vs.
Case No. 14-4694
Respondent.
120.569 and 120.57(1), Florida Statutes (2014), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings, on January 8, 2015, by webcast at sites in West Palm Beach, Fort Lauderdale, and Tallahassee, Florida.
The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner
Statutes.
On June 26, 2014, Petitioner, Ramona Thompson, filed a Charge of Discrimination ("Complaint") with the Equal Employment Opportunity Commission and the Florida Commission on Human Relations ("FCHR"), alleging that Respondent, Asset Builders LLC, d/b/a Messam Construction, committed unlawful discrimination against her. Specifically, Petitioner claimed that Respondent discharged or otherwise discriminated against her with respect to the terms, conditions, or privileges of employment on the basis of her handicap. FCHR investigated the Complaint and issued a "No Cause" Determination on September 9, 2014.
Petitioner elected to pursue administrative remedies and timely filed a Petition for Relief ("Petition") with FCHR on October 7, 2014. On October 9, 2014, FCHR referred the Petition to the Division of Administrative Hearings to conduct a hearing under sections 120.569 and 120.57(1), Florida Statutes. The final hearing initially was scheduled for December 16, 2014, but pursuant to agreement of the parties, was rescheduled for, and held on, January 8, 2015.
Petitioner testified on her own behalf. Petitioner's Exhibit A was admitted into evidence without objection and Petitioner's Exhibits B through R were admitted into evidence
over objection. Respondent's Manager, Angela Messam, testified on Respondent's behalf. Respondent's Exhibits 1 through 11 were admitted into evidence without objection and Respondent's Exhibits 12 and 14 were proffered but not admitted into evidence.
The final hearing was transcribed but the parties did not order a copy of the transcript. Petitioner timely filed a Proposed Recommended Order, which was duly considered in preparing this Recommended Order. Respondent did not file a proposed recommended order.
Petitioner is a female, age 44 at the time of the final hearing, who was employed with Respondent between May 14, 2012, and July 1, 2013.
Respondent is an active limited liability company established and doing business pursuant to Florida Law.
Petitioner was hired by Respondent on May 14, 2012, as a Document Control Supervisor. Her duties consisted of managing documents for Respondent in connection with Respondent's subcontract for the T-4 Gate Replacement Project ("Project") at the Fort Lauderdale-Hollywood Airport.
Petitioner was assigned to work in a trailer at or near the Project jobsite. She was Respondent's only employee working full-time at the Project jobsite. She was supervised by
Wayne Messam, Angela Messam, and Dwayne Vaughn, all of whom worked primarily at other locations.
As Document Control Supervisor, Petitioner performed a vital function for Respondent in performing its subcontract for the Project. The persuasive evidence establishes that she was well-qualified for, and proficient at, her job.
Many feral cats frequented the area immediately outside the trailer at the Project jobsite. They were attracted to the area because persons working in and near the trailer fed them. As a result of the cats frequenting the area, fleas and animal dander were pervasive at the jobsite, including inside the trailer where Petitioner worked. At times, cat feces were tracked into the trailer.
In May 2013, Petitioner reported to Dwayne Vaughn, Respondent's Project Controls Manager and Petitioner's direct supervisor, that she was being bitten by fleas in and around the trailer due to the feral cats frequenting the area. She asked Vaughn to contact the Broward County animal control service to remove the cats.
On June 14, 2013, Petitioner suffered an asthma attack.
She received medical care at the Broward Health Medical Center Emergency Department and was diagnosed as having acute asthma and allergic rhinitis. According to her treating physician, the asthma was precipitated or aggravated by cat dander and other
conditions attributed to the presence of cats at the jobsite. She was prescribed, and took, medication.
At a follow-up visit on June 17, 2013, Petitioner's primary care physician strongly advised her to avoid being around cats in the workplace environment.
Petitioner continued to press Vaughn about contacting the local animal control service to remove the cats. At some point, some, but not all, of the cats were removed from the Project jobsite. However, some continued to frequent the area around the trailer and continued to be fed.
Petitioner contacted Angela Messam to request instructions on filing a workers' compensation claim. Messam did not provide her the requested instructions, but instead directed her to go to U.S. HealthWorks, a medical treatment facility, located at 407 Southeast 24th Street, Fort Lauderdale, Florida.
On June 20, 2013, Petitioner sought medical care at
U.S. HealthWorks. Messam met Petitioner there and authorized her medical treatment.
The credible evidence establishes that Messam attempted to dissuade Petitioner from filing a workers' compensation claim.
The credible, persuasive evidence also establishes that, despite Messam's representation to Petitioner and to her treating physician at U.S. HealthWorks that she would be re- assigned to work in a different location, Petitioner was instead
directed to return to the Project jobsite. She was not re- assigned to work at an alternative location.
On June 21, 2013, Respondent wrote Petitioner a letter detailing the measures that Respondent was undertaking to address the presence of cats and related unsanitary conditions at the jobsite, and accommodations that Respondent and the contractor, Turner Construction, would provide to Petitioner until conditions at the Project jobsite were addressed to the extent that Petitioner could return to work there without aggravating her asthma.
The credible evidence showed that despite such representations, Respondent and Turner did not provide Petitioner the accommodations promised in the June 21, 2013, letter. The evidence establishes that Respondent did not implement any measures that would have allowed Petitioner to perform her job in another location. Thus, if Petitioner wanted to keep her job, she had to report to the Project jobsite.
Petitioner continued to suffer debilitating asthma- related illness. Petitioner sought additional medical care for her asthma from her primary care physician on June 24, 2013, and from U.S. HealthWorks on June 26, 2013. Treating physicians at both facilities told Petitioner that she had asthma and warned her that working at a jobsite where cats were present would aggravate her asthma.
The credible, persuasive evidence establishes that despite Petitioner's repeated entreaties, the Project jobsite conditions that precipitated or aggravated her asthma went unaddressed or were inadequately addressed by Respondent.
On July 1, 2013, Petitioner reported to the Project jobsite. She observed cats and feeding dishes present outside the trailer. She told Vaughn that she was still having difficulty breathing and that her condition would not improve as long as cats were allowed to remain outside the trailer. Vaughn told Petitioner there was nothing more that Respondent could do about the remaining cats.
At that point, Petitioner realized that Respondent was not going to address the circumstances that precipitated her asthma. Petitioner finished the high-priority matter on which she was working, then submitted her resignation, effective immediately.
In her letter of resignation, Petitioner made very clear that the sole reason for her resignation was that the conditions that precipitated or aggravated her asthma——the presence of cats and attendant environmental conditions——had not been adequately addressed, so she was forced to leave her job in order to protect her health and safety.
While employed with Respondent, Petitioner was paid an annual compensation of $56,160.00.
Since resigning her job with Respondent on July 1, 2013, Petitioner has been unable to find employment. As a result, she was unable to pay rent so was evicted from her home, and her automobile was repossessed.
Petitioner seeks an award of back pay in the amount of her annual salary pursuant to section 760.11(5).
Angela Messam, appearing on behalf of Respondent, testified that Respondent did, in fact, take substantial measures to remove the cats from the Project jobsite, sprayed for pests, and cleaned up conditions at the site. Messam claimed that notwithstanding these measures, Petitioner continued to complain and that it seemed that Respondent could do nothing to satisfy her. Messam further testified that Petitioner was offered the accommodation of working at the corporate office but chose not to do so. The undersigned finds Messam's testimony on these points completely incredible and unpersuasive.
To the contrary, Messam and other employees of Respondent were fully aware of the conditions that precipitated or aggravated Petitioner's asthma, failed to take adequate steps to remove those conditions from the Project jobsite, and failed to provide any reasonable accommodation to Petitioner by enabling her to work at an alternative location.
At the final hearing, Respondent presented a Florida Department of Revenue Employer's Quarterly Report covering each
quarterly reporting period commencing in June 2012 and ending December 31, 2013. Each report shows that Respondent employed fewer than 15 employees for the quarter covered by the report. These reports, supported by Messam's testimony, constitute competent substantial evidence showing that Respondent employed fewer than 15 employees for each working day in each of 20 or more calendar weeks in 2012, the calendar year preceding the alleged discrimination; and that Respondent employed fewer than
15 employees for each working day in each of the 52 calendar weeks in 2013, the year of the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1).
The Florida Civil Rights Act of 1992 ("FCRA"), chapter 760, Florida Statutes, prohibits discrimination in the workplace. Section 760.10 states in relevant part:
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.
§ 760.10(1)(a), Fla. Stat. (emphasis added).
Florida courts have held that federal case law regarding employment discrimination applies to claims arising under the FCRA. See, e.g., Garavito v. City of Tampa, 640 F. Supp. 2d 1374 (M.D. Fla. 2009).
The United States Supreme Court's analysis for employment discrimination set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) applies to claims arising under section 760.10, Florida Statutes. See Paraohao v. Banker's Club,
Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Fla. State
Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996);
Fla. Dep't of Comm. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA
1991).
Under McDonnell, a person claiming unlawful employment
discrimination has the burden to establish, by a preponderance of the evidence, a prima facie case of unlawful discrimination. If the claimant meets his or her burden, the burden then shifts to the employer to prove that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to the claimant to show, by a preponderance of the evidence, that the employer's offered reasons for its adverse employment decision were
pretextual. See Texas Dep't of Comm. Aff. v. Burdine, 450 U.S.
248 (1981).
To establish a prima facie case of unlawful employment discrimination in this proceeding, Petitioner must show that:
she is a member of a class protected under section 760.10;
she was subject to adverse employment action; (3) she was treated disparately due to her handicap and no reasonable accommodation was provided; and (4) she was qualified to do the job and/or was performing her job at a level that met Respondent's legitimate expectations.
Protected Class
Federal case law interpreting the American with Disabilities Act ("ADA") applies to claims involving a handicap arising under the FCRA. Garavito, 640 F. Supp. 2d 1374 (M.D.
Fla. 2009); Reis v. Univ. City Dev. Partners, 442 F. Supp. 2d 1238 (M.D. Ha. 2006); Wimberly v. Sec. Tech. Group, Inc., 866 So.
2d 146 (Fla. 4th DCA 2004). Thus, the term "handicap" in the FCRA is treated as equivalent to the term "disability" in the ADA.
42 U.S.C. § 12102 of the ADA sets forth the following relevant definitions:
Disability
The term "disability" means, with respect to an individual——
a physical or mental impairment that substantially limits one or more major life activities of such individual;
a record of such an impairment; or
being regarded as having such an impairment (as described in paragraph (3)).
Major life activities
(A) In general
For purposes of paragraph (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 (emphasis added).
Here, Petitioner's asthma constitutes a handicap that is protected under the FCRA because it is a physical impairment that substantially limits one of her major life activities—— specifically, breathing. Accordingly, Petitioner is a member of a class protected under section 760.10.
Subject to Adverse Employment Action
Case law interpreting Title VII of the Civil Rights Act of 1964 also has been held to apply to employment discrimination cases under chapter 760. The relevant provision of Title VII prohibits discrimination with respect to an employee's "compensation, terms, conditions, or privileges of employment."
42 U.S.C. § 2000e-2(a). Courts have interpreted this language to
require a plaintiff suing under section 2000e-2(a) to establish, as part of the prima facie case, that he or she suffered "adverse employment action." See Merriweather v. Alabama Dept. of Pub.
Safety, 17 F. Supp. 2d 1260, 1274 (M.D. Ala. 1998)(a term or condition of employment may be said to have been affected if there is a demonstrable adverse impact). The employer's action must impact the terms, conditions, or privileges of the plaintiff's job in a serious and material way, as objectively determined. Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001).
"Constructive discharge" is a type of adverse employment action that exists when an employer's biased treatment of an employee becomes so intolerable that it causes the employee to resign. Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518 (11th
Cir. 1991). To show constructive discharge, the employee must prove that his or her working conditions were so difficult or unpleasant that a reasonable person would have felt compelled to resign. Id.; Wardwell v. School Bd. of Palm Beach Cnty., 786 F.2d 1554 (11th Cir. 1986).
Here, Petitioner proved that Respondent's conduct in failing to address the Project jobsite conditions that caused her to suffer serious health effects constituted constructive discharge for purposes of establishing her prima facie case of employment discrimination under chapter 760. Any reasonable
person having Petitioner's handicap——asthma, precipitated or aggravated by exposure to cats——would have felt compelled to resign in the face of Respondent's apparent indifference and failure to take meaningful steps to address the offending circumstances. Accordingly, Petitioner has shown that she was subject to adverse employment action.
Disparate Treatment and Failure to Accommodate
Petitioner also has established that Respondent's failure to address the conditions created by the presence of the cats at the Project jobsite had the effect of subjecting Petitioner to treatment that was substantially different than Respondent's other similarly-situated employees were treated. Petitioner was Respondent's only employee who worked full-time at the Project jobsite; all other employees worked at other locations, so were not continuously exposed to the noxious conditions created by the presence of the cats at the jobsite.
To the extent other employees visited the jobsite, there is no evidence that they suffered from the same health effects caused by the presence of cats onsite. Respondent knew of Petitioner's asthmatic condition, was fully aware that it was precipitated or aggravated by the presence of cats at the jobsite, and failed to take effective measures to remedy the circumstances that made it physically impossible for Petitioner to do her job.
Further, Respondent failed to provide Petitioner reasonable accommodation regarding her handicap. Although Respondent represented that Petitioner would be allowed to work at another location, Petitioner was, in fact, required to return to the Project jobsite and Respondent did not implement any measures that would have allowed Petitioner to perform her job in another location. In essence, if Petitioner wanted to keep her job, she had to report to the Project jobsite.1/ Under these circumstances, it is concluded that Respondent treated Petitioner in a manner disparate from its other employees and failed to provide her reasonable accommodation.
Petitioner's Job Qualification
As discussed above, the evidence shows that Petitioner was fully qualified to perform the job of Document Control Supervisor, for which she had been hired. Indeed, Respondent's witness, Messam, acknowledged that Petitioner was a valued employee who performed her job well.
Prima Facie Case of Employment Discrimination
Based on the foregoing, it is concluded that Petitioner has established a prima facie case of unlawful employment discrimination by Respondent against Petitioner on the basis of her handicap.
Lack of Jurisdiction under Chapter 760, Florida Statutes
Notwithstanding the foregoing, it is concluded that Respondent is not an "employer" to which the FCRA applies. "Employer," for purposes of FCRA jurisdiction, 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." § 760.02(7), Fla. Stat.
As discussed above, Respondent presented unrefuted evidence establishing that it employed fewer than 15 employees for each working day in each of 20 or more calendar weeks in the current year in which the discrimination complaint was made (2013), or in the year preceding the discrimination claim (2012).
Under these circumstances, it is concluded that the FCHR lacks statutory jurisdiction under the FCRA to find any employment discrimination on the part of Respondent or to provide a remedy to Petitioner——notwithstanding that Respondent's conduct clearly would constitute unlawful discrimination if Respondent employed enough employees to trigger the jurisdictional threshold in section 760.02(7). The Florida Legislature has limited the applicability of the FCRA to entities having 15 or more employees under specified circumstances. The undersigned is required to follow the law and honor this limit, no matter how reprehensible she finds Respondent's conduct in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief for lack of jurisdiction under chapter 760, Florida Statutes.
DONE AND ENTERED this 20th day of February, 2015, in Tallahassee, Leon County, Florida.
CATHY M. SELLERS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2015.
1/ Employers are required to consider and possibly implement multiple types of reasonable accommodations for covered employees. See, e.g., Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998). 42 U.S.C. § 12111(9) provides that "reasonable accommodation" may include:
Employers are not required to provide an accommodation that would constitute an undue hardship. See Oconomowoc Residential Programs, Inc., 300 F.3d 775 (7th Cir. 2002). Factors that may be considered in determining whether an accommodation works an undue hardship include the nature and cost of the accommodation, overall financial resources of the facility involved in the accommodation, type of operation, geographic separateness, administrative, and other matters. Here, Respondent itself initially offered to relocate Petitioner to the corporate office as an accommodation.
Thus, it is reasonable to infer that this accommodation would not work an undue hardship on Respondent; in any event, even if it would constitute an undue hardship, Respondent did not offer or provide any other accommodation to Petitioner. Accordingly, the undersigned concludes that Respondent failed to provide reasonable accommodation to Petitioner.
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
