D. P., INC. d/b/a WESTERN ) SIZZLIN STEAK HOUSE, )
Respondent. )
Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on March 29, 1993 in Bradenton, Florida.
For Petitioner: Norma J. Nolan, Pro Se
For Respondent: Donna L. Kerfoot, Esquire
Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice.
Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Petitioner filed a Charge of Discrimination against the Respondent dated August 12, 1991, alleging Respondent had discriminated against her because of her handicap, artificial knee. Petitioner further alleged that Respondent failed to accommodate her handicap by leaving a stool for her use while performing her duties as a cashier and that a non-handicapped person was hired to replace her in the position of cashier. On May 15, 1992, the Florida Commission on Human Relations (Commission) entered its Determination: No Cause, as to Petitioner's previously filed Charge of Discrimination against Respondent. Thereafter, Petitioner filed a Petition For Relief with the Commission. On June 25, 1992, the matter was transmitted by the Commission to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct
of a hearing. Subsequently, the Respondent filed, among other pleadings, a Motion To Strike and a Motion To Dismiss. The Motion To Strike was granted. A ruling was reserved on the Motion To Dismiss to give Respondent an opportunity to respond to Petitioner's response to Respondent's Motion To Dismiss since the undersigned considered Petitioner's response as a Motion To Amend the Petition For Relief. Eventually, an order was entered denying Respondent's Motion To Dismiss and an order entered amending the Petition For Relief. The matter proceeded to hearing on the Amended Petition For Relief.
At the hearing, the Petitioner testified in her own behalf and presented the testimony of John Jeltema, Robert Nolan, Edward Nolan, Jean Miller and Pam Fletcher. Petitioner's exhibit 1 was received as evidence in this case.
Respondent presented the testimony of Jack Parrish, Kevin Wreford, Vaughn Peterson, Pat Childers, Gary Gardner and Petitioner. Respondent's exhibits 1, 2 and 3 were received as evidence in this case.
The parties elected not to have the proceeding transcribed, therefore, no transcript of the proceeding was filed with the Division of Administrative Hearings. The Respondent filed a Motion For Extension of Time for submission of the Proposed Recommended Orders on April 6, 1993. A hearing was held on that motion on April 7, 1993 and an extension of time was granted with the understanding that the time constraint for entering a Recommended Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their Proposed Findings of Fact and Conclusions of Law with the Division of Administrative Hearings within the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe.
The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility.
The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home.
Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation.
Wreford interviewed Petitioner for the position of part-time cashier in early 1991.
During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals).
Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change.
Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991.
At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6.
Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area.
At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period.
On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties.
On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant.
On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee.
Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties.
Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory.
Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent.
Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work.
There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position.
Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner.
There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred.
There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner.
There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Petitioner contends that she was unlawfully discharged by Respondent because of her handicap.
Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate
against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 421
U.S.C., 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So. 2d 103, (1 DCA Fla. 1981).
In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by a preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.
To present a prima facie case, the Petitioner must present facts which "...'raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors'...", Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, 450 U.S. 248. The prima facie case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44 (1977).
In order to establish a prima facie case, Petitioner must show: (1) she is a member of a protected class; (2) she is qualified; (3) she was discharged from the job by reason of her handicap and; (4) after discharge, the position was filled by someone outside the protected category. Cf. McDonnell Douglas, 411 U.S. 792. Petitioner has failed to prove a prima facie case of handicap discrimination.
First, Petitioner has failed to prove that she has a "handicap" as that term is defined by the Florida Commission on Human Relations (Commission) and the Florida courts under the Human Rights Act. This definition has been articulated as follows:
"Generally, a 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."
Lanham v. Seamless Hospital Products, 8 Fla. Admin. L. Rep. 4703, 4705 (FCHR 1986), quoting Fenesy v. GTE Data Services, Inc., 3 Fla. Admin. L. Rep. 1764-A (FCHR 1982). Unless Petitioner has proven that she fits within this definition as it has been refined and applied by the Commission and the courts, her complaint must be dismissed entirely. Harvey v. Alachua County Board of County Commissioners, 12 Fla. Admin. L. Rep. 2661, 2668 (FCHR 1990).
Secondly, Petitioner has failed to prove that she was discharged because of her handicap. Petitioner voluntarily resigned when she was told that the stool was not going to be put back in the cashier's area but was offered other accommodations. However, Petitioner alleges that her resignation amounted to a constructive discharge. The facts of this case will not support a
constructive discharge. Watson v. Nationwide Insurance Co., 823 F.2d 360, 361 (9th Cir. 1987); Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61 (9th Cir. 1980).
Finally, Petitioner has failed to prove that, after discharge, the position was filled by someone outside the protected category. The person filling the position vacated by Petitioner's resignation had a condition similar to Petitioner and, assuming that Petitioner's condition could be determined to be a handicap, that person's condition would also be considered a handicap.
However, assuming arguendo that Petitioner has established facts sufficient to raise the presumption of a prima facie case, the Respondent has articulated legitimate, nondiscriminatory reasons for its decision to discharge Petitioner. This dispute centers on Petitioner's refusal to accept Respondent's legitimate, nondiscriminatory business reasons for removing the stool from the cashier's area even though Respondent offered and made accommodations for Petitioner which allowed Petitioner to perform her duties without the stool notwithstanding the condition of her knee.
Petitioner argues that Respondent's stated reasons for her discharge (constructive) are merely a pretext for unlawful discrimination. Petitioner has failed to meet her burden to show that the reasons offered by Respondent for her leaving Respondent's employment were pretextual and that the Respondent's intent was actually discriminatory.
