vs. ) Case No. 00-1792
Respondent. )
A formal hearing was held before the Division of Administrative Hearings by Diane Cleavinger, Administrative Law Judge, on September 13, 2000, in Tallahassee, Florida.
For Respondent: Compass Retail, Inc.
Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). A determination
of no cause was found by FCHR. Afterwards, Petitioner timely filed a Petition for Relief. Thereafter, this matter was transmitted to the Division of Administrative Hearings for hearing.
On June 7, 2000, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing.
The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief.
Neither Respondent nor its representative appeared at the place set for the formal hearing on the date and time specified in the Notice of Hearing. Petitioner was present at the hearing. Respondent did not request a continuance of the formal hearing or notify the undersigned that it or its representative would not be able to appear at the formal hearing. After waiting 15 minutes for Respondent to appear, the hearing was commenced.
At the hearing, Petitioner testified in his own behalf and introduced two exhibits into evidence.
After the hearing, Petitioner filed a Proposed Recommended Order on September 20, 2000. Respondent did not file a proposed recommended order.
Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida.
As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall.
Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well.
Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap.
Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996.
Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did
not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain.
Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks.
However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor.
Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work.
Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked.
On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the
mall store owner. The manager continued to follow Petitioner around the mall while he worked.
Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more.
On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation.
Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation.
Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the
administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext.
Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community
College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter of, and the parties to this proceeding. Subsections 120.569 and 120.57(1), Florida Statutes.
Petitioner contends that he was unlawfully discharged by Respondent because it discriminated against him due to his handicap. Petitioner relies on the Florida Civil Rights Act of 1992, Section 760.10, et seq., Florida Statutes (1994). The
Civil Rights Act prohibits certain specified unlawful employment practices and provides remedies for such violations.
That statute provides, in pertinent part, as follows:
760.01 PURPOSES, CONSTRUCTION; TITLE
* * *
The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.
* * *
760.10 Unlawful employment practices.-
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.
* * *
Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, . . . to:
Take or fail to take any action on the basis . . . handicap . . . in those certain instances in which . . . handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
The Respondent, Compass Retail, Inc., is an employer within the definition of the Florida Human Rights Act of 1987 ("the Act"), as amended. Sections 760.01-760.10, Florida Statutes (1987).
The Florida Civil Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991).
In Department of Corrections v. Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims
under the Florida Civil Rights Act. In that case, the court noted as follows:
Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. (Citations omitted) Id. at 1831 n.2.
Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:
The United States Supreme Court set forth in procedure essential for establishing such claims in McDonnell Douglas Corp v. Green, 41 U.S. 792 (3 S. Ct. 1817, 36 L.Ed. 2d 668
(1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L.Ed 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear,
reasonably specific, and worthy of credence. Because of the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. (Citations omitted)
In order for Petitioner to prevail in a disparate treatment case and obtain the relief he seeks, Petitioner must establish that Respondent's employment decision was based on a protected status, i.e., Petitioner's handicap. In this case, Petitioner has the burden of presenting evidence sufficient to establish that his handicap (permanent back injury) was a determining factor in the employment decision made to discharge him. See U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 715 (1983); Penna v. Brattleboro Retreat, 702 F.2d 812
(10th Cir. 1978). In other words, Petitioner must prove that what motivated Respondent to discharge him was his disability or Respondent's perception of his disability.
The Florida Commission on Human Relations has adopted federal standards for allocating the burden of proof in handicap discrimination claims. See e.g., Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799 (February 23, 1983). Accordingly, Petitioner must prove:
That [he] is a handicapped person within the meaning of the Florida Civil Rights Act;
That [he] is otherwise qualified for the position in question; and
That [he] was discharged from his position solely by reason of his handicap. Brand v. Florida Power Corporation, 633 So. 2d 504 at 510 (Fla. 1st DCA 1994). See also
29 U.S.C. Section 794.
Under the Florida Civil Rights Act and the federal Americans with Disabilities Act (ADA), a person is considered to have a disability if he or she: (1) has a physical or mental impairment which substantially limits one or more of major life activities; (2) has a record of such impairment; and (3) is regarded as having such impairment. Gordon v. E.L. Hamm and Associates, 100 F.3d 1029, 1032 (11th Cir. 1996).
Petitioner, at all times relevant to this action, has established that he suffered from a disability, and that he is a handicapped person within the meaning of the Florida Civil Rights Act or the ADA.
Petitioner has also met his burden of proving that he is qualified to perform the essential functions of his position as long as his handicap was accommodated with light duty work.
Such light duty work was available and was performed by Petitioner.
A Notice of Assignment and Order was issued giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice.
On June 7, 2000 a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 13, 2000. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings.
Even though Respondent received adequate notice of the hearing in this matter, Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. Petitioner was present at the hearing. Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for
Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing.1
Petitioner has established a prima facie case of discrimination based on his disability, given the treatment Petitioner received after his injury and his return to work.
Once Petitioner successfully presents a prima facie case, it is incumbent upon Respondent's employer to rebut Petitioner's prima facie case by articulating legitimate, non- discriminatory reasons for not employing Petitioner. Perryman,
698 F.2d at 1142. No such rebuttal evidence was presented and the reason given by Petitioner for his discharge appears pretextual. Petitioner is therefore entitled to relief from Respondent's unlawful employment practice.
In this case, Petitioner was employed approximately 55 weeks after being denied employment with Compass Retail, Inc. Petitioner's employment benefits at his new job were better than what he would have received had he been employed by Compass Retail, Inc. Therefore, Petitioner is currently not interested in receiving the Compass Retail, Inc., position. Given these facts, reinstatement to his custodial job at Compass would not
be an appropriate remedy. However, back-pay for the 55-week interim period Petitioner was without employment of $11,770.00 is appropriate.
final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00.
Tallahassee, Leon County, Florida.
1/ It should be noted, that formal hearings conducted under Section 120.57(1), Florida Statutes, are de novo hearings and
each party is required to establish its case with appropriate evidence at the scheduled formal hearing.
Vice President Human Resources Compass Retail, Inc.
Dana A. Baird, General Counsel Florida Commission on Human Relations
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.
