STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA I. MEYER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0069

) CONTINENTAL ELEVATOR CABS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Naples, Florida, on March 9, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Sandra I. Meyer, pro se

58 Grouse Road

Naples, Florida 33961

For Respondent: William D. Keith

Monaco, Cardillo & Keith, P.A. 3550 East Tamiami Trail Naples, Florida 33962-49992

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent fired Petitioner due to a physical handicap.

PRELIMINARY STATEMENT

By Charge of Discrimination dated February 20, 1993, Petitioner alleged that she was fired from her position as computer assistant manager on September 4, 1992, due to a heart condition.

On December 3, 1993, the Florida Commission on Human Relations issued a Determination: No Cause.

By Petition for Relief dated December 16, 1993, Petitioner alleged that Respondent lied during the investigation.

At the hearing, Petitioner called two witnesses and offered into evidence two exhibits. Respondent called three witnesses and offered into evidence six exhibits. All exhibits were admitted.

Neither party ordered a transcript. Both parties waived their right to file a proposed recommended order.

FINDINGS OF FACT

1. Respondent employed Petitioner in November, 1991. She was hired to work in bookkeeping. Her responsibilities included paying the accounts payable of Respondent, as well as ensuring that the computer data was backed up to ensure against loss in case of a computer failure.

   
   

2. Shortly after being hired, Petitioner was given a questionnaire to complete for the purpose of obtaining health insurance. On November 27, 1991, Petitioner completed the questionnaire and delivered it to her supervisor.

   
   

3. In order to induce the health insurer to provide her health insurance, Petitioner repeatedly lied on the application. She falsely indicated that she did not suffer from high blood pressure although she did. She falsely indicated that she was not on any medication although she was on medication for high blood pressure. She falsely indicated that she had never had any operations when, four years earlier, she had had polyps removed from her colon and had had an abdominal aortic aneurysm repaired surgically.

   
   

4. When first employed, Petitioner was trained to perform tasks assigned to her. She received training concerning the payment of accounts payable, filing of paid and unpaid invoices, and daily backup of the computer data.

   
   

5. Despite receiving adequate training, Petitioner inexplicably failed to perform these assignments. Even though adequate funds were available, Petitioner failed to pay such routine payables as the lender on a truck loan and a good, longstanding supplier. She misfiled invoices sent to Respondent. Sometimes, she placed them in a desk drawer or a computer manual. She ignored her orders to backup computer data daily and instead did it at most on a weekly basis, and even then she did it incorrectly.

   
   

6. By August 1992, Petitioner's supervisor was beginning to realize that Petitioner was the source of the problems in accounts payable. On August 18, Petitioner's supervisor confronted her with the problems. At about this time, Respondent's computer went down, and Respondent learned that the backups had not been done.

   
   

7. In late August, Petitioner suffered a serious heart attack and had to be hospitalized for a week. On Friday, September 4, Petitioner stopped by the office on the way home from the hospital. Her supervisor implied that, when the time was right, they needed to talk about Petitioner's work performance. Petitioner asked if she was being fired and, after getting no assurances, verbally abused her supervisor and threatened to sue Respondent.

   
   

8. After Petitioner left the office, the supervisor decided to fire her. When Petitioner returned to the office for her personal belongings four days later, she confronted Respondent's president in the office lobby, shouting "fuck you" and calling him an "asshole."

   
   

9. Respondent fired Petitioner due to incompetence and insubordination. Petitioner's termination had nothing to do with the physical ailments associated with her hospitalization in late August and early September 1992.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. Section 760.10 provides that it is an unlawful employment practice "[t]o 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 . . . handicap. "

    
    

12. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Petitioner must establish by a preponderance of the evidence a prima facie case of discrimination based on handicap. It is unclear whether Petitioner did so. She suffered a serious heart attack. But the record does not indicate that she suffered any diminution in ability to work besides the fact of her absence of work while she was hospitalized. In any event, it is unnecessary to determine whether Petitioner has established a prima facie case of discrimination.

    
    

13. Under McDonnell Douglas, Respondent may rebut a prima facie case by providing an explanation for the termination. Here, Respondent rebutted the prima facie case by proving that Petitioner was terminated due to poor work performance and insubordination, not discrimination based on an asserted physical handicap.

    
    

14. Petitioner has failed to prove that the reason proffered by Respondent for her layoff was pretextual or, in any event, as required by St. Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993), that Respondent intentionally discriminated against her on the basis of a handicap.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

ENTERED on March 16, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on March 16, 1994.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

William D. Keith

Monaco, Cardillo & Keith, P.A. 3550 E. Tamiami Tr.

Naples, FL 33962-4999

Sandra I. Meyer, pro se

58 Grouse Rd.

Naples, FL 33961

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: 94-000069

Orders for Case No: 94-000069