vs.
) Case No. 05-4056
This case came before Administrative Law Judge John G. Van Laningham for final hearing in Tallahassee, Florida, on January 17, 2006.
For Petitioner: Danette T. Marshall, pro se
For Respondent: Lindsay A. Connor, Esquire
Amy R. Harrison, Esquire Ford & Harrison LLP
Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
On or about March 30, 2005, Petitioner Danette Marshall filed an Amended Charge with the Florida Commission on Human Relations ("FCHR") in which she claimed that Respondent Sam's East, Inc., rather than making a reasonable accommodation for her alleged disability, had terminated her employment as customer "greeter." On September 26, 2005, the FCHR gave notice of its determination that no reasonable cause had been found to believe that Respondent had committed an unlawful employment practice.
Ms. Marshall elected to pursue administrative remedies.
October 28, 2005. The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on October 31, 2005, and an administrative law judge ("ALJ") was assigned to the case. The ALJ scheduled the final hearing for January 17, 2006.
At the hearing, Ms. Marshall testified on her own behalf and offered four exhibits, numbered 1 through 4, which were received into evidence. During its case, Respondent presented the testimony of Terri Lynn Gavins and Mildred Ballen.
Additionally, Respondent's Exhibits 1 through 6 were admitted.
The final hearing transcript was filed on February 15, 2006. Thereafter, the parties timely filed proposed recommended orders, which have been considered.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.
Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter."
The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times.
While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist.
Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working.
Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her.
Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3
In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off.
To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work.
Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed.
In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4
Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, and 120.57(1), Florida Statutes.
Under the Florida Civil Rights Act of 1992 ("FCRA"), Sections 760.01-11, Florida Statutes, an employer commits an unlawful employment practice if it takes adverse action against an employee based on a handicap, unless not having the handicap in question constitutes a bona fide occupational qualification
reasonably necessary for the performance of the particular employment to which such adverse action is related. See
§ 760.10(1)(a), (8)(a), Fla. Stat. In this regard, the FCRA parallels the federal Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213.
Because the FCRA's provisions outlawing handicap discrimination correspond with similar provisions in the ADA, Florida courts consistently have construed the FCRA into conformity with the ADA——to the point that "a disability discrimination cause of action [brought under Florida law] is analyzed under the ADA." See Wimberly v. Securities Technology Group, Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004); Razner v. Wellington Reg'l Med. Ctr., Inc., 837 So. 2d 437, 440 (Fla. 4th DCA 2002); Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1106 (Fla. 5th DCA 1998).
"To present a prima facie case of employment discrimination based on disability under FCRA, [as under the ADA,] a plaintiff must show 1) that he or she is a person with a disability; 2) that he or she is 'qualified' for the position apart from his or her disability; and 3) that he or she was denied the position [or otherwise discriminated against] . . . because of his or her disability." Avatar Properties, 714 So. 2d at 1106; see also, e.g., Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 (11th Cir. 1996).
Disability.
The ADA defines the term "disability" to mean "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Here, the evidence being insufficient to support a finding of disability under either subsection (B) or (C), Marshall's claim will be evaluated under the rubric of subsection (A).
As the Fourth District Court of Appeal has explained,
[f]or there to be a disability within the meaning of the ADA, there must be a substantial limitation on a major life activity; a "disabled" person must be completely unable to perform the activity, or significantly restricted in performing the activity as compared to an average person. See [Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195-96, 151 L.
Ed. 2d 615, 122 S. Ct. 681 (2002)]; 29
C.F.R. § 1630.2(j)(1) (2000). Factors to consider when determining whether an individual is "substantially limited" include: 1) "the nature and severity of the impairment;" 2) "the duration or expected duration of the impairment;" and 3) "the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." [29 C.F.R.]
§ 1630.2(j)(2).
Wimberly, 866 So. 2d at 147.
The pertinent federal regulation defines "major life activities" to include "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
Marshall contends that she is disabled because she cannot stand for prolonged periods of time. Although standing constitutes a "major life activity," a person who can stand functionally for a reasonable period of time is not considered substantially limited in the performance of standing as a major life activity. It has been held, for example, that the inability to stand for more than one hour at a time is not a "substantial limitation" under the ADA. See Dupre v. Charter
Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001)(Plaintiff's ability to stand in one place for up to one hour at a time showed that the "condition, manner, or duration" under which plaintiff could stand was not significantly restricted as compared with the average person.); see also Taylor v. Pathmark Stores, Inc. 177 F.3d 180, 186 (3d Cir. 1999)(cashier who could stand for 50 minutes before needing 10-minute break was not disabled for purposes of ADA); Buskirk
v. Apollo Metals, 116 F. Supp. 2d 591, 598 (E.D. Pa. 2000)(being restricted by doctor to no more than three hours of continuous standing insufficient to show substantial limitation on standing ability.)
Marshall proved that, at the time she was discharged, her ability to stand continuously was limited to some degree by
a painful condition affecting both of her feet. But the evidence shows also that Marshall was able to stand and function on her feet for periods sufficient to accomplish reasonable daily activities. Marshall failed, therefore, to demonstrate a substantial limitation in her ability to stand.
Accordingly, it is found and concluded that Marshall is not a person with a "disability" (or "handicap," to use the FCRA's terminology) as that term is understood in the context of disability discrimination law.
Qualification.
Even if it were assumed, for argument's sake, that Marshall is a person with a disability under the ADA/FCRA, to make her case she would need to show that she is "qualified" to work as a greeter for Sam's Club.
The ADA prohibits employment discrimination against a "qualified individual with a disability," meaning an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Thus, to prevail, the plaintiff in a disability discrimination case "must show either that he can perform the essential functions of his job without accommodation, or, failing that, show that he can perform the essential functions of his job with a reasonable accommodation." Davis v. Florida Power & Light
Co., 205 F.3d 1301, 1305 (11th Cir. 2000). If the plaintiff "is unable to perform an essential function of his . . . job, even with an accommodation, he is, by definition, not a 'qualified individual' and, therefore, not covered under the ADA. In other words, the ADA does not require [the employer] to eliminate an essential function of [the plaintiff's] job." Id. (citation omitted); see also, e.g., D'Angelo v. Conagra Foods, 422 F.3d 1220, 1229 (11th Cir. 2005).
The "term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires," and "does not include the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). "Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors." Davis, 205 F.3d at 1305. The ADA requires that, in making this determination, "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). "The ADA regulations provide that other factors to consider are: (1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the
collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs." Davis, 205 F.3d at 1305 (citing 29
C.F.R. § 1630.2(n)(3)); see also D'Angelo, 422 F.3d. at 1230.
Here, Sam's Club asserts that constant mobility is an essential function of the greeter position. This in turn requires the greeter to be on his or her feet for extended stretches of time. Marshall, for her part, essentially has conceded that constant mobility is an essential function of the job, and she admits that, at the time of her discharge, she was unable to stand for prolonged periods. (Marshall's position—— which will be addressed momentarily——is that she can perform the job with a reasonable accommodation, namely, a stool.) Thus, the undersigned finds and concludes that, because she is unable to stand and move about for long periods of time, which are essential job functions, Marshall is not qualified, without an accommodation, to work as a greeter.
On the subject of reasonable accommodations, the U.S. Eleventh Circuit Court of Appeals has written:
qualified individual with a disability may be unlawfully discriminated against because of the individual's disability when the individual's employer does not reasonably accommodate the disability——unless such an accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A). Under the ADA, the term "reasonable
accommodation" may include, inter alia, "job restructuring, parttime or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B).
This list notwithstanding, "the use of the word 'reasonable' as an adjective for the word 'accommodate' connotes that an employer is not required to accommodate an employee in any manner in which that employee desires." Lewis v. Zilog, Inc., 908 F. Supp. 931, 947 (N.D.Ga. 1995). This is so because the word "reasonable" would be rendered superfluous in the ADA if employers were required in every instance to provide employees "the maximum accommodation or every conceivable accommodation possible." Lewis, 908 F. Supp. at 947; see also Vande Zande v. State of Wis. Dept. of Admin., 851 F. Supp. 353, 360 (W.D.Wis. 1994)("an
employee is entitled only to a reasonable accommodation and not to [a] preferred accommodation"), aff'd, 44 F.3d 538 (7th Cir. 1995). Stated plainly, under the ADA a qualified individual with a disability is "not entitled to the accommodation of her choice, but only to a reasonable accommodation." Lewis, 908 F. Supp. at 948.
Moreover, the burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable.
Willis v. Conopco, 108 F.3d 282, 283 (11th
Cir. 1997).
Stewart v. Happy Herman's Cheshire Bridge, 117 F.3d 1278, 1285- 86 (11th Cir. 1997).
The accommodation that Marshall sought was a stool on which to sit periodically while working, to rest her feet. The undersigned agrees with Sam's Club, however, that a greeter cannot meaningfully engage in proactive customer service while sitting, immobile, on a stool.5 Accordingly, it is found and concluded that such an accommodation would not be reasonable. See generally Kuehl v. Wal-Mart Stores, Inc., 909 F. Supp. 794, 802-04 (D. Colo. 1995)(employee with tendonitis who had rejected other reasonable accommodations was not entitled to a stool on which to sit during shift as greeter).
Further, Sam's Club did, in fact, offer Marshall an accommodation: a medical leave of absence. Such leaves are recognized as potentially reasonable accommodations. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443-44 (1st Cir. 1998); Reynolds v. IBM, 320 F. Supp. 2d 1290, 1304 (M.D. Fla. 2004). Under the present circumstances, a medical leave, which would have allowed Marshall to rest, recuperate, and seek treatment, was reasonable. Indeed, Marshall was willing, at one time, to accept the invitation to take a leave of absence——she even took affirmative steps toward requesting one——but failed to persevere to the end of the application process.
As an alternative basis for disposition, therefore, the undersigned finds and concludes that Sam's Club did not
discriminate against Marshall by refusing reasonably to accommodate her disability (assuming she had one).
Causation.
Under the ADA, a plaintiff must prove by a preponderance of the evidence that she was discriminated against "because of" her disability. 42 U.S.C. § 12112(a). The Eleventh Circuit has interpreted the ADA's "because of" causation language to mean, not the sole basis for the unlawful discrimination, but "a factor that made a difference in the outcome." McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996), cert.
denied, 520 U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d 1028
(1997). Put another way, the "ADA imposes a 'but-for' liability standard." Id.; see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1334 (11th Cir. 1999).
In this case, the evidence fails to persuade the undersigned that Sam's Club terminated Marshall's employment because of her alleged disability. The evidence shows, rather, that Marshall stopped showing up for work as scheduled, claiming inability to perform unless provided a stool. Sam's Club declined, for bona fide reasons, to let Marshall sit on a stool during her shift, but it did invite her, reasonably, to apply for a medical leave of absence. Marshall was agreeable to taking the offered leave but failed to follow the application process through to completion. Sam's Club gave Marshall an
ultimatum: (a) resume working, (b) properly request a leave of absence, or (c) be fired. Marshall failed to take either of the courses of action that could have preserved her employment.
Consequently, Sam's Club dismissed her, for excessive absenteeism and inability to perform. Though unfortunate for Marshall, this is not unlawful discrimination.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination.
DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2006.
1/ The proper corporate name of Petitioner's former employer is Sam's East, Inc. At hearing, the undersigned ordered that the style be amended to reflect this undisputed fact.
2/ Marshall testified that she declined to follow her doctor's recommendation that she undergo treatment with steroids (presumably to reduce the inflammation) but did not describe with any particularity the medical interventions, if any, that were implemented on doctor's orders.
3/ Between February 21 and March 11, 2005, Marshall was scheduled to work 10 shifts. She worked only one (on March 5, 2005)——and that she left early.
5/ It is undisputed that one of the greeters who worked with Marshall was wheelchair-bound. Marshall argues that this fact demonstrates that permitting her to sit on a stool would be a reasonable accommodation. The employee in the wheelchair did not sit in one place during her shift, however; she was, instead, constantly on the move, working, performing all of the duties of a greeter. Marshall, in contrast, proposed to sit periodically and rest, performing only such duties as could be carried out from a stationary position and otherwise taking a break. The two situations, therefore, are distinguishable.
Danette T. Marshall
Lindsay A. Connor, Esquire Amy R. Harrison, Esquire Ford & Harrison LLP
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
