STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELYN B. COBB, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3374

) EUROPEAN MANAGEMENT SERVICES, ) INC., d/b/a BON APPETIT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on June 2, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Charles A. Sullivan, Esquire

MacFarlane, Gould, Lyons and Sullivan, P.A.

311 South Missouri Avenue Clearwater, Florida 34616

For Respondent: Charles A. Powell, IV, and

Peter W. Zinober

Zinober and McCrea, P.A.

201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.

PRELIMINARY STATEMENT

On August 11, 1992, Petitioner, Jacqueline B. Cobb, filed a charge of discrimination with the City of Clearwater Human Relations Department alleging that she had been "subjected to unlawful discrimination on the basis of 'perceived handicap'". That charge was dual-filed with the Florida Commission on Human Relations. After investigating Petitioner's charge, the City of Clearwater found insufficient evidence to substantiate the allegations of unlawful discrimination and closed the case on February 19, 1993. Petitioner thereafter requested a substantial weight review of that decision. The Florida Commission on Human Relations also concluded that there was no reasonable cause to believe that Respondent had committed unlawful employment practices within the meaning of Section 760.10, Florida Statutes. Thereafter, this matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing and this hearing ensued.

At the hearing, initially there was a threshold issue respecting the timeliness of Petitioner's petition for formal hearing.

The Florida Commission on Human Relations (Commission) issued its decision on April 23, 1993. At that time, Petitioner was advised that she had 30 days of the date of that notice to file her petition for relief. Petitioner was further instructed that failure to timely file a petition would result in the dismissal of her complaint pursuant to Rule 22T-9.006, Florida Administrative Code. Using that time frame, Petitioner's deadline was May 24, 1993. In point of fact, Petitioner did not mail her petition to the Commission until May 29, 1993, and the petition was received by the Commission on June 1, 1993. During Mid-May, Petitioner made an oral request for an extension of time to file her Petition for Relief based on the fact that when the Commission issued its Notice of Redetermination: No Cause, she did not receive the original enclosure, Petition for Relief in blank form, as was indicated in the transmittal from the Commission on April 23, 1993. Petitioner requested the blank form from the Commission and Petitioner was under the impression that an extension for filing the Petition would be noted in her file. Sharon Moultry, the Clerk of the Commission, testified that it is the Commission's standard procedure to allow an additional three days for mailing of a Petition, and that the mailing of the Petition constituted a filing pursuant to Rule 60Y-4.007, Florida

Administrative Code. Using that time frame, to be timely, Petitioner's Petition had to be filed May 26, 1993. Given the miscommunications and the circumstances surrounding the request for the extension of time, I find that Petitioner's failure to timely file her Petition for Relief on May 26, 1993, with the Commission, which was mailed three days late, was based on excusable neglect, and I will grant the additional three days to Petitioner and consider her Petition as being timely filed.

At the hearing, Petitioner testified on her behalf and presented the testimony of William Davis, Christina Delosh and Jean Hagen. Respondent presented the testimony of Sharon Moultry, Leonardo Enciso, Karl Riedl, Peter Kreuziger, Sharon Verhage, Kailie Borzoni and Petitioner.

The parties filed proposed recommended orders on or about August 5, 1994. The parties proposed recommended orders were considered in preparation of this recommended order. Respondent's proposed findings of fact are substantially adopted. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

Based on my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following relevant.

FINDINGS OF FACT

1. Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager.

   
   

2. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts.

3. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees.

   
   

4. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave.

   
   

5. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences.

   
   

6. Following foot surgery, Petitioner returned to her position as manager with the same pay.

   
   

7. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery.

   
   

8. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery.

   
   

9. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status.

   
   

10. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992.

    
    

11. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel.

    
    

12. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days.

    
    

13. Petitioner did not communicate this information to Respondent or any of its management staff.

    
    

14. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff.

15. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work.

    
    

16. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992.

    
    

17. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager.

    
    

18. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair.

    
    

19. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift.

    
    

20. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992.

    
    

21. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. The authority of the Florida Commission on Human Relations is derived from Chapter 760, Florida Statutes.

    
    

24. The Florida Commission on Human Relations has adopted federal standards for allocating the burden of proof in handicap discrimination claims. Kelley V. Bechtel Power Corporation, 633 F.Supp. 927, 935 (S.D. Fla. 1986). See also, Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991).

25. In handicap discrimination cases where the employment decision is shown to have been made for no reason other than the Petitioner's handicap, the appropriate criteria are those set forth under Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794. See, Brand v. Florida Power Corporation, 633 So.2d 504, 509 (Fla. 1st DCA 1994). However, in cases such as this, where Respondent denies that it perceived the Petitioner to be handicapped, the appropriate analysis is the McDonald Douglas - Burdine, burden shifting approach. Brand supra at 507.

    
    

26. To prevail, Petitioner must bear the burden of persuasion on the ultimate fact of discrimination. Brand, supra at 507. In discriminatory treatment cases, Petitioner has the burden to initially prove facts making out a prima facie case of discrimination. If Petitioner sustains the initial burden, Respondent must articulate a legitimate, nondiscriminatory reason for the termination or other action in order to place upon Petitioner the burden of proof that the asserted reason is pretextual. National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988). Respondent is not required to prove that it was actually motivated by the proffered reasons. It is sufficient if the Respondent's evidence raises a genuine issue of fact as to whether it discriminated against Petitioner. Biting v. Crawford and Company,

    13 F.A.L.R. 2543 (FCHR April 10, 1991). "An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (1984).

    
    

27. The prima facie case of discriminatory discharge based upon handicap is established by Petitioner by showing: (1) she is a member of the 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. Advocacy Center for Persons with Disabilities, Inc., 12 F.A.L.R. 2624, 2639 (FCHR March 26, 1990).

    
    

28. Under the Florida Human Rights Act, an individual with a handicap within the meaning of the act is one who: (1) has a physical impairment which substantially limits one or more of such persons major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment Brand supra, at 510, and also 29 U.S.C. Section 706(8)(B)).

    
    

29. Generally, a temporary back injury is not considered to be a permanent "handicap that substantially impairs one's ability to perform major life functions". Hydu v. Arab Pest Control Company, FCHR Order No. 82070 (FCHR, October 27, 1982) (weight lifting restriction following surgery is not a handicap because charging party was released to work without any restrictions.) Temporary disabilities which are not perceived by the employer to be of a permanent or long-term nature are not handicapping conditions within the meaning of the Florida Human Rights Act.

    
    

30. Here, Petitioner failed to carry its burden of showing a prima facie case based on an alleged handicap, acute lower back pain, as it is not a handicap within the meaning of the Florida Human Rights Act. Petitioner presented no testimony that she suffered a substantial impairment of any major life activity.

    
    

31. Petitioner's treating physician reported that there was no physical reason she could not perform her job as her "lower back condition had completely resolved itself". Likewise, Petitioner was released to return to work without restrictions on June 9, 1992. Therefore, Petitioner failed to establish that

she was handicapped within the meaning of the Florida Human Relations Act. Likewise, Petitioner failed to establish that she was "perceived" as handicapped by Respondent. Here the evidence clearly supports Respondent's position that Petitioner was not perceived as handicapped. Petitioner failed to maintain her burden of proof and I recommend that her petition for relief be dismissed.

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 Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap.

DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida.

JAMES E. BRADWELL

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 December, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact

Paragraph 3 adopted as modified, paragraph 2 recommended order.

Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph

5 recommended order.

Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant.

Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order.

Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary.

Paragraphs 18 and 19 rejected, conclusionary.

COPIES FURNISHED:

C. A. Sullivan, Esquire

311 S. Missouri Avenue Clearwater, FL 34616

Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A.

201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32399-1570

Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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. 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: 93-003374

Orders for Case No: 93-003374