MARGIE R. ISRAEL,
vs.
Respondent.
) Case No. 01-2818
Notice was provided, and a formal hearing was held on April 25, 2002, in Marianna, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Margie R. Israel, pro se
For Respondent: John A. Unzicker, Jr., Esquire
Vernis & Bowling of Northwest Florida, P.A.
Whether Petitioner was the victim of an unlawful employment practice.
Until April 19, 1999, Petitioner was employed by Wal-Mart, Inc., at their store in Marianna, Florida. On that date her employment was terminated. On June 4, 1999, and on June 27, 1999, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR), asserting that she was wrongfully terminated by Respondent because of her race, black, and because of her disability. She alleged that her disability was severe depression.
On June 7, 2001, FCHR filed determinations of "no cause" in both of the cases. On July 10, 2001, Petitioner filed a Petition for Relief alleging only discrimination due to disability. The Petition for Relief was transmitted to the Division of Administrative Hearings (DOAH) and filed on July 17, 2001. The case was set for hearing on September 20, 2001, in Marianna, Florida.
Pursuant to Respondent's request, the hearing was continued until January 28, 2002. The hearing commenced as re-scheduled. However, immediately subsequent to the completion of Petitioner's case, she became ill and was evacuated to a local hospital. The hearing was continued until April 25, 2002, and was concluded on that day.
At the hearing Petitioner presented the testimony of one witness and testified in her own behalf. She also called a
rebuttal witness. Petitioner offered six exhibits. Two were admitted. Respondent presented the testimony of three witnesses and offered five exhibits which were admitted. Respondent's Exhibit Five included an exit interview which had previously been admitted as Respondent's Exhibit Three.
A Transcript was filed on June 3, 2002. Respondent submitted a Proposed Recommended Order which was considered in the preparation of the Recommended Order. Petitioner did not file a proposed recommended order.
Petitioner is a black woman who was employed by Wal- Mart, Inc., at its Marianna, Florida store, as a cashier, from May 29, 1995, until her termination on April 19, 1999. The Marianna store is a "Super Wal-Mart."
Respondent is a large retail establishment subject to the "Florida Civil Rights Act of 1992," as contemplated by Section 760.02(7), Florida Statutes.
Prior to being employed by Respondent, Petitioner experienced mental depression and mood swings. She had anxiety attacks, including agoraphobia. Once she resided in her bedroom without exiting for nine months. Eventually, she became well enough to hold a job with Respondent.
During the time she worked for Respondent she was also employed by a nearby service station.
Ms. Jeannie Garrett, a black woman called as a witness by Petitioner, related an incident where she believed she was mistreated in a conflict involving whether a mop was or was not placed in a sink. She also was involved in a disturbance involving a customer in the restaurant portion of the store. She was admonished by the person in charge of the restaurant. Ms. Garrett was transferred to a cashier position and quit as a result. Ms. Garrett testified that, "It wasn't about race. It was because she didn't like me." Neither Ms. Garrett nor Petitioner presented any evidence that Respondent was prejudiced against anyone because of race.
The evidence of record indicating that Petitioner was disabled consisted solely of her testimony that she had emotional problems, and a doctor's note dated August 26, 1998, entitled "For Margie Israel," which stated, "(undecipherable) needs one week off due to severe anxiety depression."
Petitioner presented testimony regarding a number of incidences which she believed proved she was mistreated.
In a question involving a determination of the correct amount of change, William Michael Gilmore (Mr. Gilmore), the store manager, talked harshly to her.
Jan K. Peterson, in Petitioner's opinion, wanted to dominate Petitioner, resented Petitioner, talked harshly to Petitioner's husband, and "sassed" Petitioner's husband.
Petitioner bought numerous items in the store and some of the cashiers did not want to check her out because she used coupons and determining the value of the coupons was too complicated for them.
On one occasion Petitioner tried to use a coupon and a cashier named Rose instigated an argument about the matter. Petitioner believed Rose had a vendetta against her. The disagreement became loud and the Customer Service Manager (CSM) got involved. Francis Baker was the shift manager on duty and Petitioner tried to talk to him about the incident but he walked off. This hurt Petitioner's feelings.
On one occasion a man attempted to utilize a discount card at another cashier's post and Petitioner intervened and informed the cashier that the man was separated from his wife, an employee of Respondent, and therefore was not eligible to use his discount card. The husband became angry and called her a "bitch."
On another occasion the midnight cashier refused to check out Petitioner who had attempted to use a "comp ad." A "comp ad," is utilized in a situation where a customer produces an advertisement from a competitor which demonstrates that the competitor offers an identical product at a lower price. In such a situation, Respondent will sell the product at the competitor's price. Petitioner complained about this which
attracted the attention of the night manager. This resulted in a disputatious event which disturbed the tranquility of the
store.
Petitioner wanted to be a backup CSM but was not
installed as such. There is no actual position of "back-up CSM." It is simply a temporary working title.
Petitioner never told Respondent's manager,
Mr. Gilmore, or anyone else in authority, that she had a mental disability, although she once told Mr. Gilmore that she was suffering from depression. Petitioner never requested an accommodation. Mr. Gilmore was aware that Petitioner was afflicted with diabetes and made every accommodation for that condition, including giving her "breaks" and allowing her to have juice and water at her work station. This was accomplished even though Petitioner never provided Respondent with information from a physician indicating that she had diabetes.
There was no record in her personnel file indicating that Petitioner was afflicted with diabetes or any other disorder.
Petitioner agreed that during the time she worked for Respondent the drugs she was ingesting, designed to combat depression, controlled her problem. Petitioner affirmed that she was not limited in any major life activity as a result of her depression. Moreover, the record reveals that during the
period prior to her termination she successfully worked at two different jobs.
Jan K. Peterson is experienced in the retail trade.
She was a supervisor of cashiers and CSM supervisor. She supervised Petitioner and observed that Petitioner was often late. Ms. Peterson tried to establish new hours for Petitioner for the convenience of Petitioner but Petitioner continued to be tardy nevertheless. She observed Petitioner clock in and thereafter visit with other associates rather than report to her work station.
Ms. Peterson observed that Petitioner was disrespectful to the CSM's. On one occasion, Petitioner threatened to "get" her in the parking lot. Ms. Peterson concluded this communication was a threat of physical harm. Even though Ms. Peterson was often Petitioner's supervisor, Petitioner generally refused to speak to her.
Petitioner indicated that she desired to be promoted to CSM. Ms. Peterson tried to train her so that her hopes could be realized. Ms. Peterson put Petitioner on the service desk to expand her vocational horizons. However, no openings for CSM occurred subsequent to Petitioner requesting the promotion and her eventual termination.
Respondent demonstrated its caring attitude toward its personnel by providing a program called Resources for Living.
This is a program for the benefit of employees although residual benefit is gleaned by Respondent. The program is designed to provide help to those who experience stress, or mental problems, alcoholism, or other maladies. The availability of this program was widely advertised in the store and Petitioner was aware of its availability. Petitioner never took advantage of this program.
Brenda Garrett has worked at Wal-Mart for six and one half years and worked as a manager in another retail store before being employed by Wal-Mart. She is also a certified nursing assistant. Ms. Garrett observed Petitioner reporting to work late on numerous occasions. She was never informed by Petitioner that Petitioner believed she was mentally disabled. Ms. Garrett did, however, know that Petitioner was diabetic.
During April 1997, Mr. Gilmore became manager of the Marianna Super Wal-Mart. Upon assuming his duties he reviewed employee work histories. Petitioner's record attracted his attention because it revealed entries involving insubordination, dress code violations, and tardiness.
Mr. Gilmore attempted to counsel Petitioner in an effort to make her a better employee. Petitioner would not talk to him upon his initial attempt. Eventually she consented to talk to him and told him she wanted to be a CSM. Mr. Gilmore
stated that if she improved her performance in her current position she could possibly be a CSM.
Mr. Gilmore observed that Petitioner was capable of accomplishing her assigned duties. On one occasion Petitioner informed him that she was depressed. Mr. Gilmore asked her for documentation with regard to her depression but she never provided it. He did ensure that she was provided juice to ameliorate problems caused by her diabetes.
Petitioner never asserted to Mr. Gilmore that she was disabled in any way and he observed no disability.
Petitioner was the recipient of "coaching" forms.
Some were entitled "Coaching for Improvement" forms. These forms are used to record a disciplinary breach and the corrective action taken. They cover the period May 7, 1997 through May 17, 1999.
The coaching forms revealed that Petitioner was counseled for being short in her cash drawer, tardiness (twice), failing to make correct change, insubordination, shopping on duty, and causing a disturbance in the presence of customers on two occasions.
Petitioner, during the time she worked at Respondent's store, was recorded as being late to work at least 38 times.
Mr. Gilmore fired Petitioner because of her bad behavior, tardiness, absenteeism, and insubordination. He did
not fire her because he did not believe she had a disability. He indicated a willingness to rehire her at some future date.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.
Petitioner is a "person" within the meaning of Section 760.02(6), Florida Statutes.
Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes.
The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended (the Act).
42 USC Section 2000e, et seq.
The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race or handicap, inter alia. Section 760.10(1)(a), Florida Statutes. The FCHR and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that
federal anti-discrimination law should be used as a guide when construing provisions of the Act. See Brand v. Florida Power
Corp. 633 So. 2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).
The Act incorporates the Americans with Disabilities Act of 1990 (ADA), Title 42 U.S.C. Section 12101, and for the reasons stated above, the Florida law must be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation.
Petitioner has the burden of presenting evidence sufficient to establish that her handicap was the determining factor in the employment decision made to discharge her. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Pena v. Brattleboro Retreat, 702 F.2d 812 (10th Cir. 1978). In other words, Petitioner must prove that what motivated Respondent to discharge her was her physical or mental condition, or Respondent's perception of her physical or mental condition.
In this case, grounded in discrimination due to alleged handicap,
. . . 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 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 its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated 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 or her ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).
In order to make out a prima facie case, Petitioner must prove:
that he or she is a handicapped individual under the act;
that he or she is otherwise qualified for the position sought or hired;
that he or she was excluded from the position sought solely by reason of his or her handicap. Brand v. Florida Power
Corporation, 633 So.2d 504 at 510 (Fla. 1st
DCA 1994).
Notwithstanding the fact that Petitioner failed to present a prima facie case because she failed to prove she was disabled, Respondent presented a legitimate, non-discriminatory reason for firing Petitioner, namely that Petitioner was consistently tardy and often insubordinate. Moreover, on two occasions she became argumentative with her co-workers in the presence of customers. She was often counseled but failed to ameliorate her unacceptable behavior. Petitioner did not present any evidence demonstrating that the reasons for her termination were pretextual.
Petitioner's mere belief, speculation, or conclusory accusation that her termination was racially motivated is not evidence and will not create an inference of discrimination. Coutu v. Martin County Board of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995).
Under the Act and the federal 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). The evidence of record failed to demonstrate proof of any of the above stated requirements.
Petitioner, at all times relevant to this action, failed to prove that she suffered from a disability, and that she is a handicapped person within the meaning of the Act or the ADA. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) and Murphy v. United Parcel Service, 119 S. Ct. 2133 (1999).
Even if she was handicapped, or was suffering a disability during times pertinent, the knowledge of Petitioner's mental problems may not be imputed to Respondent, and Respondent is not liable for failing to make any attempt to accommodate employee's condition, absent any notice from employee of what might be a reasonable accommodation. Rogers v. CH2M Hill, Inc., 18 F. Supp. 2d 1328 (M.D. Ala. 1998).
That a final order be entered dismissing the Petition.
DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2002.
Margie R. Israel 2940 Carver Lane
John A. Unzicker, Jr., Esquire
Vernis & Bowling of Northwest Florida, P.A. 635 West Garden Street
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
