ANNE E. DORFLER,
vs.
Respondent.
) Case No. 04-3196
A formal hearing was held on November 5, 2004, before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, in Melbourne, Florida. The following appearances were entered:
For Petitioner: Anne E. Dorfler, pro se
BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931
Whether Petitioner was wrongfully terminated from her position as a hostess with Respondent because of her handicap, in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on December 1, 2003. An investigation was initiated by the FCHR. However, on July 30, 2004, after a period of 180 days, Petitioner submitted a request to withdraw her complaint and file a Petition for Relief requesting an administrative hearing. Thereafter, on September 3, 2004, a Petition for Relief was received by the FCHR, and on September 9, 2004, this matter was transmitted to the Division of Administrative Hearings for hearing. Following discovery, this hearing was held on November 5, 2004.
At the hearing, Petitioner testified in her own behalf and introduced seven exhibits in evidence. Respondent offered the testimony of four witnesses and entered five exhibits in evidence. The hearing was recorded, but was not transcribed.
The parties agreed to file proposed findings of fact within ten days following the hearing. Neither Petitioner nor Respondent has filed proposed findings of fact or conclusions of law as of the date of this Recommended Order.
Petitioner, a 47-year-old female, was hired by Respondent on or about July 15, 2003, as a part-time hostess at
Respondent's restaurant in Cocoa Beach, Florida. The understanding at that time was that she would be called in to work three to four hours a day, three to four days a week, as a leased, at-will employee from SkilStaf. SkilStaf would be the employer of record for wage and payroll reporting purposes.
Respondent, BB & D of Cocoa Beach, Inc., is a franchisee of Perkins Restaurant and Bakery and is an employer under the provisions of Chapter 760, Florida Statutes (2003).
Petitioner first reported for work on July 17, 2003, and received training as a hostess/cashier by Debra Russell, associate manager, and received the same information about the job requirements, duties, and benefits given to all new hires. During her training, Petitioner was advised that in addition to seating guests and operating the cash register, a hostess would be required to bus tables when the restaurant was busy and the other staff was in need of help, although this requirement was not listed on the printed job description.
Petitioner did advise Respondent that she had a disability and that she required a reasonable accommodation in order to perform her job. She stated that several years before she had undergone back surgery as a result of an injury that was not job related and could not perform a job that required heavy lifting. Petitioner advised Russell that she could not bus tables because it would require heavy lifting. Russell asked
Petitioner to provide Respondent with a doctor's note advising them of the nature of her disability and what accommodations she required.
Petitioner continued to work as a hostess at the Perkins Restaurant through July 22, 2003, and performed the job satisfactorily. She was not asked to bus tables during this period. Petitioner was not called back to work as a hostess after July 22, 2003, and did not receive any notification that she was terminated.
Petitioner obtained a note from her physician dated July 28, 2003, which indicated that she was capable of working four to five hours a day as a hostess. This evidence is hearsay. In addition, it is not convincing that Petitioner turned in a copy of the note to management anytime after that date. She tried to talk to management about her status, but was unsuccessful.
Although Petitioner did not prove that she is a disabled person, she was perceived to be disabled by her employer.
Petitioner testified that she talked to Russell some time in early August. Petitioner claimed that Russell said that she had talked to the owner who said that he did not think Petitioner should be working as a hostess, but should get a desk job sitting down. Russell denied making such a statement. No
other evidence was offered to support this statement. Therefore, said statement is uncorroborated hearsay and unreliable, and will not be relied upon as a finding of fact.
Petitioner presented evidence that since July 2003, she has been unemployed, in spite of her making reasonable efforts to obtain suitable part-time employment.
Respondent demonstrated that Petitioner sought to have several days in a row off after working only three days. Petitioner worked six shifts total during her employment with Respondent.
Respondent needed two other part-time hostesses for the other shifts because the restaurant was open seven days a week, 24 hours a day, for a total of 21 shifts per week.
Respondent demonstrated that the summer business that year was slower than projected and never picked up. The restaurant business is labor-intensive and accounts for 30 to 40 percent of overhead costs. In order for management to control costs, it must cut back on employees.
Petitioner was involuntarily terminated because sales were underperforming projections and labor costs were being controlled by a reduction in force.
Petitioner was unable to prove that her termination was the result of her disability or perceived disability and
that Respondent's proffered reason for her termination was pretextual.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569, Subsection 120.57(1), and Chapter 760, Florida Statutes (2003).
Petitioner contends that she was unlawfully discharged by Respondent due to discrimination because of her disability. Petitioner relies on the Florida Civil Rights Act of 1992 (FCRA), Section 760.01, et seq., Florida Statutes (2003). The FCRA 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 provision 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 of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
Federal discrimination law may be used for guidance in evaluating the merits of claims arising under Chapter 760, Florida Statutes (2003). Florida courts construe disability discrimination actions under the FCRA in conformity with the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Section 12111(8), as interpreted by federal courts. Wimberly v.
Securities Technology Group, Inc., 866 So. 2d 146 (Fla. 4th DCA 2004); Tourville v. Securex, Inc., 769 So. 2d 491, 492 n. 1 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646 (Fla. 5th DCA 1997).
The general rule describing the burden of proof in discrimination cases involving circumstantial evidence was first enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 802-803 (1973). However, the charge of discrimination in McDonnell
Douglas involved an alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e through 2000e-17 (Title VII) rather than an alleged violation of the ADA. Although the Title VII criteria utilized by the court in McDonnell Douglas are, as a practical matter, inapplicable to handicap discrimination cases under the ADA, the shifting burden of proof utilized in McDonnell Douglas is applicable to handicap discrimination cases such as this proceeding. Brand v. Florida
Power Corp., 633 So. 2d 504, 509-510 (Fla. 1st DCA 1994).
The FCHR has adopted federal standards for allocating the burden of proof in handicap discrimination claims. See, e.g., Hunter v. Winn-Dixie Stores, Inc., Case No. 82-0799 (FCHR February 23, 1983). Accordingly, Petitioner must prove by a preponderance of the evidence:
That [she] is a handicapped person within the meaning of the Florida Civil Rights Act;
That [she] is otherwise qualified for the position in question; and
That [she] was discharged from her position solely by reason of her handicap.
Brand, supra.
Under the FCRA 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 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 907, 910 (11th Cir. 1996).
Petitioner has failed to prove that she suffered from a disability by other than hearsay evidence. However, she has demonstrated that she was perceived to be handicapped by her employer. Therefore, she is a handicapped person within the meaning of the FCRA or the ADA. Gordon, 100 F.3d at 910.
Petitioner has met her burden of proving that she was a qualified employee able to perform the essential functions of the position with reasonable accommodations within the meaning of 42 U.S.C. Section 12112(a). Compare Wood v. Green, 323 F.3d 1309, 1312 (11th Cir. 2003), and Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir. 1997) (each stating the cited definition of a qualified employee under the ADA) with Brand, 633 So. 2d at
510 (defining a qualified employee under Title V of the Rehabilitation Act of 1973, 29 U.S.C. Section 791, to be an individual that is qualified for a position "apart from his or her handicap.")
Respondent provided reasonable accommodations to Petitioner to allow her to produce medical evidence of her disability and did not insist that she bus tables, or otherwise lift heavy objects, until such evidence was produced. The term "reasonable accommodation" must be construed to mean an accommodation that presently, or in the immediate future, enables Petitioner to perform the essential functions of her job. Wood, 233 F.3d at 1313-1314.
However, Petitioner produced no credible evidence that any supervisor or other employee of Respondent made the decision to terminate her based upon a handicap, either perceived or real.
In addition, Respondent has articulated a legitimate, nondiscriminatory reason for the challenged employment decision, reduction in force due to slow sales.
The employer is required only to "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981). Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivitated by the articulated non-discriminatory reasons.
Burdine, 450 U.S. at 257-258. The ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner, remains at all times with Petitioner.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).
Petitioner has failed to offer any credible direct evidence of handicap discrimination. Scott v. Suncoast Beverages, 295 F.3d 1223, 1227 (11th Cir. 2002).
Petitioner has failed to establish that Respondent's proffered reason for her termination was pretextual. Further, in the absence of evidence of intent to discriminate, courts and administrative agencies are "not in the business of adjudging whether employment decisions are prudent or fair," but rather "whether unlawful discriminatory animus motivates a challenged employment decision." Pashoian v. GTE Directories, 208 F. Supp. 2d 1293, 1309 (M.D. Fla. 2002).
Petitioner has failed to show that her termination was made due to discriminatory actions on the part of Respondent,
and thus, there has been no showing that Respondent violated Subsection 760.10(1), Florida Statutes (2003).
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice with prejudice.
DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931
Anne E. Dorfler
Cecil Howard, General Counsel 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.
