STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUNDRA JONES, )

)

Petitioner, )

)

vs. ) Case No. 98-2127

) ORANGE COUNTY PUBLIC LIBRARY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge Mary Clark held a formal hearing in the above-styled case on August 27, 1998, by video conference. The parties, their witnesses, attorneys, and court reporter participated from Orlando, Florida; the Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Aundra Jones, pro se

510 Auburn Avenue

Altamonte Springs, Florida 32714

Mary Wills, Esquire (appearing specially)

255 South Orange Avenue Suite 801

Orlando, Florida 32801-3452

For Respondent: Susan K. McKenna, Esquire

Garwood, McKenna, McKenna & Wolf, P.A.

731 North Garland Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her.

The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.

PRELIMINARY STATEMENT

On May 28, 1997, Petitioner executed a form stating that more than 180 days had lapsed since her charge of discrimination was filed, that she was withdrawing her charge, and that she was filing a Petition for Relief to proceed with an administrative hearing.

The case was forwarded on May 5, 1998, to the Division of Administrative Hearings for a formal hearing. The assigned Administrative Law Judge scheduled the hearing as reflected above, which date was consistent with the parties' suggestions in their Response to an Initial Order.

On August 26, 1998, Petitioner requested an emergency continuance based on her inability to get medical records from her doctor, her inability to send copies of her exhibits to the Administrative Law Judge in advance of the hearing, and her discovery of new information that might result in settlement.

The continuance was opposed by Respondent. In a telephone hearing on the motion in the afternoon of August 26, 1998, Petitioner reported that she had found her doctor and could get her records. The Administrative Law Judge explained that it was not necessary for her to send her exhibits to the Judge, but the court reporter could mark them at the hearing and mail them after the hearing. The Motion for Continuance was denied.

The motion was renewed the next day on Petitioner's behalf by an attorney, Mary Wills. When the motion was denied as untimely, Ms. Wills explained that she would make a special appearance only as she would not be available to attend the hearing for a full day.

Petitioner, Ms. Jones, testified in her own behalf and presented the additional testimony of Linda Gail Watson and Laurie Jean Fambro. Her exhibits, marked Petitioner's exhibits numbered 1-5, were received in evidence without objection.

Respondent presented the testimony of Carla Fountan, Debbie Moss, Wendi Jo Bost, and Aundra Jones. Respondent's exhibits numbered 3-20, 22, 25, 27, 29, 30, 34, and 36 were received into evidence without objection. Respondent's exhibit numbered 31 was marked for identification only and rejected as hearsay.

The transcript of the proceeding was filed on September 14, 1998. Over the objection of Petitioner, the deadline for filing proposed recommended orders was extended from October 14 to October 19, 1998. Petitioner submitted a letter summarizing her

position and a video tape. The video tape has not been considered. Respondent filed a proposed recommended order on October 19, 1998.

FINDINGS OF FACT

1. Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions.

2. Ms. Jones received her first personnel rating on

   
   

   March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6.

3. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary.

4. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some

   tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination.

5. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week.

6. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition.

7. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993.

8. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones.

9. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality.

10. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change.

11. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary.

12. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months.

13. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to

    her chronic tardiness.

    
    

14. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy.

15. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and

    she refused a transfer to a less physically-demanding position at the circulation desk.

16. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired.

17. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines.

18. Ms. Jones alleged that the head of circulation,

    
    

    Wendi Jo Bost, harassed and belittled her on account of her race and physical condition.

19. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request.

20. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style.

21. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling.

22. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness.

23. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia,

    except an inability to be out in the sun.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction in this case pursuant to Sections 120.569 and 120.57(1) and Chapter 760, Florida Statutes.

25. Section 760.10(1), Florida Statute, provides, in pertinent part:

    1. It is an unlawful employment practice for an employer:

       1. 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.

26. It is appropriate to interpret this statute by reference to federal case law under the Civil Rights Act of 1964 ("Title VII") and Americans with Disabilities Act ("ADA"). School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981); Smith v. Avatar Properties, Inc., 714 So. 2d 1103 (Fla. 5th DCA 1998).

    Discrimination Based on Race

    
    

27. Long-standing principles require that a Petitioner or plaintiff present a prima facie case of race discrimination due to employment termination, failure to promote, or other condition of employment, in the following elements:

    1. Petitioner is a member of a protected class;

    2. Petitioner was discharged from employment or was not promoted; and

       
       

    3. Similarly situated non-protected class employees were treated more favorably.

    
    

    St. Mary's Honor Center v, Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Texas Department of Community Affairs v.

    Berdine, 450 US 248, 101 S. Ct. 1089 (1981).

    
    

28. As an African-American, Ms. Jones is a member of a protected class; she also was indisputably not promoted and was fired. However, she failed to establish that other non-African Americans were treated more favorably. Although she named a couple of employees whom she felt were also tardy but were not terminated, she never substantiated her bare claim with any documents from the files of those individuals or their testimony. The library countered her claim with the names of several individuals, non-African Americans, who were terminated for violations of the same punctuality policy as Ms. Jones. At least one African American received a promotion sought by Ms. Jones.

29. Assuming that Ms. Jones had made her prima facie case, the library articulated a valid non-discriminatory basis for her non-promotion and termination. That Ms. Jones was tardy was uncontroverted. The instances where her tardiness was verified as related to a medical appointment were disregarded as a basis for discipline.

30. Ms. Jones neither proved that the reason for her non- promotion and termination was a mere pretext nor did she prove

    intentional discrimination by the library. See, McDonnell Douglas Corporation v. Green, 411 US 792, 93 S. Ct. 1817, 36 L. Ed 2d 668 (1997); St. Mary's Honor Center v. Hicks, supra.

    Ms. Jones was amply warned, yet continued to violate the punctuality policy for approximately two years after it was adopted by the library.

    Discrimination Based on Handicap

    
    

31. Under case law principles, Ms. Jones must prove the following in order to establish a prima facie case of handicap discrimination:

    1. She is handicapped within the meaning of the statute;

       
       

    2. She was otherwise qualified for her job; and

       
       

    3. She was denied a promotion or was terminated because of her handicap.

    
    

    Smith v. Avator Properties Inc., supra; Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).

32. A disability, or handicap, is defined as: a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; b) a record of such impairment; or c) being regarded as having such an impairment. 42 USC Section 12102(2), Americans with Disability Ad of 1990 (ADA); Skorup v. Modern Door Corporation, 153 F. 3d

    512 (7th Cir.) Major life activities are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 CFR Section 1630.2(i); Skorup v. Modern Door Corporation, supra. Not all physical impairments impact an individual's life to the degree that they constitute disability impairments under the ADA. Compare Aquinas v. Federal Express Corporation, 940 F. Supp. 73 (USDC, S.D. New York 1996), where the employee failed to prove that her fibromyalgia was disabling, with Robinson-Scott v. Delta

    Airlines, Inc., 4 F. Supp. 2d 1183 (USDC, N.D. Georgia 1998) where the employee proved her fibromyalgia was a disability but failed to prove she was "qualified" when she was chronically absent from work.

33. Ms. Jones did not prove that any of her major life activities are substantially limited by her fibromyalgia. Except for temporary, intermittent leaves of absence, she continued to maintain one, and sometimes more than one, job.

34. The library did not accommodate, nor was it required to accommodate Ms. Jones' tardiness. The employer was entitled to insist that its workers appear promptly at their shifts. The library adopted a strict policy, gave ample warning, and eventually enforced it against Ms. Jones. The library's actions in this case were not proven to be discriminatory.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library.

DONE AND ENTERED this 18th day of November, 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 18th day of November, 1998.

COPIES FURNISHED:

Aundra Jones, pro se

510 Auburn Avenue

Altamonte Springs, Florida 32714

Mary Wills, Esquire

255 South Orange Avenue Suite 801

Orlando, Florida 32801-3452

Susan K. McKenna, Esquire Garwood, McKenna,

McKenna & Wolf, P.A.

31 North Garland Avenue Orlando, Florida 32801

Dana Baird, Esquire

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32308-7082

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32308-7082

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002127

Orders for Case No: 98-002127