Judges: DONALD D. CONN
Agency: Commissions
Latest Update: Jul. 22, 1987
Summary: Petitioner's allegation that respondent discriminated against her because of her handicap fails because she did not establish that she was in fact handicapped.
87-1732STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PATRICIA NICHOLS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1732
) FIRST NATIONAL BANK OF CLEARWATER, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Clearwater, Florida on July 10, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Patricia Nichols, pro se
1870 Pine Ridge Way West G-2 Palm Harbor, Florida 33563
Respondent: James A. Martin, Jr., Esquire
Post Office Box 1669 Clearwater, Florida 34617
The issue in this case is whether the termination of Patricia Nichols (Petitioner) by the First National Bank of Clearwater (Respondent) on December 14, 1983 constitutes an act of unlawful discrimination. At the hearing, Petitioner testified on her own behalf and introduced four exhibits, and Respondent called five witnesses and introduced ten exhibits. No transcript of the hearing has been filed. The parties were allowed to file post-hearing proposed findings of fact, conclusions of law and memoranda within ten days of the hearing, and a ruling on each timely filed proposed finding of fact is included in the Appendix to the Recommended Order.
FINDINGS OF FACT
Respondent hired Petitioner as a commercial teller on July 14, 1983.
A two to three week training period was provided for all newly hired tellers, and during this training period the duties of tellers were explained to include specifically having to work at the drive-up window on a rotating or
fill-in basis.
During her training session, smoking was allowed and other trainees did smoke. Petitioner voiced no objection.
On her application for employment, Petitioner answered the following question in the negative: "Is there any type of work which your physical condition prohibits, or have you ever been advised by a physician not to perform certain types of work." Petitioner never informed Respondent's representatives
at the time she was hired, or during her training period, of any problems she had relating to smoking, or that she could not work in an area where smoking was allowed.
On October 5, 1983 Petitioner was assigned to observe the work performed by tellers at Respondent's drive-up window. She carried out this assignment without incident.
Petitioner was again assigned to observe and work at the drive-up window on November 18, 1983. This assignment was carried out without incident. However, at 2:30 p.m. Petitioner did ask to leave early due to illness and was allowed to leave. Petitioner did not specify the nature of her illness.
Respondent thereafter scheduled Petitioner for work at the drive-up window on December 2, 1983, but she called in sick.
On December 9, 1983 Respondent again scheduled Petitioner for the drive-up window, but she refused such assignment. In stating her refusal,
Petitioner complained about smoking in the drive-up window area as the basis for her refusal, and informed Respondent she would refuse all further assignments to work in the drive-up.
Three tellers work in the drive-up window area which is 23 feet by 10.6 feet by 8 feet (1950.4 cubic feet). It has a 24,000 BTU air conditioner which provides a total air exchange every 2.4 minutes. A private bathroom is located in the drive-up window area and it has an exhaust fan.
A meeting with Petitioner was held on December 12, 1983 in which Respondent explained to Petitioner accommodations it would make due to her objection about smoking in the drive-up area. Specifically, Respondent proposed to prohibit all smoking In the drive-up window area, except in the private bathroom which had its own exhaust fan. Petitioner refused to try this accommodation and again refused to return to the drive-up window. Petitioner stated her desire for a transfer to another branch which did not have a drive-up window.
On December 14, 1983 Petitioner met with the Vice President for Personnel, Linda Coles, who again explained the accommodation Respondent proposed, but Petitioner stated her refusal to try this accommodation. Thereupon, Coles terminated Petitioner.
At no time prior to her termination did Petitioner provide, or offer to provide, any medical statement relating to her ability to tolerate smoking in the work place.
Petitioner was terminated by Respondent due to her repeated refusal to accept work assignments in the drive-up window area, and due to her refusal to test accommodations, which appear reasonable, proposed by Respondent.
Evidence submitted by Petitioner of a pay raise which was to take effect on January 12, 1984, which she argues indicates she was doing a good job, is unpersuasive and irrelevant since it is dated November, 1983, prior to her repeated refusals to return to the drive-up area.
Statements submitted by Petitioner from physicians who examined her after her termination are irrelevant and do not constitute competent substantial evidence upon which a finding can be based. They were never submitted to
Respondent, and were based solely on medical histories provided to the physician by Petitioner and not upon their own diagnostic tests.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. 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 her 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, 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).
Petitioner has failed to establish a prima facie case of discrimination. She was terminated due to insubordination resulting from her refusal to work in the drive-up area. She expressed this refusal repeatedly. Reasonable accommodation was also refused by Petitioner.
Absolutely no evidence has been offered to establish that Petitioner was terminated due to any medical condition relating to smoke sensitivity. She provided no medical statements to Respondent prior to her termination and included no information about this on her application. Petitioner has failed to even establish that she has a medical handicap.
In this case, Petitioner alleges that Respondent has discriminated against her on the basis of her handicap and her medical condition. However, the overwhelming weight of evidence shows that the Petitioner cannot establish either that she is handicapped or a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, non-discriminatory reasons. Howard Johnson Co.
v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987). Respondent has articulated legitimate reasons for terminating Petitioner, particularly in view of her refusal to try these accommodations proposed by Respondent. Thus, the Petitioner's charge of discrimination should be dismissed.
RECOMMENDATION
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 22nd day of July, 1987, in Tallahassee, Florida.
DONALD D. CONN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1732
A ruling on an unsigned written statement submitted by Petitioner at the conclusion of the hearing, and termed a proposed finding of fact cannot be made since it fails to set forth proposed findings of fact, but is rather a conclusiory statement setting forth her position in the case.
Rulings on Respondent's Proposed Findings of Fact: 1-2. Rejected as irrelevant and unnecessary.
Adopted in Findings of Fact 1 and 11.
Adopted in Findings of Fact 2 and 4.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 6.
Adopted in Findings of Fact 9 and 10.
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 11.
Adopted in Findings of Fact 4 and 12. 13-14. Adopted in Finding of Fact 15.
Adopted in part in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
COPIES FURNISHED:
Patricia Nichols
1870 Pine Ridge Way West G-2 Palm Harbor, Florida 33563
Patricia Nichols
c/o Mrs. Andrea Vangelist
3 Quinn Street Havelock, NC 28532
James A. Martin, Jr., Esquire Post Office Box 1669 Clearwater, Florida 34617
Donald A. Griffin Executive Director
325 John Knox Road Bldg. F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird, Esquire General Counsel
325 John Knox Road Bldg. F, Suite 240
Tallahassee, Florida 32399-1925
Regina McGriff, Clerk
325 John Knox Road Bldg. F, Suite 240
Tallahassee, Florida 32399-1925
Docket for Case No: 87-001732
Orders for Case No: 87-001732
| Issue Date |
Document |
Summary |
|
Nov. 05, 1987 |
Agency Final Order
|
|
|
Jul. 22, 1987 |
Recommended Order
|
Petitioner's allegation that respondent discriminated against her because of her handicap fails because she did not establish that she was in fact handicapped.
|
