STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JO-ANN DUFFY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5313

) SUNSHINE JR. STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, on December 15, 1992, in Marianna, Florida.

APPEARANCES

For Petitioner: Ms. Jo-Ann Duffy, pro se

Route One, Box 221-X Chipley, Florida 32428

For Respondent: Kelly Brewton Plante, Esquire

TAYLOR, BRION, BUKER & GREENE

225 South Adams Street Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.

PRELIMINARY STATEMENT

On January 6, 1992, the Petitioner filed a charge of discrimination against the Respondent. It was thus alleged that the Respondent had terminated the Petitioner from employment due to the Petitioner's handicap. The Florida Commission on Human Relations entered a notice of determination of "no cause" on May 4, 1992. The Petitioner thereafter filed a petition for relief requesting a redetermination concerning the charge. That agency entered a notice of redetermination of "no cause" on June 30, 1992. A petition for relief from an unlawful employment practice was filed by the Petitioner on August 5, 1992, containing substantially the same allegations. That pleading was duly referred to the Division of Administrative Hearings and the undersigned Hearing Officer, initiating a Section 120.57(1), Florida Statutes (1992), proceeding. An answer was filed to the petition denying the allegations of discrimination, pursuant to Rule 22T-9.008(5), Florida Administrative Code. The cause being at issue, a hearing was duly scheduled and conducted.

The Petitioner presented the testimony of George Susanka, as well as testifying on her own behalf. Seven (7) exhibits were offered and admitted into evidence on behalf of the Petitioner. The Respondent presented the testimony of Kathy Robertson and Keith Shipman and offered three (3) exhibits, which were admitted into evidence. Subsequent to the hearing, the parties availed themselves of the right to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The proposed findings of fact contained therein are treated in this Recommended Order and ruled upon again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida.

   
   

2. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent.

   
   

3. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter.

   
   

4. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters.

   
   

5. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury.

   
   

6. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition.

7. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka.

   
   

8. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable.

   
   

9. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not.

   
   

10. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent.

    
    

11. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner.

    
    

12. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales

    associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and

    theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992).

    
    

14. The Petitioner filed a petition for relief with the Florida Commission on Human Relations alleging that the Respondent discriminated against her on the basis of her handicap, in violation of the Florida Human Rights Act of 1977, Section 760.01, et. seq., when it terminated her employment on July 24, 1991. Section 760.10, Florida Statutes (1989), provides that it is an unlawful employment practice for an employer to discharge or to fail or refuse to hire or otherwise to discriminate against any individual because of a handicap.

    
    

15. The portions of Section 760.10, Florida Statutes, which may apply are as follows:

    
    

    760.10 Unlawful employment practices; remedies; construction.

    1. It is an unlawful employment practice for an employer:

       1. 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 employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       2. 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 individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

16. The State of Florida, in adopting Chapter 760, Florida Statutes, has adopted the legal principles and precedences established in the federal anti- discrimination laws, specifically, Title VII of the Civil Rights Act of 1964, 42

    U.S.C. Section 2000, et. seq. Therefore, when applying Chapter 760, Florida Statutes, interpretations of provisions of Title VII similar to the provisions of Chapter 760, Florida Statutes, are to be accorded great deference. See, Hargis v. School Board of Leon County, 400 So.2d 103 (Fla. 1st DCA 1981); and Pasco County School Board v. P.E.R.C., 353 So.2d 108 (Fla. 1st DCA 1979).

    
    

17. In cases where it has been alleged that an employee was discharged from employment for discriminatory reasons, judicial authorities have established that a prima facie case requires proof that (1) the employee is a member of a protected group; (2) the employee was discharged; (3) the employee

    was replaced by a person outside the protected class; and (4) the employee was qualified to do his or her job. See, Lee v. Russell County School Board of Education, 684 F.2d 769 (11th Cir. 1982); and Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

18. Once a prima facie case of discriminatory discharge is proved, the burden shifts to the employer, who must then present proof of some legitimate, nondiscriminatory reason for the discharge. The employer is only required to "produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus". Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

19. Once the employer articulates a legitimate reason for its action, the burden shifts back to the discharged employee, who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. Burdine, at 257.

    
    

20. The Act does not define "handicap". However, in interpreting it, the Florida Commission on Human Relations has chosen to give the term a meaning in accordance with common usage:

    
    

    Generally, '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.

    
    

    Green v. Mark III Industries, 12 FALR 1888 (FCHR 1990).

    
    

21. The Petitioner produced evidence that she suffers from a back injury, which would be considered a "handicap" under the foregoing definition adopted by the Commission. Consequently, the Petitioner has demonstrated that she is a member of a class protected under Chapter 760, Florida Statutes.

    
    

22. The Petitioner, who bears the initial burden of proof herein, has not established the elements of employment discrimination on the basis of a handicap as a result of the initial lateral transfer of her from the Alford store (No.

    190) to the Marianna store (No. 226) in the same job position at the same salary with the same restrictions on her duties. Although the Petitioner contends that the transfer was done in an effort to "get rid of her", the evidence supports the conclusion that the employer made this transfer due to the shortage in personnel in the Marianna store and due to the good working relationship which the Petitioner had established with the Marianna store manager, Mr. Susanka.

    
    

23. In addition, the Petitioner has not established the elements of employment discrimination on the basis of handicap as a result of the Respondent's termination of her from her job at the Marianna store. In fact, the evidence shows that the Respondent accommodated the Petitioner for her injury. The Respondent gave her a two-week leave of absence when she was injured. The Respondent allowed the Petitioner the ability to come back to her job at the Alford store and placed her on light duty, pursuant to the physician's instructions, and gave the Petitioner a stool to sit on while working. Upon transfer to the Marianna store, the light duty was continued and, again, she was allowed to sit on a stool while she worked.

    
    

24. The Petitioner failed to prove that she was replaced by a person in a non-protected class. Absolutely no evidence was presented during the formal

    hearing concerning whether the Petitioner's replacement suffered from a handicap. The Petitioner has, therefore, also failed to establish a prima facie case of discrimination based upon a handicap. Even if the Petitioner had established a prima facie case of discrimination based upon race or handicap, the weight of the evidence supports the conclusion that the Respondent had a nondiscriminatory rationale and business-related reason for discharging the Petitioner. The Petitioner was allowing patrons to leave without paying for merchandise and had a poor customer attitude. The Petitioner failed to prove that the Respondent's reasons for discharging her were pretextual.

    
    

25. In these proceedings, the Petitioner is required to prove by a preponderance of the evidence that the proffered reason for discharge was not the true reason and that a handicap was a terminating factor in the decision. On the supervisory level at which the decision was made, it appears that the proffered reason for discharge was a valid one and was the true reason for the discharge.

    
    

26. Accordingly, no discriminatory motive in the discharge decision has been demonstrated. The proffered reason for discharge was not shown to be pretextual during any phase of the decision-making process. Thus, the Petitioner did not meet her evidentiary burden to show unlawful discrimination. See, Arnold v. Burger Queen Systems, Inc., 509 So.2d 959 (Fla. 2d DCA 1987).

    
    

27. The Petitioner bears the burden of presenting a prima facie case and later rebuttal evidence demonstrating the pretextual nature of any termination reason stated by the Respondent. Texas Department of Community Affairs v. Burdine, supra. The Petitioner did not meet this burden. Thus, the Petitioner's position that her employment was terminated on the basis of her handicap is unsupported by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief.

DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313

Petitioner's Proposed Findings of Fac

A-C. Accepted.

D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence.

E-F. Accepted.

G-H. Accepted, but not in itself materially dispositive.

I-J. Accepted, but not in themselves materially dispositive.

1. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations.

2. Accepted, but not itself material.

3. Rejected, as immaterial.

4. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact.

5. Rejected, as immaterial.

6. Accepted.

7. Accepted, but not materially dispositive.

8. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive.

1. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner.

2. Accepted, but not itself materially dispositive.

Respondent's Proposed Findings of Fact

1-24. Accepted.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428

Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE

225 South Adams Street Suite 250

Tallahassee, FL 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within 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.

Docket for Case No: 92-005313

Orders for Case No: 92-005313