STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE RIOS, )

)

Petitioner, )

)

vs. )

) CASE NO. 94-6653 DUVAL NEWS MANAGEMENT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on March 15, 1995, in Ocala, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael B. Staley

James P. Tarquin Attorneys At Law

2045 Northeast Second Street Ocala, Florida 33470

For Respondent: Allan P. Clark

Attorney At Law

3306 Independent Square

Jacksonville, Florida 32202 STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice through the discharge of Petitioner from her employment as a result of her handicap.

PRELIMINARY STATEMENT

On January 4, 1994, Petitioner filed a charge of discrimination against Respondent. Petitioner alleged that she had been terminated from employment with Respondent as a result of her handicap, a dislocated shoulder, cervical strain and cracked ribs suffered in an automobile accident. As a result of her accident, Petitioner was medically restricted to lifting no more than 20 pounds.

By order dated September 27, 1994, the Florida Human Relations Commission entered a Notice of Determination: No Cause.

On October 31, 1994, Petitioner filed a Petition For Relief with the Florida Human Relations Commission reiterating her claim of discrimination.

On November 29, 1994, the matter was referred to the Division of Administrative Hearings for conduct of formal administrative proceedings.

At the final hearing, Petitioner presented the testimony of three witnesses, including herself, and three exhibits. Respondent presented the testimony of three witnesses and three exhibits.

No transcript of the final hearing was provided by the parties. Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974.

   
   

2. Respondent employed 15 or more employees at all times pertinent to this proceeding.

   
   

3. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office.

   
   

4. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds.

   
   

5. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force.

   
   

6. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93.

   
   

7. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent.

   
   

8. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron

   Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation.

   
   

9. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office.

   
   

10. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination.

    
    

11. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree.

    
    

12. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation.

    
    

13. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds.

    
    

14. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

16. Respondent is an employer within the meaning of Subsection 760.02(7), Florida Statutes.

    
    

17. Subsection 760.10(1)(a), Florida Statutes, provides that it is unlawful 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 martial status.

    
    

18. Petitioner has alleged Respondent's violation of the foregoing statutory section by unlawful termination of Petitioner from employment because of her handicap and/or failing to reasonably accommodate that handicap.

    
    

19. A prima facie case of discrimination on the basis of handicap requires that Petitioner show that she was suffering from a handicap that substantially limited a major life activity; that she was qualified for the position held and could perform the essential functions of that position; and that there is evidence that the employer intended to discriminate in reaching its decision to terminate employment. Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).

    
    

20. In the instant proceeding, Petitioner has failed to establish a prima facie case. She demonstrated that she was handicapped due to her lifting restrictions not to exceed 20 pounds. There is, however, no competent evidence to support a finding that Respondent was motivated by discriminatory animus and terminated Petitioner's employment because of her handicap.

    
    

21. Assuming that Petitioner has presented a prima facie case, Respondent has articulated a legitimate, non-discriminatory reason for termination of Petitioner's employment. As demonstrated by the evidence presented at the final hearing, the reason for Petitioner's termination was Respondent's consolidation and reduction of its work force. In this regard, Respondent's offer to Petitioner of continued employment at the Jacksonville office or provision of severance pay is a consideration.

    
    

22. Petitioner failed to follow through on her inquiry regarding a part- time position in Respondent's warehouse, although the job was short term only and is now totally eliminated. She never requested accommodation to perform the job tasks of that position or provided Respondent with medical clearance of her restriction to lifting no more than 20 pounds, an essential requirement for a position requiring lifting 60 pounds or more. Accordingly, Petitioner cannot demonstrate an unlawful refusal by Respondent to provide reasonable accommodation.

    
    

23. The ultimate burden of persuasion remains with the complainant, inclusive of the ultimate issue of whether a handicapped person can perform essential functions of the position in question without endangering the health and safety of the individual or others. Brand v. Florida Power Corp., supra at pages 507, 512.

    
    

24. Accordingly, Petitioner has failed to demonstrate that her lay-off from her full-time position, or failure to be hired in the part-time position, constituted an unlawful employment practice by Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief.

DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings.

7. Adopted by reference.

8.-9. Rejected, weight of the evidence.

10. Rejected, relevance.

Respondent's Proposed Findings

1.-10. Adopted in substance, not verbatim.

COPIES FURNISHED:

Michael B. Staley James P. Tarquin Attorneys At Law

2045 Northeast Second St Ocala, FL 33470

Allan P. Clark Attorney At Law

3306 Independent Square

Jacksonville, FL 32202

Sharon Moultry Clerk Commission on Human Relations

325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-006653

Orders for Case No: 94-006653