vs. ) CASE NO. 89-0985
Respondent. )
Upon due notice, this cause came on for formal hearing on October 25, 1989 in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
FOR RESPONDENT: Frank C. Amatea
Whether or not Respondent has committed an unlawful employment practice by terminating Petitioner due to the "handicap" of manic depression and/or bipolar disorder.
Petitioner presented the oral testimony of Dr. Fred Miley, Barbara Boos and Mark Wagner and testified on her own behalf. She had five exhibits admitted in evidence.
Respondent presented the oral testimony of Joe Krim and had six exhibits admitted in evidence, R-7 of which is the deposition of Asha Velisetty, M.D. R-2 was withdrawn.
Respondent's Motion to Dismiss at the close of Petitioner's case-in-chief was denied.
The parties' Prehearing Stipulation was admitted as HO Exhibit A and has been utilized to the extent appropriate in the preparation of this Recommended Order.
No transcript of proceedings was filed, but all timely-filed proposed findings of fact have been ruled on pursuant to Section 120.59(2) F.S. in the Appendix to this Recommended Order.
Petitioner suffers from bipolar disorder, a psychiatric disorder manifested by mood swings from elation to depression. When experiencing an episode of mania, the Petitioner is incapable of attending to a task for any length of time. She is also overly excited and exercises poor judgment. Dependent upon how expert medical physicians characterize this condition at various stages, it is either a type of manic depression or a psychiatric condition very similar in symptomatology to classic manic depression.
Petitioner began working for Respondent Mark III on March 20, 1985 as a seamstress. Her primary job function was running an industrial grade sewing machine for van conversions. She was a very good employee except for the occasions when she suffered bouts of mania. She was never subject to discipline, and during the periods of mania she experienced, her work-related problems were treated by the employer as a disability.
The first episode of mania occurred in April 1986. Prior to her hospitalization for mania, the Petitioner was drinking excessively and staying out from work. She was hospitalized in Monroe Regional Hospital from April 22, 1986 to April 29, 1986. Thereafter, she returned to work, but again began to experience problems and had to be hospitalized again from June 7, 1986 to June 13, 1986. After she came-out of the hospital, Respondent employer permitted her to work part-time (that is, fewer hours) for a period of several months until she was able to resume full-time responsibilities.
The employer's providing Petitioner part-time employment in 1986 was prompted by several factors. First, Petitioner was accorded the same accommodation any of Respondent's employees would receive under Respondent's general policy of allowing persons who have left for medical reasons to return to work if work is available. Second, this was also done personally and specifically for Petitioner at this time to accommodate her individual situation at that time. Third, the cyclical nature of Respondent's business of van conversions is such that June and July are a wind-down period toward the month of August when Respondent either closes down or lays off personnel for one to three weeks' duration. Fourth, Petitioner's team position had not been filled because "many girls," in the words of Respondent's representative Joe Krim, "float regularly."
Respondent's method of payment of seamstresses in Petitioner's category bears some discussion because it does not equate in every respect with the street definition of "full-time" and "part-time" labor. Petitioner worked as part of a group or team on production work. Teams are paid when each van is completed, and payment for each van is then divided among the whole sewing room, based upon hours individually worked. The entire team is needed to construct each vehicle and in Petitioner's absence, if they did not replace her, the rest of the team had to pick up her slack. Petitioner's rate of pay was determined on a weekly basis depending upon the amount of work produced by the team/group she worked with. During her period of full-time employment just prior to November 1987, Petitioner's weekly net pay, if averaged, would be $534.74. Pursuant to the foregoing arrangement, Petitioner received no pay during any of
the periods that she was out of work. The Respondent provided no sick leave or disability benefits and did not have a formal procedure for requesting a leave of absence.
After the manic episode(s) in 1986, the Petitioner returned to work full-time on or about July 1986 and experienced no problems for over a year. In November 1987, Petitioner again experienced an episode of mania. She began staying away from her job and disrupting her coworkers with overt sexual solicitation and lewd remarks when she was present.
Her immediate supervisor, Jon Lanning, requested a meeting with her sometime shortly before December 1, 1987. Petitioner's friend, Mark Wagner, accompanied her to that meeting. At that meeting, Mr. Lanning urged Petitioner to seek hospital treatment for her psychiatric problems. Mr. Lanning was unavailable to testify at formal hearing, having left Respondent's employment in October 1988. Petitioner's impression of Mr. Lanning's representations on behalf of Respondent were that her job would be held for her if she would seek medical help. Mr. Wagner's impression of this so-called "admission" on behalf of Respondent by its agent Lanning was that Lanning was saying Petitioner was a good worker and would be welcome to come back to work when she was able to work. It was obvious to Wagner from this meeting that "if [Petitioner] did not get the situation under control, they would have to let her go."
Petitioner was hospitalized from December 1, 1987 to December 6, 1987 at Charter Springs Hospital. Upon her discharge, she continued to take Loxitane, a prescription medication which can cause drowsiness if taken in excess, at the wrong times of day, or with alcohol. The use of alcohol is contraindicated in the presence of Loxitane. Although Respondent established alcohol and drug mixing by Petitioner back in 1986, the uncorroborated hearsay and inconclusive and uncredible repetition by witnesses of so-called "admissions" by Petitioner do not permit or support a finding that Petitioner was abusing alcohol or mixing alcohol with prescription medications in 1987- 1988.
Dr. Fred Miley, Petitioner's psychiatrist, signed a release permitting the Respondent to return to work on December 21, 1987.
Petitioner returned to work on December 22, 1987 but exhibited signs of drowsiness around the heavy sewing machinery she had to operate and was told by a superior to go home. At formal hearing, Petitioner acknowledged that she "did not need to be on the machine" in that condition. Petitioner stated that after her December 22, 1987 work attempt she had decided that the decision to go back to work was one, "I and I alone would have to make."
Petitioner did not report the problem of drowsiness to her psychiatrist at the time she had the Loxitane prescription renewed by him December 30, 1987 or at the time of her next office visit to him on January 12, 1988 except that she did complain to him on that date of being drowsy in the mornings.
At formal hearing, Dr. Miley opined that there was really no reason physically or psychiatrically why Petitioner could not have returned to work for Respondent on January 12, 1988; he merely felt pressured by the patient to defer her return-to-work date since she did not want to go back to work then and therefore he felt she could not return to work successfully. Dr. Miley did not know prior to formal hearing in this case that Petitioner's inability to work precluded an award to her of unemployment compensation benefits.
On January 12, 1988, Petitioner advised Dr. Miley she wanted to draw unemployment compensation and would receive it until June 1988; that Petitioner did not want to return to work at that time because Respondent had only part- time employment; and that Petitioner was working for herself, sewing free lance. In fact, Petitioner had filed an application for unemployment benefits on December 15, 1987, effective December 13, 1987. She had been denied unemployment benefits on January 4, 1988 because she was deemed by the unemployment compensation reviewer to be unable to work. "Unavailability for work" precludes the award of unemployment compensation benefits pursuant to Chapter 443 F.S.
On January 15, 1988, Dr. Miley filled out an unemployment compensation form stating that Petitioner had been unable to work from December 1, 1987 to January 15, 1988 and with the equivocal statement that Petitioner "may possibly be able to return to work in early February 1988" and it should be halftime (20 hours). Petitioner took the January 15 statement by Miley to Jon Lanning because Lanning had advised her he could not hold her job without a statement from her doctor. Sometime in January 1988 Petitioner approached Joe Krim, Mr. Lanning's superior, for help with Mr. Lanning about "getting on up."
At some time between the December 1987 hospitalization and February 3, 1988, Petitioner sent her employer a note asking to work night shift instead of day shift.
On February 3, 1988, the Petitioner initiated a meeting with Mr. Lanning for the purpose of inquiring whether she could return to work halftime. Mr. Lanning responded that she had been terminated the day before, February 2, 1988.
Petitioner had received no prior notice of her impending termination, and Barbara Boos' and Joe Krim's direct testimony confirm Petitioner's understanding that her team position had not yet been filled as of February 3, 1988.
At Petitioner's specific request, motivated by her intent at that time to pursue a social security disability claim, Mr. Lanning supplied her with a document dated February 3, 1988 stating:
Due to health reasons, [Petitioner] was unable to perform her duties and has not
returned to work since late November 1987. Petitioner later abandoned the social security appeal plan.
According to Mr. Krim's testimony, Petitioner was actually not rehired because she had not returned to work between November 1987 and February 1988.
He was apparently unaware at the time of her termination by Mr. Lanning on February 3, 1988 that she had tried to work for a few hours on December 22, 1987. Nonetheless, he emphasized that although December and January are not heavy production months, February is the month the Respondent must "gear up" for its heaviest production of the season and that he had to "get production up" at that time for that reason. Further, the purpose of Respondent's recent move to new quarters had been partly to eliminate a night shift which in 1986 had done little real production work and did mostly clean up and preparation for the day sewing teams. In February 1988, he had put all teams on full-time day work. He did not, therefore, have available part-time work (fewer hours) with which to accommodate Petitioner as he had in 1986.
Respondent had full-time work available for Petitioner in January and February of 1988. By February of 1988, the new "season" had commenced, Respondent had moved into a new plant, and Respondent could no longer accommodate halftime or part-time work arrangements.
On March 15, 1988 Dr. Miley completed an additional form stating that the Petitioner had been unable to work from December 1, 1987 to February 14, 1988.
Petitioner admitted that in February 1988, she wanted to go back to work only part-time but that Respondent had not established a part-time crew, as such. Petitioner also admitted not knowing if there were any part-time work available then. In light of her several conflicting representations under the circumstances related supra., the undersigned is not persuaded by Petitioner's representations at the formal hearing in the instant case that if she had been told by Mr. Banning directly that part-time employment was unavailable, she would have agreed to full-time employment on February 3, 1988.
Petitioner eventually received unemployment compensation from approximately March 1988 until September 1988. In November 1988, Petitioner secured employment very similar to that she previously held with Respondent, which employment she has continuously held with no further episodes of mania requiring psychiatric treatment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See Section 120.57(1) F.S.
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, nondiscriminatory 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)
The Petitioner alleged that she had been discriminated against in her employment, or terminated therefrom, by reason of a handicap.
Section 760.10(1)(a) F.S. is applicable to this case, provides as follows:
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. (Emphasis suppled)
Unfortunately, no direct definition of the term "handicap" is provided in the Florida statute. Therefore, decisions of the Florida Human Relations Commission must be consulted to ascertain the meaning that has been given this term. In Thomas v. Floridin Company, 8 FALR 5457, at 5458 (1986), the Commission defined "handicap" as follows:
In interpreting the term handicap, the Human Rights Act of 1977, the Commission has consistently chosen to give handicap a meaning in accordance with common usage.
Generally, "handicap" connotes a condition that prevents normal functioning in some way; a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental, or physical faculties. See also Kelly v. Bechtel Power, 633 F. Supp.
927, 931 (SD Fla. 1986).
Upon the facts as found, it appears conclusively that Petitioner's bipolar disorder constitutes such a handicap as has been contemplated by Section 760.10(1)(a) F.S.
However, in order to establish a prima facie case of handicap discrimination, Petitioner must show that: (1) she is handicapped, (2) she performed or is able to perform her assigned duties satisfactorily, and (3) she was terminated despite her satisfactory performance. McDonnell Douglas, supra; Wolfe v. Department of Agriculture and Consumer Services, 8 FALR 426 (FCHR September 27, 1985).
A large part of the problem with resolving this case's central issues devolves upon the alacrity with which everyone involved seems to have treated verified governmental forms.
Petitioner asserted to her employer that she could not work full-time, yet signed unemployment compensation papers saying she could do so. Dr. Miley felt Petitioner could go back to work in December 1987, or at least by January 12, 1988, but repeatedly wrote the unemployment compensation authorities and Petitioner's employer that Petitioner could not return to work yet. Apparently, these representations were made because Petitioner wanted to draw unemployment compensation rather than engage in full-time employment and neither she nor the physician initially realized that her inability to work precluded an award of unemployment compensation.
Then, Petitioner wanted federal (as opposed to employer-based) social security disability benefits, so the Respondent employer's agent Lanning agreeably provided a document that stated Petitioner was let go "for health reasons." Apparently, at that time, the employer did not comprehend the potential effect against its interest that such a statement might convey in the present "discrimination on the basis of handicap" - proceeding.
Putting the best possible light on all the contradictory assertions indulged in by the participants in this set of circumstances, it is possible to conclude that Dr. Miley continued to revise his date for Petitioner's return to work based on further information he gathered at each of her successive office visits so that as of February 2, 1988 he had last advised the Respondent employer that Petitioner only might be capable of halftime work (20 hours a
week) in early February. Also, as of February 2, 1988 Petitioner was requesting only part- time work, either as many hours as she could handle during the day shift with her old team or placement on a night shift that no longer existed and which had not been full-time when it had existed. Finally, the Respondent employer was facing its busiest period of the calendar year and needed to replace Petitioner on her team with someone full-time so as to get production up. Respondent's last direct contact with Petitioner had been December 22 when she was still unable to work on heavy machinery because of the side effects of her medication.
The 1986 and 1987-1988 situations were substantially different. In 1986, Petitioner was off work entirely for seven days, returned to work either full- or part- time for nearly a month, was off work entirely for six days, and then was able to return to part-time work for several months. In 1987-1988, she had been off work entirely for approximately 45 days and could only try to work part-time. In 1987-1988, there was no longer any opportunity for the type of part-time accommodation Respondent had been able to provide Petitioner in 1986, and the onset of this lack of versatility in Respondent was not directed at Petitioner but merely coincided with Petitioner's problems.
A clear reading of the employer's position, absent the pejorative meaning imputed thereto by Petitioner, is set forth in its February 3, 1988 "admission,"
Due to health reasons, [Petitioner] was unable to perform her duties and has not returned to work . . . (P-5, emphasis supplied; see FOF 18, supra)
Petitioner is handicapped, but she has failed to establish a prima facie case of discrimination because she has not shown she could meet, or for that matter even sought to return to, the current production level of Respondent. Section 760.10(8)(b) F.S. specifically recognizes that it is not an unlawful employment practice for an employer to observe the terms of a system which measures earnings by quantity or quality of production, and further that it is not unlawful to terminate an employee when he has failed to meet bona fide requirements for the job or position. There has been no showing that Respondent's production demands were unreasonable. Other employees met those demands, working full-time.
In the present scenario, the only ways Petitioner's handicap could have been accommodated was for Respondent to delay hiring a replacement indefinitely and thus require other team members to operate shorthanded indefinitely or to fill in with a "floater" indefinitely. Neither of these accommodations is reasonable.
Despite Petitioner's allegation that Respondent has discriminated against her on the basis of her handicap, the overwhelming weight of the evidence shows that the Petitioner has not established a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, nondiscriminatory reasons. Howard Johnson Co. v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987).
Upon 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 charge of discrimination against Respondent
DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0985
F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:
1, 2, 3, 5, 6, 7, 8, 9 and 10 are accepted.
4 is accepted with the exception of the last sentence, which rejected as not supported by the record. See FOF 7.
11 is rejected. This is legal argument which mischaracterizes both the burden to go forward and the burden of proof in this type of case.
Except for sentence 1 of 12 which is rejected as not supported by the record for the reasons set forth in the Findings of Fact and Conclusions of Thaw, 12 and 13 are accepted as modified to more clearly reflect the record evidence as a whole.
accepted.
3 and 9 are rejected as stated as not supported by the record as a whole.
7 is immaterial. See FOF 8.
12 and 13 are subordinate and unnecessary to the facts as found.
Frank C. Amatea Attorney at Law
Donald A. Griffin Executive Director
