vs.
PRINCE-BUSH INVESTMENTS HOLLYWOOD-H, LLP, d/b/a/ HOLIDAY INN FORT LAUDERDALE AIRPORT,
Respondent.
) Case No. 06-1158
A hearing was held pursuant to notice, on June 1, 2006, via videoteleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Florence Snyder Rivas, a duly- designated Administrative Law Judge of the Division of
Administrative Hearings.
Law Office of Steven M. Ziegler, P.A. 4000 Hollywood Boulevard
Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
On September 15, 2005, Petitioner, Lyne Richard (Petitioner), filed a complaint of discrimination with the Florida Commission on Human Relations (FCHR). In her complaint, Petitioner alleged that Prince-Bush Investments Hollywood-H, LLP, d/b/a/ Holiday Inn Fort Lauderdale Airport (Respondent) had discriminated against her on the basis of disability. The allegations were investigated and on March 10, 2006, FCHR issued its determination of "no cause."
Thereafter Petitioner timely asserted her right to an administrative hearing. On March 31, 2006, FCHR transmitted the case to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a final hearing.
On May 26, 2006, Respondent filed an unopposed Motion to Correct the Caption to accurately reflect Respondent’s correct name, Prince-Bush Investments Hollywood-H, LLP, d/b/a/ Holiday Inn Fort Lauderdale Airport. The motion was granted, nunc pro
tunc, and the caption has been amended accordingly.
The identity of witnesses, exhibits, and attendant rulings are contained in the one-volume transcript of the proceedings filed on August 14, 2006. Proposed Recommended Orders have been submitted by the parties and have been duly-considered. Except as otherwise noted, references to statutes are to the Florida Statutes (2004).
Petitioner was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004.
Respondent is an employer within the meaning of the Florida Civil Rights Act.
At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister).
At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner
never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated.
Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination.
As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to
disciplinary action up to and including termination if they failed to do so.
Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts.
Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand.
Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night,
Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64.
On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004.
Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and
to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004.
Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action.
On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning.
On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the
issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job.
Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence.
Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so."
Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job.
On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner
came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination.
In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
CONCLUSIONS OF LAW
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. (2006).
The Florida Civil Rights Act, among other things, forbids the discriminatory firing of an employee.
Subsection 760.10(1)(a), Florida Statutes, states:
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.
Respondent is an "employer" as defined in Subsection 760.02(7), Florida Statutes, which provides:
(7) "Employer" means any person employing
15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994). Accordingly, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under the Act. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Under the McDonnell Douglas analysis, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful employment discrimination. If the prima facie case is established, the burden shifts to Respondent employer to rebut this preliminary showing by producing evidence
that the adverse employment action--in this case, termination-- was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent's articulated reasons for its adverse employment decision were pretextual. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981).
The unlawful employment practice alleged in this case is discrimination based on disability. In order to prove a prima facie case of discrimination based on disability, Petitioner must prove that she was "(1) a member of the protected class, [in this case], by virtue of her disability;
(2) qualified to do the job; (3) subjected to adverse employment action; and (4) replaced by a person outside the protected class or suffered from disparate treatment because of membership in the protected class." See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Williams v. Vitro Services Corporation,
144 F.3d 1438, 1441 (11th Cir. 1998); Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1270 (Fla. 2d DCA 1986).
In this case, Petitioner has proved that she was qualified to do her bartending job, and that she was subjected to adverse employment action, i.e. termination of employment. However, in order to establish a prima facie case of
discrimination based upon disability, Petitioner must also prove that she was, in fact, disabled within the meaning of the Act, and that she was replaced by a person outside the protected class, or that she suffered disparate treatment because of membership in the protected class. This, she has failed to do. Petitioner presented no persuasive evidence that she was, in fact, disabled in any way.1 Likewise, she presented no persuasive evidence that she was replaced by anyone, or that she suffered disparate treatment because of membership in the protected class.
Assuming arguendo that Petitioner had proved a prima facie case, Respondent established that Petitioner was terminated for a legitimate, non-discriminatory reason, i.e. violation of the cash control policy.
Petitioner failed to prove that Respondent's reasons for terminating her employment are pretextual. Rather, legitimate non-discriminatory business reasons for the actions taken against the Petitioner's employment status were proved by preponderant, persuasive evidence.
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 argument of the parties, it is
RECOMMENDED that the FCHR issue a final order dismissing the Petition for Relief.
DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2006.
1/ With respect to claims of disability discrimination, courts have looked to the Americans With Disabilities Act (ADA), 42
U.S.C. Section 12101, et seq., as well as related regulations and judicial decisions in appropriate cases. This is not such a case. The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment, or being regarded as having such an impairment. 42 U.S.C.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Law Office of Steven M. Ziegler, P.A. 4000 Hollywood Boulevard Presidential Circle, Suite 375, South Hollywood, Florida 33021
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.
