STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET SHAFFER,

Petitioner,

vs.

WILLSTAFF CRYSTAL, INC.,

Respondent.

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) Case No. 05-0084

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RECOMMENDED ORDER

This cause came on for final hearing, as noticed, before

1. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Milton, Florida on April 12, 2005. The appearances were as follows:

   APPEARANCES

   
   

   For Petitioner: Janet Shaffer, pro se

   6401 Da Lisa Road Milton, Florida 32583

   
   

   For Respondent: John T. Bender, Esquire

   McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard

   Mobile, Alabama 36609

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues to be resolved in this proceeding concern whether the Respondent imposed an unlawful employment practice upon the Petitioner, whether the Petitioner has a disability and

   was subjected to disability discrimination in the course of the purported unlawful employment practice or event.

   PRELIMINARY STATEMENT

   
   

   This cause arose upon the filing of a Petition for Relief by Janet Shaffer (Petitioner) wherein, in essence she alleged that she has a right arm or shoulder injury and that she was terminated from her employment because of the limitations imposed by her arm injury.

   After determination by the Florida Commission on Human Relations (Commission) that there was no cause to believe that such discrimination had occurred, the Petitioner availed herself of the right to a formal proceeding before the Division of Administrative Hearings.

   The cause came on for hearing as noticed. At the hearing the Petitioner presented her own testimony and the Respondent presented the testimony of Ursula Maurice, a manager with Willstaff Crystal, Incorporated. No exhibits were presented.

   Upon concluding the proceeding, the parties requested the opportunity to submit a proposed recommended order. The Respondent submitted a Proposed Recommended Order and it has been considered in the rendition of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Respondent Willstaff Crystal, Inc., (Willstaff) is engaged in the business of employee staffing for client

      companies who need employees. The process essentially concerts of prospective employees submitting employment applications for job placement to Willstaff. Willstaff then seeks to place that person as a hired employee with a firm or company which is one of its clients, (i.e., has requested that Willstaff assist it in finding employees for its business).

   2. On or about August 18, 2003, the Petitioner, Janet Shaffer, made application with Willstaff for employment placement. The application was not for employment as an employee of Willstaff, but rather for placement in a job with a company which might be a client of Willstaff.

   3. After placing Ms. Shaffer in two temporary job assignments with two different employers, she was assigned a job placement with Moldex Inc., on about October 27, 2003. Her duties at Moldex consisted of performing assembly line-type duties including cutting rubber hoses using an "air Knife." The placement and job assignments that Willstaff had secured for Ms. Shaffer during 2003 were designed to be temporary employment assignments.

   4. At some point during her shift, while employed with Moldex, Ms. Shaffer was required to place a box on a shelf above her head. She had some difficulty doing so, she says, because of her arm or shoulder injury, and requested assistance from a co-worker. Ms. Shaffer testified at hearing that due to a

      previous shoulder injury she is unable to lift her right arm above shoulder level. Her shoulder causes her pain, but she was not currently under a doctors care and her injury did not limit any major life activities.

   5. In any event after working only two days with Moldex, Inc., she was released from employment at Moldex, Inc.'s request due to low job productivity. Ms. Shaffer believes according to her testimony, that Moldex, Inc., terminated her as a proximate result of her requesting assistance from a co-worker due to her inability to reach above shoulder level because of her pre- existing shoulder injury.

   6. Her testimony establishes that if she an unlawful employment practice it was at the hands of Moldex, Inc.; not Willstaff. She indicated quite clearly in her testimony that she had no intent to pursue a claim against Willstaff, but only against Moldex, Inc.; because she believed that Moldex, Inc.; had terminated her, due to her limitation because of her shoulder injury. She stated that she named Willstaff as the Respondent in this case by her Petition for Relief because she was instructed to do so by some unknown individual who helped her prepare the Petition for Relief.

   7. Ursula Maurice testified as a representative of Willstaff. Her testimony establishes that Willstaff had no knowledge that Ms. Shaffer suffered from a disability. No

      adverse employment action was ever taken by Willstaff against the Petitioner. In fact, the Petitioner was never an employee of Willstaff. Moreover, Willstaff has an "EEO policy" in place and properly noticed its employees and Ms. Shaffer had never availed herself of it or made any formal complaint to anyone at Willstaff regarding discrimination, whether by Moldex, Inc. or any other entity.

   8. In any event, the Petitioner's own testimony establishes that she has no physical or mental impairment that substantially limits one or more of her major life activities. She also failed to established that she was qualified for the job in question with or without reasonable accommodations, that is, the job she briefly occupied at Moldex, Inc. She did establish that she suffered an adverse employment action or decision because she was "let go" from her employment at Moldex, Inc. She did not establish clearly that Moldex, Inc., had any knowledge of her disability. Finally, and most to the point, the Petitioner has not established, and freely admits, that she was not an employee of Willstaff. Therefore, she did not suffer an adverse employment action or decision made by Willstaff. She clearly stated in her testimony that her complaint is properly against Moldex, Inc. Nonetheless, Moldex, Inc., has not been served with a petition, has not been made a party respondent, and has not been noticed of this proceeding, including the

      hearing. Therefore it is not legally charged with having to defend itself at this juncture, as to any employment decision it may have made regarding the Petitioner in this proceeding.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

   10. Section 760.10, Florida Statutes, makes it unlawful to discriminate against employees by adverse employment action because of an employee's disability. This is a claim under Chapter 760, Florida Statutes, for alleged discrimination because of physical disability.

   11. In order to establish a prima facie case of disability discrimination a Petitioner must show that:

       1. She possess a physical or mental impairment that substantially limits one or more major life activities.

          
          

       2. That the Petitioner is otherwise qualified for the job in question with or without a reasonable accommodation by the employer.

          
          

       3. That the Petitioner suffered an adverse employment action or decision.

          
          

       4. That the Respondent must know or had reason to know of the Petitioner's disability.

       5. That the Petitioner has suffered an adverse employment action by the named employer because of the Petitioner's disability.

          
          

   12. Put in simplest terms, the Petitioner in this case cannot prevail because she has "sued" the wrong entity. She filed her Petition for Relief naming Willstaff as a Respondent, but never was an employee of the Respondent. Therefore, Willstall is not a proper party. The Petitioner has thus not shown that she suffered any adverse employment action or decision by the named Respondent, Willstaff. Her own testimony clearly shows that she was terminated from her position, for whatever reason, by Moldex, Inc., the actual employer with whom she has a disagreement.

   13. Moreover, she did not show that she is otherwise qualified for the job in question with or without reasonable accommodation and her own testimony shows that her physical impairment does not substantially limit one or more major life activities. The Petitioner's testimony, which is the only evidence she offered, does not establish whether or not Moldex was aware of any disability on her part. Consequently, even had she filed her Petition against the proper respondent, which she did not, she did not establish a prima facie case of employment discrimination based upon disability. She was not employed by

Willstaff, and Willstaff imposed no employment action that pertains to her, adverse or otherwise.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition its entirety.

DONE AND ENTERED this 17th day of June, 2005, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 17th day of June, 2005.

COPIES FURNISHED:

Janet Shaffer 6401 Da Lisa Road

Milton, Florida 32583

John T. Bender, Esquire McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard

Mobile, Alabama 36609

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

Tallahassee, Florida 32301

Cecil Howard, General Counsel 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: 05-000084

Orders for Case No: 05-000084