vs. ) Case No. 99-1783
Respondent. )
Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on August 31, 1999, in Lakeland, Florida.
For Petitioner: Robert M. Paine, Esquire
For Respondent: Jennifer M. Monrose, Esquire
May 19, 1995, which resulted in Petitioner being disabled and, if so, did Respondent fail to provide Petitioner with reasonable accommodation for that disability?
By a Charge of Discrimination dated May 29, 1996, Petitioner alleges that on or about May 10, 1995, he sustained an on-the-job injury which resulted in Petitioner being disabled. Petitioner further alleges that Respondent denied Petitioner reasonable accommodations for that disability. Therefore, Petitioner alleges that he has been discriminated against by Respondent due to his alleged disability in violation of the Florida Civil Rights Act of 1992.
On March 25, 1999, after more than 180 days had elapsed since filing the original Charge of Discrimination, Petitioner filed a Petition For Relief with the Florida Human Relations Commission (Commission) and requested an administrative hearing.
By letter dated April 14, 1999, the Commission referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.
At the hearing, Petitioner testified on his own behalf but presented no other witness. Petitioner's Exhibit numbered 1 was admitted in evidence. Respondent presented the testimony of Mike Lester. Respondent's Exhibits numbered 1-6 were admitted in evidence.
There was no transcript of the hearing filed with the Division. At the close of the hearing, the parties requested that they be given 30 days within which to file their proposed
recommended orders. The request was granted with the understanding that any time constraint imposed under
Rule 28-106.216(1), Florida Administrative Code, was waived in accordance with Rule 28-106.216(2), Florida Administrative Code. The parties filed their proposed recommended orders under the extended time-frame.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Publix Super Markets, Inc. (Publix) is a Florida corporation operating a chain of retail grocery stores throughout the State of Florida.
Publix hired Petitioner on June 9, 1973. On March 17, 1994, Petitioner voluntarily transferred to Publix's Orlando Grocery Warehouse in Orlando, Florida. On May 13, 1995, Publix promoted Petitioner to Grocery Supervisor.
On March 15, 1995, Petitioner was arrested in connection with a domestic dispute that was highly publicized in the area, and because of this incident, Publix removed Petitioner from his supervisory position on March 24, 1995. Petitioner became a selector in the warehouse, selecting goods to be shipped to the stores. However, because of Petitioner's length of service with Publix, he could have chosen to operate the fork-lift rather than physically select goods.
The essential functions of the selector position include pulling product weighing up to 100 pounds at a rate of 250 cases per hour. A selector must be able to bend, stoop, lift, push and pull product cases, and operate a fork-lift. The essential functions of the fork-lift operator position include operating the fork-lift--a hazardous piece of moving equipment.
Petitioner did not have any condition which substantially limited any major life activity at anytime prior or at the time he became a selector.
Petitioner sustained an on-the-job injury on May 19, 1995, while working as a selector for Publix. However, Petitioner did not report this injury to Publix until May 30, 1995. The back condition caused by this injury is the only impairment which Petitioner contends to be a disability in this case.
Petitioner did not request any accommodation from Publix due to his injury on May 19, 1995.
On May 19, 1995, Petitioner requested disbursement of his retirement benefits from Publix and notified Publix that his last day of employment would be June 2, 1995.
Petitioner called in sick on May 20, 22, 23, and 26-29, 1995, claiming he was unable to work. Petitioner's regular days off were May 24-25 and June 1-2, 1995, and Petitioner did not work at Publix on those days. After his injury on May 19, 1995, Petitioner only worked on May 21 and 30, 1995.
Publix accommodated all of Petitioner's requests for time off due to his back condition.
Prior to May 30, 1995, Petitioner declined Publix's offer to report the incident as a work-related injury and Publix's offer of treatment under workers' compensation.
By letter dated May 24, 1995, Peter Petrone, M.D., North Lakeland Pain and Trauma, advised Mike Lester, Publix's Grocery Department Manager, that Petitioner's injuries prevented Petitioner from performing his job duties. Additionally,
Dr. Petrone advised Mr. Lester that Petitioner could return to work on May 30, 1995. The record is unclear as to when or if Mr. Lester received this letter.
On May 30, 1995, Petitioner reported that he now believed that the May 19, 1995, injury was work related. In accordance with Publix's established practice, a Notice of Injury Form was filed immediately and an investigation was conducted.
Petitioner acknowledged that the injury, although occurring on May 19, 1995, was not reported to Publix until May 30, 1995.
Publix offered Petitioner medical treatment, which Petitioner accepted. Petitioner was treated by the physicians at Centra Care on the day the injury was reported, May 30, 1995.
Petitioner was placed on restrictions by the physicians at Centra Care which consisted of: no lifting, pushing, or pulling over five pounds; no bending or stooping, and avoid
hazardous moving equipment. Petitioner was scheduled for a re- evaluation on June 2, 1995.
The restrictions issued by the physicians at Centra Care were given to Mr. Lester on May 30, 1995.
Due to these restrictions, Petitioner was unable to perform the essential functions of his selector position on May 30, 1995 through June 2, 1995.
Petitioner contends that he may have been able to perform receiver, inventory control, dispatch, clerical, or security positions within the warehouse. However, there was no evidence presented of any receiver, inventory control, dispatch, or clerical positions being available within the warehouse. Since all security positions are contracted to an outside agency by Publix, there are no available security positions within the warehouse.
Petitioner did not request a dispatch, receiver, inventory control, clerical, or security position.
There were no available positions which met Petitioner's work restrictions within the Orlando warehouse and, since Petitioner was to be re-evaluated by the Centra Care physicians on June 2, 1995, Mr. Lester advised Petitioner that he need not come into work on Wednesday, May 31, 1995. Petitioner's regular days off that week were Thursday and Friday,
June 1-2, 1995.
There were no positions within the Orlando warehouse which Petitioner could perform the essential functions, with or without reasonable accommodation, on May 30, 1995.
On June 2, 1995, Petitioner notified Mr. Lester that he was resigning effective June 2, 1995. Petitioner had not advised Mr. Lester of the outcome of his visit with the physicians at Centra Care on June 2, 1995.
Between May 19, 1995 and June 2, 1995, Petitioner could see, read, write, walk, drive, bathe, feed himself, dress himself, grocery shop, and perform odd jobs around the house, including light cleaning and the dishes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes. See Sections 760.11(8), Florida Statutes, allowing Petitioner to proceed in accordance with Section 760.11(8), Florida Statutes. It does not appear that Petitioner has made any claim of discriminatory demotion in his Charge of Discrimination dated May 29, 1995, due to his demotion on March 2, 1995. However, in any event, Petitioner has failed to prove that his demotion on March 2, 1995, was based on discriminatory action by Publix.
The Florida Civil Rights Act of 1992 (FCRA) is interpreted consistent with the Americans with Disabilities Act of 1990(ADA). See Greene v. Seminole Electric Cooperative, Inc.,
701 So. 2d 646, 647 (Fla. 5th DCA 1997). Accordingly, to prove a claim of disability discrimination, Petitioner must prove by a preponderance of the evidence that he was disabled. Weaver v.
Florida Power and Light, 10 F.L.W.Fed. D205 (S.D. Fla.
July 16, 1996). A "disability" is defined as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. Section 12102(2); 29 C.F.R. Section 1630.2(g)(I). A physical impairment standing alone is not necessarily a disability. See Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
"Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. Section 1630.2(g)(I). Additionally, an individual is not substantially limited in working simply because he cannot perform one particular job due to an impairment. Weaver, 10 F.L.W.Fed. at D207; See Bolton v. Scrivener, Inc., 36 F.3d 939 (10th Cir. 1994), cert. denied, 115 S.Ct. 1104 (1995). Impairment that merely interferes with ability to perform a particular job but does not significantly decrease ability to obtain other satisfactory employment is not "substantially limiting." In this case Petitioner has not established a "handicap" under the meaning of the FCRA at anytime during his employment at Publix.
Petitioner must also establish that he is a "qualified individual with a disability." Pritchard v. Southern Co. Serv.,
92 F.3d l1130, 1132(11th Cir. 1996). A qualified individual with a disability is one who can perform the essential functions of the job with or without reasonable accommodation. 42 U.S.C. Section 12111(8). The term "essential functions" means the fundamental job duties of the employment position. 29 C.F.R. Section 1630.2(n)(1). An employer has the right to determine such duties. See 42 U.S.C. Section 12111(8); 29 C.F.R. Section 1630.2(n)(3)(I), "([e]vidence of whether a particular function is essential includes. . .the employer's judgment as to which functions are essential." If an employee cannot perform an essential function of a particular job, an employer is not required to eliminate the essential function of the job to accommodate such employee. Reasonable accommodation does not mean eliminating an essential function of the job.
Further, in order to be deemed a qualified individual with a disability, Petitioner must prove that he was capable of performing the essential functions of his job, with or without reasonable accommodation, to the satisfaction of Publix. See Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 849 (4th Cir. 1988). In this case, Petitioner was not able to perform the essential functions of either the selector or fork-lift driver positions--his regular positions. Further, Petitioner has failed
to establish that there were any available positions within the warehouse that Petitioner could perform.
The FCRA does not require an employer to eliminate the essential functions of a position, nor does it require an employer to "bump" an employee from a position in order to accommodate a qualified individual with a disability. Rather, where an employee cannot be reasonably accommodated within his own position, the employee must request a reassignment by indicating a desire to remain with the company, Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 934 (7th Cir. 1995), and both the employee and employer must engage in an interactive process to determine the appropriate reasonable accommodation. See Beck v. University of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996); 29 C.F.R. Section 1630.2(o)(3). This interactive process necessarily varies from situation to situation and no rules of universal application can be articulated. See Jacques v. Clean-Up Group, Inc., 96 F.3d 506,
515 (1st Cir. 1996). The identification of open positions for which Petitioner is qualified to perform, both from the standpoint of his physical restrictions and his skills and abilities, requires longer than three days. Both parties have an obligation to proceed in a reasonably interactive manner to determine what positions Petitioner would be qualified for, with reasonable accommodations, and to identify an appropriate reassignment opportunity if any is reasonably available.
Petitioner's resignation on May 19, 1995, without having made any request for reasonable accommodation, demonstrates that any breakdown in the interactive process was caused by Petitioner's failure to deal with Publix in good faith or a timely manner.
The party who causes the breakdown in the interactive process may not do so for the purpose of inflicting liability. Baert v.
Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998). Therefore, Publix may not be held liable for Petitioner's failure to allow Publix more than three days (two of which were his days off) to provide him with a reasonable accommodation in the form of a reassignment within the company.
In order to prove a claim of disparate treatment based on disability, Petitioner must also prove that Publix was aware of his disability at the time of the alleged adverse employment action. Taylor v. Principal Financial Group, Inc. 93 F.3d 155 (5th Cir. 1996); Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); and Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995). Petitioner has failed to meet his burden in this regard.
Because Petitioner was not terminated, but voluntarily resigned, Petitioner must prove that Publix's discriminatory conduct based on disability resulted in working conditions that were so unpleasant and intolerable that a reasonable person in Petitioner's shoes would have had no choice but to feel compelled to resign. Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993).
Petitioner notified Publix's retirement office on May 19, 1995, that his last day of work would be June 2, 1995, and requested disbursement of his profit-sharing benefits. Petitioner has failed to prove a constructive discharge based on disability.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Charge of Discrimination which was filed against Respondent Publix by Petitioner Joe Armbrester, III.
DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999.
Robert M. Paine, Esquire Post Office Box 3642 Lakeland, Florida 33802
Jennifer M. Monrose, Esquire Ford and Harrison, LLP
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
