vs.
Respondent.
) Case No. 11-5167
A final hearing was held in this matter before W. David Watkins, Administrative Law Judge of the Division of Administrative Hearings, on December 20, 2011, via video teleconference at sites in Gainesville and Tallahassee.
The Pantry, Inc.
constituted unlawful discrimination based on disability or retaliation.
On April 14, 2011, Petitioner filed an employment complaint of discrimination with the Florida Commission on Human Relations (FCHR) alleging discrimination by Respondent based on disability/handicap. Thereafter, FCHR conducted an investigation, and on September 28, 2011, issued its determination of "no cause." Dissatisfied with the outcome of the FCHR investigation, Petitioner timely filed a Petition for Relief, alleging that he was the victim on an unlawful employment practice committed by Respondent, and requesting an administrative hearing. On October 10, 2011, FCHR forwarded the petition to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal administrative proceeding.
Pursuant to notice, the formal administrative hearing was held on December 20, 2011. At the hearing, Petitioner testified on his own behalf. Petitioner's Exhibits 1 through 6 were received in evidence. Respondent presented the testimony of William Hancock and Albert Smith, and its Exhibits 1 through 6 were received in evidence.
At the conclusion of the hearing the parties stipulated that proposed recommended orders would be due on January 9, 2012. A court reporter was not present at the final hearing, and accordingly, no transcript of the hearing was filed.
Each party timely filed a Proposed Recommended Order, and both of those submissions have been given careful consideration in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2011) unless otherwise noted.
Retailer Lil' Champ hired Petitioner on October 30, 1999. Respondent, The Pantry, Inc., acquired many of the Lil' Champ stores in 2003, including the store located in Williston, Florida, where Petitioner was employed. Following the acquisition, the Lil' Champ store in Williston became a Kangaroo Express.
As of early 2009, Petitioner was employed as the store sales manager of the Williston Kangaroo Express (Store #1181). In this capacity, Petitioner reported to district manager William ("J.R.") Hancock.
In addition to the routine job duties performed by all employees (waiting on customers, stocking shelves, cleaning, etc.) the store sales manager is also responsible for counting the daily receipts, reconciling the receipts with the PDI Daily Report, and preparing the bank deposit slip. According to corporate policy, the person who prepares the deposit and seals the bag must be the same person who carries the deposit to the bank. Only managers are provided with keys to the safe, and
they are never permitted to delegate their banking responsibilities to non-management employees. Understandably, Respondent considers the preparation of the daily bank deposits to be one of the most essential functions of the store sales manager.
The safes of Kangaroo Express stores are located in the floor, and it is ordinarily necessary to bend, squat or kneel to access the contents of the safe.
Petitioner liked working for Kangaroo Express, and saw himself as a "company man," eager to do a good job for his employer. Not surprisingly, when Petitioner was asked by
J.R. Hancock to assist in cleaning other Kangaroo Express stores, he readily agreed. It was while assisting in cleaning the Kangaroo Express store in Newberry, Florida, in February 2010 that Petitioner tore the meniscus in his left knee. Despite this injury, Petitioner continued working regular shifts at Store #1181.
On May 7, 2010, Petitioner had arthroscopic surgery on his left knee in an effort to address the torn meniscus. According to employee staffing records introduced by Petitioner, he returned to work at Store #1181 on or about June 25, 2010, and worked through November 4, 2010, sometimes working back-to- back first and second shifts.
On November 5, 2010, Petitioner had a second surgery on his left knee, followed by several weeks of physical therapy.
On February 17, 2011, Respondent’s corporate risk manager (Dawn Titus) sent a memorandum to J.R. Hancock advising that Petitioner had been approved to return to work as sales manager, with certain restrictions. Specifically, Petitioner was prohibited from lifting objects weighing more than 25 pounds, and from kneeling and squatting. The memorandum stated that the restrictions would be accommodated on a temporary basis. The memorandum also stated:
With these restrictions, George Shuler has been assigned to ring the cash register, complete daily/weekly paperwork, or any other job duty that may fall within his/her job description or as assigned by his/her supervisor.
If anyone is of the opinion that the above restrictions are not being maintained, please contact me immediately at 800-476- 7574. Additionally, George Shuler will need to provide us, in writing, any charges in his/her work status via fax at: (919)238- 2680).
The February 17, 2011, memorandum did not state that Petitioner was not to complete the daily bank deposits. To the contrary, the memorandum stated that Petitioner was to “complete daily/weekly paperwork, or any other job duty that may fall within his/her job description. . . .” Nor did the memorandum make mention of additional employee staffing to assist with
accessing the floor safe as an accommodation to Petitioner’s temporary physical limitations.
Upon being “cleared” to return to work, Petitioner resumed his duties as manager of Store #1181, including working the register, stocking the shelves, assisting with deliveries, and cleaning. The unrebutted testimony also established that upon his return, Petitioner continued to prepare the daily deposits and take them to the bank pursuant to company policy.1/ In order to perform his banking duties Petitioner was able to access the floor safe with the assistance of a small step ladder he used to lower himself down. It was not necessary for him to kneel or stoop to access the safe. Petitioner’s supervisor,
J.R. Hancock, confirmed that Petitioner prepared the deposits upon his return to work, and that he was unaware of Petitioner failing to timely make a daily deposit or otherwise comply with corporate banking policies.
On March 16, 2011, Petitioner was “written up” by J.R. Hancock for failing to schedule employees to meet the “needs of the business.”2/ This was the third time in as many years that Hancock had criticized the way Petitioner had scheduled employees, primarily because the labor hours for his store exceeded the corporate labor-scheduling model. Petitioner disagreed with J.R. Hancock’s criticisms of his staffing, and felt that Hancock was trying to force Petitioner to “schedule
the store the way Hancock wanted to staff it, not the way I knew it should be staffed.” With respect to Hancock’s criticism of double-coverage on the morning shift, Petitioner testified that his store was a “morning store” with most customers coming in for coffee, which had to be frequently replenished.3/ As such, his store was more labor intensive during the morning shift, as opposed to the afternoon shift where most customers simply “grabbed a six-pack from the cooler.”4/
Since Petitioner disagreed with the criticisms leveled by J.R. Hancock on March 16, 2011, Petitioner refused to sign the employee conduct report prepared by Hancock. In addition, on March 21, 2011, Petitioner spoke with Respondent’s human relations department to complain about J.R. Hancock’s continued efforts to micromanage the staffing of Store #1181. The human relations employee Petitioner spoke with (Albert Smith) advised Petitioner to “work with” Mr. Hancock to resolve their differences. At hearing, Mr. Smith testified that he never told Hancock (or anyone in corporate) about his conversation with Petitioner.
On March 17, 2011, Petitioner was examined by Edward Jaffe, M.D., who completed the “Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form.” Dr. Jaffe reported that Petitioner had achieved his maximum medical
improvement and had a 5 percent permanent impairment rating (body as a whole) which was attributable to the condition of his left knee.
Dr. Jaffe affirmatively checked Item 23 of the report, authorizing Petitioner’s return to work with certain functional limitations and restrictions. The identified “joint and/or body part” subject to the restrictions was the “left knee.” The functional activities restricted included kneeling and squatting, but not bending.
At hearing, Respondent asserted that the restriction relating to kneeling applied to both of Petitioner’s knees. This interpretation of Dr. Jaffe’s report is rejected as not supported by the greater weight of the evidence. Rather, the joint/body part affected by the limitations was specifically identified by Dr. Jaffe as the “left knee,” and the body part/system determined to be permanently impaired was also identified as the “left knee.”
Following his visit to Dr. Jaffe on March 17, 2011, Petitioner continued performing his duties as manager of Store #1181 until March 23, 2011, when he received a call from Dawn Titus at corporate informing him that his employment with Respondent had been terminated.
Petitioner’s district manager (J.R. Hancock) testified that he played no role in the decision to fire Petitioner. Rather, J.R. Hancock testified that while he was vacationing at Disneyworld he received a call from Ms. Titus advising him that Petitioner had been terminated because the company could not accommodate his permanent restrictions. Although J.R. Hancock had “written up” Petitioner on several occasions for exceeding the allotted weekly labor hours, he had not recommended to anyone at corporate that Petitioner be fired for that reason or any other reason relating to Petitioner’s job performance.
It is found that Respondent summarily concluded that Petitioner could not perform the essential duties of the job based entirely upon Dr. Jaffe's report. However, the credible testimony of Petitioner established that he required no special accommodations in order to perform the essential functions of store manager (including accessing the floor safe), and in fact had been successfully performing those duties since returning to Store #1181 in February 2011.
Following his termination on March 23, 2011, Petitioner filed a claim for unemployment compensation with the state of Florida. However, that claim was denied based upon a communication from TALX UC eXpress, acting as the duly authorized agent of The Pantry, Inc., advising that the claimant
"is considered to have voluntarily quit after failing to return from an approved leave of absence."5/
At hearing, Petitioner amended his petition, sua sponte, to include a charge of retaliation. Specifically, Petitioner alleges that he was fired in retaliation for lodging a complaint about J.R. Hancock to the corporate human relations department. This record does not substantiate the claim of retaliation, since Mr. Smith credibly testified that he did not communicate the complaint to any other employees of Respondent. Similarly, the credible testimony of J.R. Hancock established that Hancock was not involved in the decision to terminate Petitioner.
The credible evidence of record established that Petitioner was terminated by Respondent because Respondent considered Petitioner to be handicapped. Respondent made the decision to terminate Petitioner because of his handicap without regard to whether Petitioner was able to perform the essential functions of a Kangaroo Express store manager. Respondent made no inquiry as to whether Petitioner was actually performing the essential functions of the position, or whether any reasonable accommodations could be provided to allow Petitioner to perform the essential functions of the employment position.
The following summarizes the timeline of events culminating in the termination of Petitioner’s employment with Respondent:
2/17/2010: Petitioner injured on job while doing extra duty (cleaning the Kangaroo store in Newberry)
5/7/2010: Petitioner has a left knee arthroscopy, after which he returns to work at Store #1181.
11/5/2010: Petitioner has a second surgery on his left knee, followed by several weeks of physical therapy.
2/17/2011: Petitioner is permitted to return to work as sales manager with temporary restrictions.
3/16/2011: Petitioner “written up” by J.R. Hancock for exceeding corporate staffing targets.
3/17/2011: Petitioner is examined by physician who completes Workers Compensation Reporting Form, noting permanent functional limitations and restrictions.
3/21/2011: Petitioner lodges complaint with Respondent’s human relations department about J.R. Hancock.
3/23/2011: Petitioner is terminated by Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Discrimination Based on Handicap/Disability
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).
Section 760.10, Florida Statutes, provides that:
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.
The Act gives the FCHR the authority to issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay, if it finds following an administrative hearing that an unlawful employment practice has occurred. See § 760.11, Fla. Stat. To obtain relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR. § 760.11(1), Fla. Stat. It is concluded that Petitioner filed a complaint within the statutory time limitation.
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).
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.
In this instance, it was undisputed that preparing and making the daily deposit is an essential function of the store manager.
On the subject of reasonable accommodations, the U.S. Eleventh Circuit Court of Appeals has written:
[A] 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, part-time 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).
Stewart v. Happy Herman's Cheshire Bridge, 117 F.3d 1278, 1285-86 (11th Cir. 1997).
Petitioner has the burden of proving the allegations asserted. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." See Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) ("Direct evidence is 'evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.'"). "If the [complainant] offers
direct evidence and the trier of fact accepts that evidence, then the [complainant] has proven discrimination." Maynard v.
Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
To establish a prima facie case of discrimination, Petitioner must prove by a preponderance of the evidence:
(1) that he is a handicapped person within the meaning of subsection 760.10(1)(a); (2) that he is a qualified individual; and (3) that Respondent discriminated against him on the basis of his disability. See Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000); Pritchard v. S. Co. Servs., 92 F.3d 1130 (11th Cir.1996); and Byrd v. BT Foods, Inc., 948 So. 2d 921 (Fla. 4th DCA 2007).
The term "handicap" in the FCRA is treated as equivalent to the term "disability" in the A.D.A. See Ross v. Jim Adams Ford, Inc., 871 So. 2d 312 (Fla. 2d DCA 2004).
The ADA defines a "disability" as "(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 impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(1). "Major life activities" include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working. 42 U.S.C. § 12102(2)(A); Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d
540 (1998).
In Sutton v. United Air Lines, Inc., the Supreme Court declared that whether a person is disabled under the ADA is an "individualized inquiry." It stated:
The definition of disability . . . requires that disabilities be evaluated 'with respect to an individual' and be determined based on whether an impairment substantially limits the major life activities of such individual.' Thus, whether a person has a disability under the ADA is an individualized inquiry.
Id. at 484.
It is concluded that Petitioner meets the definition of handicapped because he was regarded by Respondent as being impaired in his ability to perform a manual task, specifically, accessing the floor safe of Store #1181.
Federal discrimination law may properly be used for guidance in evaluating the merits of claims arising under section 760.10. See Brand v. Fla. Power Corp., 633 So. 2d 504,
509 (Fla. 1st DCA 1994); Fla. Dep't of Cmty. Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the Supreme Court articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial
evidence. The McDonnell Douglas decision is persuasive in this case, as is St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, the plaintiff (Petitioner herein) has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff'd, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the plaintiff succeeds in making a prima facie case, then the burden shifts to the defendant (Respondent herein) to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this burden of rebutting the plaintiff's prima facie case, then the plaintiff must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.
In Hicks, the Court stressed that even if the trier- of-fact were to reject as incredible the reason put forward by the defendant to justify its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question
of whether the defendant intentionally discriminated against him. Hicks, 509 U.S. at 511. "It is not enough, in other words, to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." Id. at 519.
Here, Petitioner established a prima facie case of unlawful discrimination using circumstantial evidence. The evidence established that similarly situated employees outside his classification (non-permanently disabled store managers) were treated more favorably than he (they weren’t terminated), as was his burden under McDonnell Douglas. See Campbell v. Dominick's Finer Foods, Inc., 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000) ("To establish this element, [the claimant] must point to similarly situated non-[disabled] employees who engaged in similar conduct, but were neither disciplined nor terminated."). Petitioner established that at the time of his termination he suffered from a disability (a permanently impaired left knee) and credible evidence that Respondent perceived him to be disabled and discriminated against him on that basis. Indeed, Respondent conceded at hearing that Petitioner was terminated because he had been determined to have a permanent impairment.
Because Petitioner established a prima facie case of discrimination based on handicap, the burden of proof in this cause shifted to the Respondent to articulate a legitimate, non-
discriminatory reason for its action. In this case, Respondent failed to do so. If an employer successfully articulates a reason for its action, then the burden shifts back to the complainant to establish that the proffered reason was a pretext for the unlawful discrimination. See Malu v. City of Gainesville, 270 Fed. Appx. 945; 2008 U.S. App. LEXIS 6775 (11th
Cir. 2008).
In addition to establishing a prima facie case of unlawful discrimination based upon handicap, Petitioner also established that Respondent’s stated reason for terminating him was a pretext for unlawful discrimination. Here, the persuasive evidence established that Respondent did not have grounds for terminating Petitioner. The evidence established that following the imposition of temporary restrictions in February 2011, Petitioner was expected to, and indeed did, continue to perform the essential functions of a store manager, including preparation and delivery of bank deposits. Respondent’s assertion that Dr. Jaffe’s report established that Petitioner was no longer able to perform the duties of store manager is not supported by this record. To the contrary, the functional limitations imposed in Dr. Jaffe’s March 17, 2011, report are the same as those imposed by Respondent on a temporary basis on February 17, 2011. Yet the unrebutted testimony established that during that one-month period Petitioner successfully
performed the duties of store manager. The evidence established that while observing the temporary restrictions imposed by Respondent, Petitioner was able to access the floor safe notwithstanding his impaired left knee, the same disability cited by Respondent as grounds for his termination.
Retaliation
The court in Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the analysis required for a retaliation claim. The opinion says:
To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm't Corp., 139 F.3d 1385 (11th Cir.), cert. denied, 525 U.S.
1000, 119 S. Ct. 509, 142 L. Ed. 2d 422
(1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant's asserted reasons for the adverse action are pretextual. Id.
The facts do not support Petitioner’s claim that his termination was in retaliation for his lodging a complaint with Respondent’s human relations department against J.R. Hancock. While there is no question that Petitioner engaged in a
statutorily protected activity and suffered an adverse employment action, the facts do not establish a causal connection between Petitioner's complaint against J.R. Hancock and his termination by Respondent. Rather, Petitioner's termination was the direct result of Respondent's determination that Petitioner is permanently handicapped.
The purpose of relief in a discrimination case, such as this is to recreate the conditions and relationships that would have been had there been no unlawful discrimination; that is to say, make the party whole. See United States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999).
issue a final order finding cause for an unlawful employment practice as alleged by Petitioner, and awarding Petitioner back pay from the date of his termination by Respondent.
DONE AND ENTERED this 24th day of February, 2012, in Tallahassee, Leon County, Florida.
W. DAVID WATKINS Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2012.
1/ Mr. Hancock testified that Petitioner was permitted “limited double-coverage” to accommodate his injury, but on cross conceded that he did not know whether Petitioner was the one accessing the contents of the floor safe. He assumed that Petitioner was the one making the store deposits.
2/ In its proposed recommended order Respondent asserts that Respondent permitted Petitioner to have overlapping coverage during the bank deposit preparation hours to allow another employee to kneel to collect the deposit out of the safe. There is no credible evidence to substantiate this contention. To the contrary, the Employee Conduct Report of March 16, 2011, (during the period of the temporary restrictions) again criticizes Petitioner for double-coverage staffing.
3/ Petitioner testified that during the time he was store manager, his store was “Number 1” in the district for coffee sales.
4/ Petitioner testified that Store #1181 was appropriately staffed for double-coverage on the morning shift even on days when he did not work. This testimony was corroborated by the
quarterly shift records, including for periods preceding Petitioner’s injury in February 2010, which reflect double- coverage on the morning shift.
5/ At hearing Respondent offered no explanation as to why its agent represented to the state of Florida that Petitioner had voluntarily quit.
Melissa Beth Garrett The Pantry, Inc.
Larry Kranert, 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.
