vs.
Respondent.
) Case No. 01-3645
Pursuant to notice, this cause came on for formal proceeding and hearing. The hearing was conducted on November 15, 2001, in Milton, Florida, before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The appearances were as follows:
For Petitioners: Maldrick E. Bright, Esquire
Bright Law Office, P.A. 5189 Stewart Street
For Respondent: Heather F. Lindsay, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner has a disability (back injury) for purposes of Chapter 760, Florida Statutes, and whether her
termination was because of her race (Black) or due to excessive absenteeism and tardiness.
This cause first arose on February 3, 2000, when Stephanie Prather, the Petitioner herein, filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that the Respondent, Mold-Ex Rubber Company, had discriminated against her on the basis of race, color and disability in violation of relevant Florida and Federal law when she was terminated from her "industrial operator" position on June 4, 1999.
The Commission investigated the matter, but terminated that investigation on September 14, 2001, after receiving the Petitioner's request for a formal administrative hearing regarding her charge. The Division of Administrative Hearings and the undersigned judge assumed jurisdiction of the matter and a hearing was conducted after due notice on November 15, 2001.
During the hearing, the Petitioner testified on her own behalf and offered Petitioner's Exhibit A, which was admitted into evidence. The Respondent offered the testimony of Nick Bores, the Respondent's human resources coordinator.
Additionally, the Respondent offered five exhibits all of which were admitted into evidence.
The parties requested an extended briefing schedule which was granted and the Respondent timely filed its Proposed Recommended Order. The Petitioner did not file a Proposed Recommended Order. The Respondent's Proposed Recommended Order has been considered in the rendition of this Recommended Order.
The Petitioner first worked for Mold-Ex Rubber Company (Mold-Ex) in November 1998. Her duties were in the extrusion department where she worked bonding rubber strips together on a "hot plate machine," hanging them to dry and then transferring them to be stored in a box for shipping. Nick Bores, Human Resources Coordinator at Mold-Ex, explained that she was responsible for transferring completed, bonded rubber strips and was responsible for moving four to five strips at a time. The weight of those strips was approximately one pound per strip.
The Petitioner remained a probationary employee throughout her tenure. The probationary period for new employees at Mold-Ex is ninety days. She was never entitled to benefits and never received any because she remained on probationary status.
Several weeks after she first began employment at Mold- Ex the Petitioner was in a car accident, which was unrelated to her employment. The accident occurred on December 4, 1998.
Mr. Bores was unaware of the length of time required for her
recovery from her car accident, but in any event her initial employment with Mold-Ex ended at some point after the car accident in December 1998. She did not return to work after that accident.
In May 1999, the Petitioner submitted a doctor's note to Mr. Bores, which released her to return to work without any restrictions as of May 17, 1999. Mr. Bores was under the belief that he was under no obligation to re-hire the Petitioner because she had left her employment after the accident while still a probationary employee. Nevertheless, he re-hired her as a probationary employee in May 1999, and was given to understand by the Petitioner that, as of May 17, 1999, she was under no medical restrictions and could return to regular duties.
Mr. Bores hired Ms. Prather to work at the rate of $6.00 per hour and she averaged $960.00 per month in pay. The Petitioner maintained that she was "averaging $288.00" per month in overtime. She did not present any evidence to corroborate her testimony to demonstrate her average overtime pay or that she even earned any overtime pay. Considering her short service with Mold-Ex, which was only a month in 1998 and less than two weeks in 1999, it cannot be concluded what she would have averaged in overtime pay nor can it be concluded, because there is not credible evidence, that she actually worked overtime. In any event, she worked in a department where her job duties
including trimming the edges of square pieces of rubber with a sharp knife.
During her second week of employment in 1999, the Petitioner left work early on May 28, 1999, to see her physician. She did not return to her job, but her next scheduled day at work was May 31, 1999. She visited her doctor again on June 2, 1999, when she obtained a physician's note (Petitioner's Exhibit A) and on June 2, 1999, gave the note to Mr. Bores. The Petitioner did not present evidence of any other doctor's note regarding medical restrictions or advice.
The Petitioner had earlier submitted a note that released her to full duty as of May 17, 1999. Despite her return to health according to her doctor's note, she was unable to be at her work station on time and sometimes failed to appear for work at all. Respondent's Exhibit five reflects the Petitioner's actual "time punches" between May 17, 1999, and
May 28, 1999. This exhibit reflects a pattern of tardiness and absenteeism.
Mold-Ex has an attendance policy in force, shown by Respondent's Exhibit three. That policy requires its employees to be at their work stations ready to work at their scheduled time every day that their work is scheduled. Additionally, employees are expected not to leave their work stations early. Absences, tardiness and leaving early are not excused unless the
supervisor has approved the time off in advance. An employee cannot be excused from absence or tardiness by calling in at the start of his or her shift. Depending on the business needs of each department, a supervisor can accept as little as 24-hours advance notice of an occurrence in order for it to be excused.
The proper policy for having an excused absence or time off requires pre-approval by the employee's supervisor.
Violations of this policy can lead to termination.
Mold-Ex has terminated both white and black employees for attendance violations. Ms. Prather admitted that she was aware of the attendance policy contained in Respondent's Exhibit three and that she had received a copy of that policy. She agreed that if she was not at her work station at her scheduled time that was an "occurrence" or violation of the policy.
Ms. Prather agreed that leaving work early also was a violation of the policy. She agreed that her shift began at 7:00 a.m., and ended at 3:30 p.m., and that she was scheduled to work five and sometimes six days per week. She agreed that to be in compliance with the attendance policy she was required to clock- in at 7:00 a.m., and clock-out at 3:30 p.m., each day when she was scheduled to work. She also agreed that unless an employee contacted the company prior to the absence or tardy occurrence that the occurrence would be unexcused and a violation of the policy.
The Petitioner agreed that if she had absences or tardiness during the period that lasted from May 17, 1999 through June 4, 1999, then those occurrences would count against her under the Respondent's attendance policy. She also admitted that the company could terminate her for having too many occurrences in violation of the attendance policy.
The Petitioner's absences or instances of being tardy are depicted on Respondent's Exhibit five. She was absent on May 18, 1999; late to work on May 19, 1999 and May 20, 1999. On Saturday, May 22, 1999, she was "technically absent" because she clocked in for only one minute. The next scheduled work day was May 24, 1999, and she was absent. She was also absent on the following day, May 25, 1999. She was late to her work station the next three days of that week: May 26 - May 28, 1999. She clocked out early on May 28, 1999, and would have been scheduled to be at work on May 31, 1999, and June 1, 1999, but she failed to come to work on those days. This is a total of 13 occurrences or violations of the attendance policy, which she effectively did not dispute.
The Petitioner did not present evidence of any occurrence being excused under the policy. Mr. Bores did not recall the Petitioner calling in for advance approval regarding any of these occurrences. Ms. Prather suggested that she may have informed Mr. Bores that she would miss a few days after
May 28, 1999, but she did not testify that she informed him prior to the shifts for which she was scheduled to work. On rebuttal she claimed that she had called the receptionist on May 28, 1999, to inform the Respondent that she would be taking a few days off and would bring in a doctor's note when she could return to work. However, she admitted that she did not speak to her own supervisor about her need for time off, which was required under the policy for time off to be excused. She had no explanation for any of her other violations of the attendance policy.
She claimed that the note, Petitioner's Exhibit A, released her from work for two days. The note, however, does not reflect that any days off were advised by the physician. Rather the note merely states that "Ms. Prather has been advised to avoid repetitive overhead work, lifting over 15-20 pounds and repetitive bending." This note did not inform Mold-Ex of any necessary absences or request any excuse for missed work. The Petitioner admitted that she did not provide the note to the company until June 2, 1999, after the scheduled shifts of
May 31, 1999 and June 1, 1999. Accordingly, she did not follow the policy for obtaining excused absences. The note itself, as well as Ms. Prather's admission of her failure to follow policy, shows that her contention that the note released her from work for two days is without merit.
After reviewing Ms. Prather's time records on June 1, 1999, Mr. Bores decided on that day to terminate her because of her violations of the attendance policy. He identified at least nine violations of the attendance policy in less than two weeks. Mold-Ex has terminated employees with fewer attendance occurrences than Ms. Prather had accumulated at the time
Mr. Bores decided to terminate her. A continuing pattern of being late, even as little as two to four minutes, is sufficient for termination under the attendance policy adopted by Mold-Ex. Her poor attendance was the only reason for her termination.
Mr. Bores discussed the termination with Ms. Prather on June 2, 1999. She testified that she presented him with her doctor's note (Petitioner's Exhibit A) on June 2, 1999. Nevertheless, by June 2, 1999, Mr. Bores had already decided to terminate her for poor attendance based upon her record to that point.
Mr. Bores never considered that the Petitioner had a disability. If she had not violated the attendance policy with so many occurrences of absenteeism and tardiness he would have considered her for any available work at Mold-Ex within her doctor's restrictions.
Mr. Bores completed a termination form for the Petitioner on June 4, 1999. Because the form was not completed until June 4, 1999, which may have been the date she signed the
form, her termination was considered effective on that date, although Mr. Bores had decided to terminate her on June 1, 1999. When terminating employees for failure of their probationary period, detailed forms are not required under Mold-Ex's regularly adopted personnel policy.
The termination form that is Respondent's Exhibit four is consistent with the company policy and practice for terminating probationary employees. The company form reflects one comment describing a reason for termination: "probation." This signifies that the employee violated her probationary status and, in this case, that she failed her probationary period because of attendance violations. Failure to pass the probationary period is an issue that falls within "category 5" of the termination form.
The only work restrictions placed on the Petitioner by her physician were represented by Petitioner's Exhibit A. The Petitioner agreed that she could have performed many different jobs under those restrictions. In fact, she testified that Petitioner's Exhibit A reflects restrictions that would have prevented her from working only in a "very narrow" range of jobs. Nevertheless, after being terminated from Mold-Ex, effective June 4, 1999, the Petitioner did not obtain employment until January 26, 2000, when her doctor gave her a full release to return to work. She admitted that she did not seek other
employment during that period of time when she was without work. Additionally, she admitted that she could have obtained a full release to return to work prior to January 2000 if she had requested such from her doctor. Thus, it has not been proven that she acted to mitigate any damages caused by her loss of employment with the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).
The Petitioner maintains that she was terminated because of her race and because of an alleged disability. The Florida Civil Rights Act of 1992, Section 760.10, et. seq., Florida Statutes, prohibits certain specified unlawful employment practices and provides remedies. Thus, Section 760.10(1)(a), Florida Statutes, prohibits discharge of an individual for reasons of race or disability. 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). Federal case law is persuasive because the Florida statute is patterned after the Federal statute and will be construed in accord with the Federal statute to the extent consistent with the purpose of Florida
law. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). Federal case law interpreting the Americans With Disabilities Act, 42 U.S.C. 12101, et. seq., is also highly persuasive in disability actions in Florida. Brand v. Florida Power Corp., 633 So. 2d 504, 509-10 (Fla. 1st DCA 1994).
To make a prima facie case of disability or discrimination in Florida, or under the Americans With Disabilities Act, the Petitioner must show that she is disabled, that she is otherwise qualified for the position in question, and that she was discharged because of a disability. Brand, supra.; Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998). The Petitioner has the burden of identifying an accommodation that would allow her to perform a job with the employer. The Petitioner bears the ultimate burden of persuasion to demonstrate that such an accommodation is reasonable and that she was discriminated against because of her disability. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997). The Petitioner has not established a prima
facie case of disability discrimination because she has not satisfied those elements of proof.
A person has a disability if she has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual"; has "a record of such
an impairment";" or is "regarded as having such an impairment."
42 U.S.C. Subsection 12102(2).
Physical impairment is defined as :
Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
29 C.F.R. Subsection 1631.2(1). The Petitioner has suggested that she had a physical impairment at one time, but she has not presented any evidence that she suffers from any impairment that substantially limits one or more major life activities. Her alleged disability is a temporary weight-lifting and repetitive moving restriction from 1999 that is no longer in effect.
The Petitioner has failed to meet her burden of proving a prima facie case of disability discrimination. She did not prove that she suffers from a disability because the back injury was not of a permanent nature. Evans v. City of Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (injury was transitory and not of a continuing nature).
Additionally, the Petitioner failed to prove that her back injury substantially limited any major life activity. A major life activity is a function "such as caring for one's self, performing manual tasks, walking , seeing, hearing,
speaking, breathing, learning and working." 29 C.F.R. Subsection 1630.2(i). Concerning the major life activity of working, "substantially limits" means a "significant restriction in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities."
29 C.F.R. Subsection 1630.2(j)(3)(i). The inability to perform a single job, however, does not constitute a substantial limitation in the major life activity of working. Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994); cert denied, 519 U.S. 1152 (1995).
The Petitioner was never disabled in the major life activity of working. She admitted that even with the restrictions imposed by her doctor, she could have performed many jobs and was unable to perform only a narrow range of positions. The restrictions imposed by her doctor, did not restrict her from doing the jobs that she was already hired to do at Mold-Ex, given the description of her employment duties placed in evidence. In Bolton v. Scrivner, Inc., supra. the court for the Tenth Circuit held that the plaintiff therein was not disabled under the ADA, although work restrictions prevented him from returning to a former job, because he failed to show that his limitations restricted overall employment opportunities. The Petitioner herein did not present any
evidence that any activity, much less a major life activity, was substantially limited by the restrictions placed on her by her physician in 1999.
Additionally, the Petitioner did not prove that any "record" reflected a disability or that she was perceived as being disabled. The doctor's note reflecting a temporary weight lifting restricting cannot be a record of a disability under the above-cited authorities. Further, Mr. Bores testified that he never considered her to be disabled. In fact, when Mr. Bores made the decision to terminate her for poor attendance he was under the impression, based on Respondent's Exhibit one, that she was able to work without restrictions. He had no knowledge that she was under any restrictions from her physician because the only note he was able to rely on at the time he made the decision to terminate the Petitioner was the note from May 17, 1999, releasing the Petitioner to work without restrictions. The first time that Mr. Bores learned that the Petitioner was under any medical restriction in 1999 was on June 2, 1999, after he had already decided to terminate her for poor attendance.
Because attendance is an essential function of any job and because the Petitioner was clearly unable or unwilling to report to work, she was not a qualified individual for any position at Mold-Ex under its attendance policy. Thus, even if she could prove that she had a disability, she could not prove
the second element of her prima facie case for disability discrimination. See Wu v. Thomas, 847 F.2d 1480, 1484 (11th Cir. 1988), cert. denied, 490 U.S. 1006 (1989)(no prima facie case where the plaintiff failed to show that she was qualified for the position); Waggoner v. Olin Corporation, 169 F.3d 481,
483 (7th Cir. 1999)(attendance is essential requirement of job).
The United States Court of Appeal, 11th Circuit has held that plaintiffs are not qualified for a position from which they have been terminated because a disability preventing them from being present at work when needed. Jackson v. Veteran's
Administration, 22 F.3d 277, 279 (11th Cir. 1994). Other courts have reached that same conclusion. See Tyndall v. National Education Centers, 31 F.3d 209, 214 (4th Cir. 1994)(summary judgment affirmed because attendance problems of plaintiff demonstrated that she could not fulfill an essential function of her job and therefore she was not a qualified individual under the ADA). Even if an employee's failure to meet attendance requirements is due entirely to a disability he is "not qualified" under the ADA. See Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997).
In fact, the Petitioner's attendance issues have the legal consequence of removing from Mold-Ex any obligation to accommodate the Petitioner, if that obligation ever existed. See Waggoner v. Olin Company, supra. (employer not required to
accommodate individuals with erratic, unexplained absences from work, even when the absences are the result of a disability, because attendance at job site is a basic requirement of most jobs).
The Petitioner maintains that she should have been permitted to perform some light-duty work despite her attendance issues. It is well established that only "reasonable accommodation" of handicapped employees is required. Kelly v. Bechtel Power Corp., 633 F.Supp. 927 (S.D. Fla. 1996); Brand v. Florida Power Corp., supra. The Petitioner has not demonstrated that any reasonable accommodation existed. In Willis v. Conopco, Inc., 109 F.3d 282 (11th Cir. 1997), the court held that re-assignment may be a reasonable accommodation only if the plaintiff proves that both a position is vacant and that she is qualified for the vacant position. The Petitioner herein did not prove that any position was vacant for which she was qualified. In fact, her poor attendance suggests that she was not qualified for any job at Mold-Ex. The Petitioner testified only in a general way about light-duty jobs existing in the injection molding department without proving what job in that department she could have worked. Therefore, her argument for re-assignment must fail. Nicholson v. The Boeing Co., 176 F.3d
489 (10th Cir. 1999)(affirming summary judgment for employer because the plaintiff could not identify any specific jobs she
could perform); Salmon v. Dade County Sch. Bd, 4 F.Supp 2d 1157, 1162 (S.D. Fla. 1998)("the duty to accommodate does not require an employer to lower its performance standards, re-allocate the central job functions, create new jobs, or re-assign disabled employees to positions that are already occupied."). An individual is entitled "only to a reasonable accommodation," not an accommodation of her choice. Stewart v. Happy Herman's Cheshire Bridge, Inc., supra. Preferential treatment is not permitted even to disabled workers. Terrell v. USAir, supra.
An employer need only consider alternatives that are equal to or below the position the claimant previously held. The ADA does not require an employer to promote a disabled employee as an accommodation. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998); White v. York Int'l. Corp., 45 F.3d 357, 362 (10th Cir. 1995).
In summary, the disability claim should be dismissed.
The Petitioner was released to full duty in January 2000, and presented no evidence of any remaining restriction that would affect any major life activity. She testified that she could have obtained a full release prior to January 2000 and would have obtained that release had she received a job offer prior to January 2000. This is not indicative that she is a disabled individual. Moreover, there is no evidence that the termination decision was motivated by any alleged disability in any event.
Mr. Bores did not consider her to be disabled and testified that the only reason he terminated her was because of poor attendance.
The Race Claim
The Petitioner's Title VI race discrimination claim is governed by the three-part proof requirement established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981). The Florida courts apply these standards in a state discrimination claim under Department of Corrections v.
Chandler, 581 So. 2d 1183 (Fla. 1st DCA 1991). The Petitioner must first prove a prima facie case of discrimination and then the Respondent employer must "articulate some legitimate non- discriminatory reason" for the challenged employment action.
See McDonnell Douglas, 411 U.S. at 802. If the employer satisfies that burden, the plaintiff must then prove by preponderant evidence that the articulated reason was a mere pretext for intentional discrimination. The burden of persuasion remains with the Petitioner at all times. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). If the Petitioner does not offer sufficient evidence showing that each and every proffered reason is pretextual, then her claim must fail. See
Chapman v. A1 Transp., 229 F.3d 1012, 1024-25, 1033 (11th Cir. 2000)(affirming summary judgment for defendant where a plaintiff
was unable to "produce sufficient evidence for a reasonable fact-finder to conclude" that the defendant's reason was pretextual).
The Petitioner must prove that she is a member of a protected group, that an adverse employment action was taken against her, that someone outside of a protected group was favored over her and that she was qualified for the position in question. Walker v. Nations Bank of Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). There is no evidence that anyone outside the Petitioner's protected class was favored over her.
The only evidence of race discrimination was the Petitioner's own testimony that a white female named Lucinda, whose last name is not of record, had back problems and was accommodated with light-duty. The Petitioner failed in her burden to show that this white employee was similar to the Petitioner in all relevant respects, however. See Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997)(affirming summary judgment in disparate discipline case for former employer where plaintiff failed to demonstrate that his claimed comparators were similar in all relevant respects). The Petitioner is required to prove that Lucinda, whose last name she did not know, had similar attendance problems as the Petitioner and yet was retained in employment.
In the Holifield case, a white employee was accused of having an ill-temper, just as Holifield was, but the white employee did not have the performance issues that Holifield did. Accordingly, Holifield, in that case, could not establish a prima facie case of race discrimination based on disparate discipline.
In this case, the Petitioner did not submit any evidence to show that the white female had attendance problems similar to Ms. Prather's and yet was retained in employment. The Petitioner presented no evidence showing any violation of company policy by the purported white employee in question. The only other evidence of race discrimination the Petitioner attempted to submit was inadmissible hearsay. Parenthetically, it is noted that she mentioned that two black employees with health problems were terminated but she admitted that she did not know the reason for the termination of those individuals. She presented no admissible evidence to prove that they had disabilities, had asked for accommodations, or had been denied any accommodation. In fact, no evidence was presented at any time that White employees had been favored over Black employees. Indeed the evidence showed that Black employees with doctor- imposed restrictions have been given positions at Mold-Ex.
Assuming arguendo that the Petitioner could establish a prima facie case, Mold-Ex remains entitled to dismissal of the
Petition. Mold-Ex met its burden to articulate and go forward with evidence of a legitimate, non-discriminatory reason for terminating the Petitioner, which was violation of the attendance policy. In Grigsby v. Reynolds Metals Co., 821 F.2d
590 (11th Cir. 1987), the 11th Circuit explained that a defendant's overwhelming justification evidence may completely rebut a prima facie case: "[Plaintiff cannot] merely rest on the laurels of her prima facie case in the face of powerful justification evidence offered by the defendant." The Petitioner must present something more than conclusory allegations to show that the proffered reason for termination was a pretext for race discrimination. See Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989). The Petitioner herein relied on hearsay and on her own conclusion that a White employee was favored because of her race. The Petitioner does not even question the application of the attendance policy to her and whether it justified her termination, but even if she had claimed that she had abided by that policy, that would not be enough to establish pretext. The mere denial of a company policy violation was insufficient as long as an employer had a good faith belief that an employee had engaged in misconduct. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991). The Respondent here, at the very least, demonstrated that it had a good faith belief that the Petitioner had violated
the attendance policy by it submitting, and testifying concerning Respondent's Exhibit five in evidence.
Thus, the Petitioner has failed to present any evidence of pretext. Because the Petitioner failed to offer sufficient evidence showing that the proffered reason for her termination was pretextual, her Petition must be dismissed. "The inquiry into pretext centers upon the employer's beliefs, and not the employees own perceptions of his performance." See Holifield, 115 F.3d at 1565.
Whether an employer's decision is wise or fair or free from ambiguity is irrelevant because an employer is not required:
. . .to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory reason.
See Nix v. WLCY Radio Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1989). The testimony does not indicate that Mr.
Bores made a careless decision, but even if it did, that would not evidence pretext. An employer's good faith belief that a plaintiff's work performance was unsatisfactory is not a pretext even if the employer was incorrect. Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 (11th cir. 1982).
The Petitioner has presented no proof that her race motivated the decision by Mr. Bores to terminate her. The "three types of evidence normally used to prove pretext - (1) comparative evidence; (2) statistical evidence; and (3) direct evidence of discrimination, in the form of discriminatory statements and admissions" are completely absent here. Miles v.
M.N.C. Corp., 750 F.2d 867, 870 (11th Cir. 1985).
The Petitioner failed to carry her "ultimate burden" of showing that Mold-Ex intentionally discriminated against her. St. Mary's Honor Center. v. Hicks, supra. Moreover, even if the Petitioner established an unlawful reason for her termination, she has done nothing to rebut the legitimate reason for termination: her violation of the attendance policy. An employee who is terminated for a lawful reason and an unlawful reason is not entitled to back-pay. See 42 U.S.C. Subsection 2000e-2(m).
The Petitioner had a duty to mitigate her damages. See Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231 (1982). The ultimate question is "whether the [Petitioner] acted reasonably in attempting to gain other employment or in rejecting proffered employment." Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d cir. 1992). The Petitioner admitted that she could have performed numerous jobs and admitted that she failed to seek any employment throughout the period she was unemployed, from
June 4, 1999 through January 26, 2000. Her failure to apply for any jobs during this period cannot be construed as reasonable conduct; thus, she has no entitlement to back-pay even if she could establish her claims. Weaver v. Casa Gallardo, Inc.,
922 F.2d 1515, 1527 (11th Cir. 1991)("If . . . an employer proves that the employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially comparable employment"). Thus, the Petitioner would not be entitled to any back-pay even if she had established a claim of discrimination.
The Petitioner has simply presented no credible evidence that the Respondent terminated her because of her race or because of any purported disability.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitioner's charge of discrimination, with prejudice, in its entirety.
DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings this 4th day of March, 2002.
Maldrick E. Bright, Esquire Bright Law Office, P.A.
Heather F. Lindsay, Esquire Johnston, Barton, Proctor & Powell 1901 Sixth Avenue, North, Suite 2900
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.
