. Lindsay Newspapers, Inc., 7 Fla.
Admin. L. Rep. 5108, 5121 (FCHR 1985) (petitioner fired for remaining on leave of absence due to arthritic condition after expiring maximum leave allowed under policy--complaint dismissed because petitioner not prove he satisfied the employer's job requirements).
Here, assuming arguendo petitioner's arthritis should be seen as a handicap within the meaning of the Human Rights Act of 1977, and crediting, again arguendo, her perhaps incompetent testimony that the illnesses that kept her from work were ultimately the result of her arthritic condition, the evidence establishes nothing more than nondiscriminatory, if procrustean, application of a policy mandating regular attendance.
That the FCHR deny the petition for relief from an unlawful employment practice.
DONE and ENTERED this 31st day of December, 1990, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1990.
William S. Myers, Esquire 3800 One Atlantic Center
1201 West Peachtree Street, N.W. Atlanta, GA 30309
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
