ALTHEA M. LEWIS, )
v. ) CASE NO. 93-3996
Respondent. )
Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Diane Cleavinger, on May 4 and 5, and August 19, 1994, in Tallahassee, Florida.
For Petitioner: Marie A. Mattox, Attorney at Law
Department of Management Services Office of the General Counsel Suite 312, Knight Building
Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
On March 29, 1993, Petitioner filed a charge of discrimination claiming that she was forced to retire because of her sex and handicap discrimination. The Commission investigated the claims which resulted in the Executive Director issuing a "Notice of Determination: No Cause." Petitioner filed a Petition for Relief which was transferred to the Division of Administrative Hearings (DOAH) for an evidentiary hearing. Prior to the hearing Respondent submitted a Motion in Limine which was denied and a Motion for Costs and Attorneys' Fees which is pending.
At the hearing, Petitioner testified in her own behalf, offered the live testimony of seven witnesses and offered 47 exhibits into evidence. Respondent presented testimony of five witnesses and offered 20 exhibits into evidence.
After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on October 17, 1994. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.
Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993.
Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker.
Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline:
Oral reprimand for excessive absenteeism, on September 20, 1982.
Written reprimand for excessive absenteeism; on September 15, 1983; and
Suspension for three workdays for the third
offense of excessive absenteeism on September 5, 1984.
Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo.
Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued.
Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions.
DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid.
Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems.
Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted.
Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol.
Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting.
Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered.
At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work.
Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher.
Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress.
In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending.
Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer.
During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991.
Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness.
After the suspension was served in January, 1993, Ms. Lewis was tardy
15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness.
Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness.
Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work.
At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap.
In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond.
Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day.
After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification.
Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening.
Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building.
The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner.
A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule.
Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance.
The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work.
Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors.
During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 760.10, Florida Statutes, provides in relevant part:
It is an unlawful employment practice for an employer:
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.
The Act is patterned after Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000E-2, and federal case law dealing with Title VII is applicable. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991).
The Petitioner has the burden of proving a prima facie case of sex or handicap discrimination in violation of the Act. To establish such a case, Petitioner must show:
. . . actions taken by the employer from which
one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act."
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978); see also,
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A prima facia case requires proof by a preponderance of evidence that an employee was a member of a protected class, (sex or handicap) was qualified for his or her position, was discharged or constructively discharged, and the job was given to or assumed by a person outside the protected group. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 450 U.S. 248, 254 (1981).
Once the Plaintiff establishes a prima facia case, a presumption that the employer unlawfully discriminated against the employee is created. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
The Respondent may rebut the Petitioner's initial showing by clearly articulating a legitimate, nondiscriminatory reason for its treatment of the Petitioner.
[T]he employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this immediate burden the employer need only produce admissible evidence which would allow the trier
of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The Respondent's burden is one of production. Respondent does not have the burden of persuasion or of proving the factual basis for its explanation. See, McWilliams v. Escambia County School Bd., 658 F.2d, 326, 330-331 (Fla. 5th Cir. 1981).
The ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the plaintiff. St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine, 450 U.S. at 253. Therefore, once Respondent successfully articulates a reason for its employment action, the Petitioner must prove that the reason offered by the Respondent was merely a pretext to hide a discriminatory motive and that the Respondent intentionally discriminated against her because of her sex or handicap. McDonnell Douglas Corp. v. Green, supra, Texas Dept. of Community Affairs v. Burdine, supra, Furnco Construction Corp. v. Waters, supra; St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine, supra. A handicap is defined by Section 760.22(5), Florida Statutes, as follows:
(a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment; or
In this case, Petitioner has failed to present a prima facie case because she failed to demonstrate that she was handicapped or was perceived to have a handicap or the person who replaced her was not a member of a protected class. Moreover, DMS articulated legitimate, nondiscriminatory reasons for its discipline of Ms. Lewis, and Ms. Lewis has failed to prove that these reasons were a mere pretext to cover up sex or handicap discrimination which forced her to retire. Therefore, the petition for relief should be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,
RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed.
DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1994.
APPENDIX TO DOAH CASE NO. 94-3996
The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material.
The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate.
The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material.
The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate.
The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence.
Ms. Sharon Moultry Clerk
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.
