vs. ) CASE NO. 86-4443
Respondent. )
A final hearing was held in this case on behalf of the Florida Human Relations Commission in Tampa, Florida on March 5, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Effie C. Tew, pro se
Respondent: Marshall R. Glass
At the hearing, Marshall R. Glass was accepted as a qualified representative on behalf of Respondent, U-Save Super Market, pursuant to Rule 22I-6.08, Florida Administrative Code. Effie C. Tew, Petitioner, testified on her own behalf and also called seven additional witnesses who had worked with her while she was employed by Respondent. Marshall R. Glass testified on behalf of Respondent. Petitioner introduced seven exhibits, and Respondent did not offer any exhibits. A transcript of the hearing was filed on March 16, 1987, and the parties were allowed to submit proposed findings of fact, conclusions of law and memoranda within ten days thereafter. However, neither party timely filed proposed findings of fact.
Petitioner was employed by Respondent from April 29, 1979 until she was terminated on November 8, 1983. From approximately December 1982 to the time of her termination, Petitioner was a deli clerk. No evidence was presented of her job classification or duties from April 29, 1979 to December, 1982.
On October 23, 1979 Petitioner was injured on the job while working for Respondent. She missed three weeks of work due to this injury.
Petitioner sustained a second accident on the job on September 14, 1982 when she tripped over a protruding metal bar and fell, injuring her back, hip, arm and neck. Although she did not immediately miss any work following this second accident, she was out of work from early February 1983 until late April, 1983 while she was under a doctor's care for her injuries. She was released by her doctor to return to work on or about April 21, 1983.
On September 29, 1983 Petitioner received a written warning from her supervisor for poor performance on the job, and violation of store procedures. Specifically, she was spending too much time with some customers while leaving other customers waiting, and was not properly making sandwiches pursuant to store procedures.
Petitioner received no raises or promotions during the time material hereto, and other employees were hired after her for the same job at a higher rate of pay. Other employees did receive pay raises during this time.
October 27, 1983 was Petitioner's last day of work. She went for a myelogram on the next day, her day off, and thereafter was told by the deli manager to take the rest of the week off. When she returned to work on November 7, 1983 she was told she had been replaced. On November 8, 1983 her supervisor met with her and officially terminated her. Petitioner testified the reason she was given for her termination was she "was not doing her work" and her supervisor "could no longer have her around" the store. Petitioner disputes these reasons for her termination.
As a result of her injuries, Petitioner had to wear a back brace on the job, and she was in pain. However, she testified she always did her job, carried out all assigned tasks, including cleaning an 8 foot oven, assisted her co-workers in their jobs, and was always courteous and attentive to customers. Seven former co-workers called by Petitioner testified on her behalf and confirmed her testimony. Arnold Banals found no fault with Petitioner as a co- worker and tried unsuccessfully to get her a raise; Pam Meers had no problem working with Petitioner, and stated she was always on the job and courteous to customers; Betty Barrett described Petitioner as a hard worker and dependable; Mark Frierson considered Petitioner one of the best employees in the store who went cut of her way to help customers and co-workers; Mark Bradstock testified that Petitioner never took breaks and never complained about her back pain; Christina Dahl confirmed that Petitioner was a good worker and testified she cleaned the 8 foot oven spotless; and Sherrie Myers, Petitioner's daughter, Mark Frierson and Christina Dahl all confirmed they were making more than Petitioner and received raises, although Petitioner was employed by Respondent longer than them.
Respondent admitted, through the testimony of Marshall Glass, that Petitioner was a conscientious worker who was good to some customers and co- workers. However, Glass testified Petitioner's injuries did adversely affect her job performance, and therefore, he stated that the termination was due solely to Petitioner's inability to do her job.
A medical statement from Lawrence S. Cohen, M.D., dated November 28, 1983, which was approximately three weeks after her termination, states she had been cut of work for a month with shingles and a sprained ankle, and further, required brace immobilization. It indicates she would be returning to work in two days, but would require re-evaluation in 6 weeks. This statement contradicts Petitioner's position that she was able to work in early November,
1983. In fact, she had to have a myelogram, was suffering from shingles and a sprained ankle, and was immobilized with a back brace at that time.
By November 30, 1984 Petitioner's back and hip condition associated with her injuries had deteriorated to the extent that Tomas E. Delgado, M.D., expressed the opinion that she had reached maximum medical improvement but could still not bend, lift more than 15 pounds, or stand for more than one hour at a time nor more than a total of four hours in a day.
In September, 1985 C. Jin Whang, M.D., found Petitioner had reached maximum medical benefit. He advised her not to lift anything over 40 pounds and to avoid excessive lower back and neck movement.
The medical diagnosis, nature and extent of her injuries is unclear since the medical statements submitted in evidence conflict in certain respects. Nevertheless, it is clear that from at least early November, 1983, Petitioner has been unable to stand for extended periods, lift, or perform movements associated with her former position of deli clerk.
At the time of her termination in November, 1983, the evidence establishes that Petitioner was carrying out her job responsibilities in a satisfactory manner as far as her co- workers were concerned. However, medical statements confirm Respondent's testimony that her condition had deteriorated, and she could not perform her job in a manner that was satisfactory to her employer.
Petitioner was 52 years of age at the time of her termination. There is no competent substantial evidence that she was terminated due to unlawful discrimination based on age.
Other than the injuries discussed above, there is no competent substantial evidence of any handicap, nor of any unlawful discrimination based on a handicap.
Regarding Petitioner's charge that Respondent unlawfully discriminated against her due to her injuries, and resulting disability sustained while on the job, Petitioner has not established a prima facie case of discrimination. Respondent has articulated a nondiscriminatory reason for the termination of Petitioner on November 8, 1983. The evidence does establish that Petitioner was unable to perform her job duties at the time of her termination, and therefore Respondent had legitimate, nondiscriminatory reasons for terminating her. Petitioner has not shown that she could have continued to perform her job duties during and after November, 1983, and therefore has not established that her termination at that time was pretextual.
Petitioner has received workers' compensation benefits for lost wages from November 9, 1983 to the present. On the basis of this, Glass asserted, as Respondent's Comptroller, that Petitioner has sustained no economic loss even if unlawful discrimination occurred. Petitioner offered absolutely no evidence regarding her rate of pay with Respondent, the extent of her workers' compensation benefits and any economic loss she has sustained. She did not refute or in any way contest Glass' assertion, and admitted she has received workers' compensation benefits for all lost wages. Therefore, there is no basis for any finding of economic loss.
Respondent does not contest that it is an "employer" with the meaning of Florida Human Rights Act of 1977, Chapter 760, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.
The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains this initial burden, the Respondent would then have to establish some legitimate, non- discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256.
Petitioner has failed to establish a prima facie case of discrimination. She was given a written warning about unsatisfactory performance approximately one month prior to her termination, and prior to this had received no raises or promotions. Although Petitioner was well liked and highly thought of by her co-workers, her employer clearly had concern about her level of performance which preceded its decision to terminate her. In addition, medical statements received in evidence, as well as Petitioner's own admission that she has been receiving workers' compensation benefits for all lost wages from November 9, 1983, confirm Respondent's testimony that she was not able to perform her job on, and after, the date of her termination.
The Petitioner alleges that Respondent has discriminated against her on the basis of her disability by refusing to allow her to return to work on November 8, 1983. However, Petitioner has not established a prima facie case of discrimination. The evidence clearly shows that the Respondent's actions were motivated by legitimate, non-discriminatory reasons concerning her job performance. Additionally, Respondent has convincingly rebutted any allegation of pretextual treatment by establishing that she has been receiving workers' compensation benefits for the entire period of time since her termination. Thus, the Petitioner's charge of discrimination should be dismissed.
Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent.
DONE AND ENTERED this 30th day of March, 1987 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1987.
Effie C. Tew
Marshall R. Glass Post Office Box 1808 Tampa, Fl 33601
Donald A. Griffin Executive Director
