STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA F. JENSEN, )

)

Petitioner, )

)

vs. ) Case No. 97-4838

)

SELMA'S COOKIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, conducted a formal hearing in the above-styled case on January 8, 1998. The hearing was by video-conference, with the parties and court-reporter participating from Orlando, Florida, and the Administrative Law Judge presiding from Tallahassee, Florida.

APPEARANCES

For Petitioner: Patricia Jensen, pro se

2301 Oak Drive

Longwood, Florida 32779

For Respondent: Selma Sayin, President and Owner Selma's Cookies

Post Office Box 160756

Altamonte Springs, Florida 32716 STATEMENT OF THE ISSUES

Ms. Jensen's charge of discrimination dated May 19, 1995, alleges that her employer, Selma's Cookies, discriminated against her on account of her disability when it fired her on December 5, 1994. The issue for determination in this proceeding is whether

that discrimination occurred and, if so, what relief is appropriate.

PRELIMINARY STATEMENT

On February 24, 1997, Ms. Jensen signed a Florida Commission on Human Relations (FCHR) form stating that because more than 180 days had elapsed since her charge was filed she wished to withdraw the charge and file a petition for relief to proceed with an administrative hearing pursuant to Section 760.11(4)(b) and (8), Florida Statutes. The case, designated FCHR No. 95- 3128, was forwarded to the Division of Administrative Hearings on October 16, 1997, for conduct of the hearing and a recommended order.

At the hearing each party testified on her own behalf and presented no other witness. Ms. Jensen submitted 2 exhibits, a letter and a packet of medical records, which were received in evidence without objection. Ms. Sayin submitted 2 exhibits, a packet of worker's compensation case documents and other documents filed in response to requests for information from the FCHR. These exhibits were also received in evidence without objection. As directed, the exhibits were sent to the Administrative Law Judge after the hearing. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Patricia (Patty) Jensen was 48 years old in November 1994, when she saw the "Help Wanted" sign in Selma's Cookies' window in Altamonte Springs, Florida.

2. Interested in learning new work and in need of earning extra cash Ms. Jensen entered the establishment to inquire about the job.

3. Her interview with Selma Sayin, the company owner, led Ms. Jensen to believe that she would be allowed to work part- time, that Christmas rush was near, and that the company needed someone on the phone to take orders and later to train to do baskets.

4. Ms. Jensen commenced work on or about November 18, 1994. She began working on the front line, taking baked cookie trays off the racks, removing cookies from the trays, putting cookies in bags, and performing similar functions. There were numerous holiday orders for Florida Hospital doctors and the company was busy. Ms. Jensen, working with students on some work-study program, packaged the cookies in tins and boxed the orders for delivery by United Parcel Service. This entailed lifting and weighing boxes and stacking them against a wall.

5. At her age, Ms. Jensen claimed, this was not the sort of work she was interested in learning. She had taught school and done other hard work, including operating her own business, a cleaning service for 20 years, but she wanted to learn other aspects of a business, like taking and filling orders. Ms.

   Jensen thought she might eventually have another business of her own, something like making up gift baskets.

6. Aside from dissatisfaction with the tasks she was given, Ms. Jensen also felt that Ms. Sayin was brusque and "talked down" to her employees. Still, when Barbara Johnson, who also worked on the packaging line and closed up at night, was terminated, Ms. Jensen accepted the offer of more hours, including the responsibility to close at night.

7. On December 1, 1994, the second evening of Ms. Jensen's expanded shift, she was closing up with one of the high school student employees. They had been told generally to "put everything away," but they did not know exactly what this meant. They tried to put cookies into tubs and the tubs into freezers. This was time-consuming and frustrating as the tubs did not fit easily.

8. Ms. Jensen estimates the tubs each weighed approximately

   
   

   30 pounds. As she and the high school student were lifting the last two to the top shelf, the girl suddenly let go and exclaimed, "I broke my nail." Ms. Jensen hung on to the tub until the girl could lift again. Ms. Jensen felt a burning sensation down her shoulder.

9. That night, the pain continued with burning, stinging and tingling in Ms. Jensen's arm and shoulder. She went to work the next day and another employee heard her groan as she

   performed her regular tasks. At the other employee's suggestion, Ms. Jensen went to Selma Sayin to tell her about the injury.

10. According to Ms. Jensen, when she told Ms. Sayin about the injury she was offered no sympathy nor a visit to a physician but rather was told only that others also got aches and pains from lifting and bending and she could take some pain medication.

11. Ms. Jensen called her own physician and when she was unable to reach him, she drove around on her lunch break and found a chiropractor's office open.

12. Both the nurse and the chiropractor spoke to Ms. Jensen but told her that, since her injury was a worker's compensation case, she needed to go through her employer's insurance carrier.

13. Ms. Jensen returned to work still in pain. Over the weekend, December 3 and 4, 1994, Ms. Jensen came in to talk with Selma Sayin. Ms. Jensen first asked if Ms. Sayin would be interested in investing in a business with her; later she asked whether Ms. Sayin's friends or clients might be interested in investing. The answer to both was "no", and Ms. Sayin asked that Ms. Jensen not approach her friends and clients.

14. On Monday, December 5, 1994, Ms. Jensen came late to work. Ms. Sayin called her in and terminated her. Ms. Jensen simply was not learning the job and was merely a seasonal employee who was not working out, according to Ms. Sayin. Moreover, Ms. Sayin was concerned that Ms. Jensen would try to

    take advantage of Selma's Cookies' clients by approaching them for funds for another business.

15. The December 1, 1994, injury was reported to the company's workers' compensation carrier on December 14, 1994, which is when Ms. Sayin claims that Ms. Jensen called to tell her, after her termination, that she had been injured and needed to get medical treatment. As authorized, Ms. Jensen was examined at Centra Care clinic on December 15, 1994, and was diagnosed with a cervical strain.

16. After the initial examination Ms. Jensen continued to receive treatment from the clinic and other health care providers for a variety of complaints which she claimed all emanated from her injury at Selma's Cookies on December 1, 1994. Treatments were primarily anti-inflammatory and pain medications and physical therapy.

17. The parties settled all further workers' compensation claims with a stipulation and lump-sum payment of $14,500 on November 10, 1995. According to the stipulation executed by both parties, Ms. Jensen achieved maximum medical improvement with a 5 per cent permanent impairment rating (Dr. Dancy) or a 0 per cent permanent impairment rating (Dr. Beckner).

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

19. Sections 760.01-760.11, the "Florida Civil Rights Act of 1992," provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's handicap unless absence of that handicap is an occupational qualification necessary for the particular employment at issue. See Sections 760.10(1)(a) and (8)(a), Florida Statutes.

20. "Employer" is defined as ". . . any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. . ." Section 760.10(7), Florida Statutes.

21. As Petitioner, Ms. Jensen has the burden of proving the discrimination that she claims. More specifically, she has the initial burden of proving that she was handicapped under the law, that she was qualified for the position apart from her handicap, and that she was denied employment because of the handicap. Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1996), Davidson v. Iona-McGregor Fire Protection and Rescue District, 675 So. 2d 858 (Fla. 2nd DCA 1996). Ms. Jensen's proof fails in several critical areas.

22. No evidence was produced to establish that Selma's Cookies was an "employer" as described in paragraph 20, above.

    If the company lacked the requisite number of employees it is not subject to the proscriptions of Section 760.10, Florida Statutes.

23. "Handicap" is not defined in Section 760.10, Florida Statutes, but Florida courts have adopted the federal definition at 29 U. S. Code, Section 706(8)(3) ("Section 504") for claims asserting handicap discrimination brought under Florida's Human Rights Act. See Brand, supra, Footnote 10. To prove that she is handicapped, therefore, Ms. Jensen needed to prove she had a physical or mental impairment which substantially limited one or more of her major life activities; had a record of such an impairment; or was regarded as having such an impairment. Examples of major life activities include caring for oneself, walking, seeing, speaking, breathing, learning, and working. Not every impairment that affects a major life activity is considered disabling; the limitation must be substantial. Davidson v. Midelfort Clinic, Ltd., 1998 WL 3360 (7th Cir. Wis), January 7, 1998.

24. Ms. Jensen did not have a "record" of a handicap at Selma's Cookies; she had an injury on the job. She returned to work after the injury and, with pain, continued working. Assuming that, contrary to her assertions, Selma Sayin knew of Ms. Jensen's injury at the time she terminated her, Ms. Sayin nonetheless did not consider Ms. Jensen as handicapped or

    disabled. Whatever the complications of Ms. Jensen's functioning after she left Selma's Cookies, at the time of her termination she was neither handicapped within the operative definition nor regarded as being so.

25. Even if Ms. Jensen had provided sufficient proof of her handicap, the employer articulated a credible non-discriminatory basis for the termination.

26. Ms. Jensen theorized that Selma Sayin fired her in order to avoid workers' compensation liability. This theory is not supported by the evidence. If it were, it may be actionable under workers' compensation law, but not necessarily under state or federal laws prohibiting employment discrimination. The purposes of each are unique and separate. Barry v. Burdines, 675 So. 2d 587 (Fla. 1996). Workers' compensation laws are designed to provide needed assistance (medical expenses and compensation for loss of earning capacity) when an employee is injured on the job; the anti-discrimination laws are designed to insure that an employee is permitted to realize his or her earning potential by eliminating prejudicial treatment of disabled persons. Hensley v. Punta Gorda, 686 So. 2d 724 (Fla. 1st DCA 1997).

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED: that the Florida Commission on Human Relations enter its Final Order dismissing the petition for relief and charge of discrimination against Selma's Cookies.

DONE AND ORDERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.

COPIES FURNISHED:

Patricia F. Jensen, pro se 2301 Oak Drive

Longwood, Florida 32779

Selma Sayin, President and Owner Selma's Cookies

Post Office Box 160756

Altamonte Springs, Florida 32716

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-004838

Orders for Case No: 97-004838