STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMANTHIA DOWNS,

Petitioner,

vs.

SHEAR EXPRESS, INC.,

Respondent.

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) Case No. 05-2061

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RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Tavares, Florida, on January 5, 2006. The appearances were as follows:

APPEARANCES

Petitioner: Samanthia Downs, pro se

12740 Blue Heron Way Leesburg, Florida 34788

Respondent: Stephen W. Johnson, Esquire McLin & Burnsed

Post Office Box 491357 Leesburg, Florida 34749-1357

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, Shear Express, Inc., committed alleged acts of employment discrimination in violation of Section

1. , Florida Statutes, by discriminating against the Petitioner because of her age and because of an alleged

   disability.

   
   

   PRELIMINARY STATEMENT

   
   

   This cause arose on June 2, 2005, when the Petitioner filed a Petition for Relief for an Unlawful Employment Practice with the Florida Commission on Human Relations (Commission). The petition followed a charge of discrimination earlier filed by the Petitioner alleging that discrimination against her had occurred based upon her age and her disability when her employment was terminated by the above-named Respondent.

   The Respondent contends that rather than terminating the Petitioner due to age or disability, the Petitioner was terminated due to negative attitude, inappropriate work performance, and insubordination. The cause was scheduled for hearing and came on for hearing as noticed on January 5, 2006.

   At the hearing, the Petitioner testified on her own behalf and offered an affidavit of a former employee into evidence, which was admitted as corroborative hearsay only. The Respondent presented the testimony of Kevin Thompson, the operations manager; Nicole Szymanski; and Janet West, the Respondent's owner. Respondent's Exhibits 1 through 4 were admitted into evidence as well.

   FINDINGS OF FACT

   
   

   1. The Respondent first hired the Petitioner as a hair stylist during 1994. She worked continuously for the Respondent since that time until sometime in the year 2001. During that year, she was terminated for a "negative attitude towards customers."

   2. In late 2002, the Petitioner met with the president of the Respondent, Janet West, asking to have a second chance at employment and to get her job back. Consequently, Ms. West hired the Petitioner again as a hair stylist on December 11, 2002. When the Petitioner was re-hired on December 11, 2002, the Petitioner was 58 years old. When the Petitioner was terminated on July 29, 2004, the Respondent employed approximately 100 to 120 employees. Many of them were over 40 at that time and several were over 50 years of age. In fact, in her testimony, the Petitioner agreed that her age had nothing to do with her termination.

   3. In any event, the Petitioner suffered a fall in 2003, the investigation of which apparently revealed that the Petitioner suffered from a brain tumor. She underwent surgery for that brain tumor in September 2003, which was successful. She returned to work on October 14, 2003, with the only restriction being that she could not drive for some six months following surgery. The Petitioner was then diagnosed with

      shingles in November 2003, and for that reason had to be out of work until January 9, 2004.

   4. The Petitioner was able to return to work on that date without any physical restrictions or limitations following her recovery from shingles. She had already effected a full recovery, without restrictions, from the brain tumor surgery. The Respondent's testimony, which is indeed corroborated by that of the Petitioner, as well as the deposition testimony of

      Dr. Steven Crews, establishes that the Petitioner was able to perform all physical requirements and duties of her job as a hair stylist after her return to work in January 2004. She sought no accommodation for any disability from her employer, and the evidence reflects that she needed no accommodation. She exhibited no physical or mental impairment that substantially limited any major life activity nor was her employer informed of such, and there was no record of any such impairment.

   5. The Petitioner offered no evidence that there was any intent, action or circumstance on the part of her employer, the Respondent, to terminate her based upon any disability. In fact, as found above there was no evidence of disability, physical or mental. Rather, there was evidence from which it may be inferred that there was some ill will between the Petitioner and her employer and supervisor. The Respondent offered evidence which establishes that the Petitioner had

      engaged in a pattern of tardiness in coming to work and then leaving work early. She had a negative attitude toward customers and co-workers and was something of a disruptive influence in the workplace with regard to both customers and coworkers. The termination was shown by the Respondent to be due to the Petitioner's failure to follow rules and the continuing pattern of negativity in her attitude and actions towards customers and co-workers. Indeed, the incident report, in evidence as Respondent's Exhibit Three indicates that the basis for the ultimate termination action was insubordination.

      CONCLUSIONS OF LAW

      
      

   6. 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. (2005).

   7. Section 760.10(1)(a), Florida Statutes, prohibits its employers from discriminating against employees on the basis of age. The Petitioner has the burden of proving a prima facie of age discrimination. In order to prove a prima facie case, the Petitioner must show: (1) that she was a member of a protected age group; (2) that she was subjected to an adverse employment action; (3) that she was qualified to perform her job; and (4) that she was replaced or otherwise lost a position to a younger person. Williams v. Vitro Services Corporation, 144 F.3d 1438, 1441 (11th Cir. 1998).

   8. If a Petitioner presents a prima facie case, the Respondent employer must come forward with evidence to articulate a legitimate, non-discriminatory reason for the employment action under challenge. If the employer articulates one or more such reasons, then the presumption of discrimination established by the prima facie case is eliminated and the Petitioner must then come forward with evidence in turn which will establish to a trier of fact that the reasons given by the employer for the adverse employment action were not the true reasons, but rather that the action resulted from a discriminatory motive. McDonnell-Douglas Corp. v. Green, 411

      U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   9. The ultimate burden of persuasion remains with the Petitioner and if sufficient evidence is not established to show that the employer's reasons for the adverse employment action are pretextual, then the claim must fail. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

   10. Although the Petitioner established that she is a member of the protected age group, at age 58 years, that she was subjected to an adverse employment action, and that she was generally qualified to do her job, she did not demonstrate that she was replaced or lost her position to a younger individual. Thus, she did not establish a prima facie case of age

       discrimination. Indeed, the Petitioner admitted early in the hearing that age had not been a factor in her termination. The Respondent's evidence established rather, that the Petitioner's refusal to comply with the employer's rules, policies, and directions, her history of negative interaction with co- employees and customers as well as her insubordination, tardiness, and habit of leaving work early were the true reasons for her termination. Thus, the Petitioner has not carried her ultimate burden of persuasion in this proceeding and her claim age discrimination must fail. Section 760.10(1)a, Florida Statutes, also prohibits discrimination against employees on the basis of disability or handicap.

   11. In order to establish a prima facie case of discrimination based upon disability or handicap, the Petitioner must show: (1) that she has a disability; (2) that she was qualified to do the work of her employment position; and (3) that she was subjected to an unlawful discriminatory employment action because of her disability. See Cook v. Robert G. Waters,

       Inc., 980 F. Supp. 1463, 1469 (M.D. Fla. 1997). The Petitioner must demonstrate that the Respondent employer had actual or constructive knowledge of the disability or considered the Petitioner to be disabled. Id. at 1467. The Petitioner must also identify a reasonable accommodation that would allow her to perform her job duties with her disability and to establish that

       it was a reasonable accommodation and that she had requested it of the employer but failed to receive it. See Willis v.

       Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997).

       
       

   12. Disability itself is defined as a physical or mental impairment that substantially limits one or more major life activities of an individual such as ambulation, breathing, sleeping, seeing, hearing, macro or micro physical motor skills, speaking, etc. The Petitioner must demonstrate that there was record of such impairment or that the employer knew or had reason to know of such impairment or simply regarded her as having such an impairment. Cook, at 1467, 1468. Although Section 760.10, Florida Statutes, employs the term "handicap," that term is equated in the case law with the term "disability" and the analysis with regard thereto is the same. Ross v. Jim

       Adams Ford, Inc., 871 So. 2d 312 (2d DCA 2004).

       
       

   13. The Petitioner has not demonstrated a prima facie case of disability discrimination. She produced no evidence to show that she had any physical or mental impairments which limited one or more of her major life activities. She did not demonstrate that the employer knew or had reason to know of or simply regarded her as having an impairment or disability. She produced no evidence that there was a reasonable accommodation which would allow her to perform her job duties with any impairment or disability with regard to her major life

       activities, nor that she requested such an accommodation from her employer which was denied. Because she did not prove these elements of a prima facie case of disability discrimination, her claim must fail.

   14. Moreover, the Respondent went forward with evidence to establish the above-referenced reasons for her termination which did not involve any reasons related to age or disability. Rather, as found above, the Petitioner was terminated based upon her negative interaction with co-employees, her supervisor, and customers, her lack of punctuality and insubordination. The Petitioner contends that the Respondent was attempting to force her to leave her employment by means of denying her an adequate flow of customers, but that testimony was self-serving and not persuasive.

   15. Even if it were, there is no evidence that the decision to terminate her was based upon reasons of age or disability and thus, the Petitioner has not carried her burden of establishing that her termination was due to any disability or age discrimination. Even if it were true that the employer had denied her an adequate number of customers in hopes that she would leave her employment, due to some ill will between the Petitioner and the Respondent, it does not equate to establishing that the adverse employment action taken was due to discriminatory animus directed toward the Petitioner because of

any disability or because of her age. Thus, her claim must fail.

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 of Human Relations dismissing the petition in its entirety.

DONE AND ENTERED this 14th day of March, 2006, 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 14th day of March, 2006.

COPIES FURNISHED:

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

Samanthia Downs 12740 Blue Heron Way

Leesburg, Florida 34788

Stephen W. Johnson, Esquire McLin & Burnsed

Post Office Box 491357 Leesburg, Florida 34749-1357

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: 05-002061

Orders for Case No: 05-002061