STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA CHESSER,

Petitioner,

vs.

HALL FURNITURE COMPANY, INC., d/b/a IMPERIAL FURNITURE COMPANY,

Respondent.

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) Case No. 02-0465

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on April 30, 2002, in Panama City, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda Chesser, pro se

6802 Penny Road

Panama City, Florida 32404

For Respondent: Michael Mattimore, Esquire

Jonathan W. Oliff, Esquire Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303 STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice.

PRELIMINARY STATEMENT

Petitioner drafted a hand-written Charge of Discrimination with the Florida Commission on Human Relations (Commission) on June 6, 2001. Subsequently on June 16, 2001, Petitioner filed an Amended Charge of Discrimination. Petitioner asserted that she was discriminated against because of her disability.

On December 19, 2001, Petitioner completed an Election of Rights Form with the Commission which stated that more than 180 days had elapsed since she had filed her charge of discrimination and that she desired an administrative hearing. The Petitioner's Amended Charge of Discrimination and Election of Rights Form was filed with the Division of Administrative Hearings on February 7, 2002.

The matter was set for hearing on March 5, 2002. On February 27, 2002, Respondent requested a continuance. On March 4, 2002, the matter was continued to April 8, 2002. On April 3, 2002, Respondent again requested a continuance. This request was opposed by Petitioner. Nevertheless, the case was continued until April 30, 2002, and was heard in Panama City, Florida on that date.

Petitioner offered two exhibits of which one was admitted into evidence. Petitioner testified in her own behalf. She did not call any other witnesses. Respondent offered one document which

was admitted into evidence. Respondent presented the testimony of one witness.

A Transcript was filed on June 10, 2002. A Proposed Recommended Order was timely filed by Petitioner and was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills.

2. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001.

3. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk.

4. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad

   with numbers, in the accounts payable section of the bookkeeping office.

5. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises.

6. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter.

7. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day.

8. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the

   accounts payable clerk required excellent typing and data input skills.

9. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other.

10. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above.

    Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day.

11. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office.

12. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts

    payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50.

13. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce.

14. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period.

15. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002.

16. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift

    heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1) and 760.11(4)(b), Florida Statutes.

18. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C.

    Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is Petitioner that is asserting the affirmative and, therefore, Petitioner has the ultimate burden of proof.

19. Petitioner is a "person" within the meaning of Section 760.02(6), Florida Statutes.

20. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes.

21. 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.

    
    

22. 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. 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).

23. 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.

24. 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).

    
    

25. In order to make out a prima facie case, Petitioner must prove:

    1. that he or she is a handicapped individual under the act;

       
       

    2. that he or she is otherwise qualified for the position sought or hired;

    3. 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).

       
       

26. 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.

27. 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).

28. Petitioner was gainfully employed before she worked for Respondent and she was gainfully employed after she worked

    for Respondent. She met none of the tests set forth in paragraph 26 above. Since Petitioner failed to prove a prima

    facie case, no further legal analysis is necessary.

    
    

29. Petitioner's limitations caused Respondent to conclude that Petitioner could not perform the duties which were required by Respondent. Therefore, it was reasonable, and not discriminatory to discharge her.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination.

DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.

COPIES FURNISHED:

Linda Chesser 6802 Penny Road

Panama City, Florida 32404

Michael Mattimore, Esquire Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303-4019

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 02-000465

Orders for Case No: 02-000465