STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MINCHI TORRES, )
)
Petitioner, )
)
vs. ) Case No. 00-3018
) SWEET TOMATOES RESTAURANT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on January 4, 2001, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Scott Charlton, Esquire
Clark, Charlton, Martino & Borders, P.A.
3407 West Kennedy Boulevard Post Office Box 24268 Tampa, Florida 33623-4268
For Respondent: Donald E. Cope, Esquire
Fine, Boggs, Cope & Perkins, LLP
225 South Cabrillo Highway Suite B-200
Half Moon Bay, California 94019 STATEMENT OF THE ISSUES
The issues presented for decision in this case are whether Respondent violated Section 760.10, Florida Statutes, as
alleged, by discriminating against Petitioner in her employment on the basis of her sex and her condition of pregnancy, and, if that violation occurred, what relief is appropriate.
PRELIMINARY STATEMENT
On March 15, 2000, Petitioner filed a charge of discrimination against Respondent, Sweet Tomatoes Restaurant ("Sweet Tomatoes"), with both the U.S. Equal Employment Opportunity Commission ("EEOC") and the Florida Commission on Human Relations ("Commission"). On April 28, 2000, the EEOC sent Petitioner a form letter commonly referred to as a "right to sue" letter, notifying Petitioner that the information obtained through the EEOC's investigation did not establish a violation of the statutes and that she had the right to pursue the matter further via lawsuit. On June 9, 2000, Petitioner filed her Petition for Relief with the Commission, alleging that Sweet Tomatoes denied her the opportunity to perform light duty as prescribed by her physician due to her pregnancy and that this denial constituted a violation of the Florida Human Rights Act of 1992 and 1997, as amended. On July 24, 2000, the Commission referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal administrative hearing. The matter was scheduled for hearing on November 14, 2000, but was
continued to January 4, 2001, pursuant to the unopposed motion of Sweet Tomatoes, based on the unavailability of two essential witnesses on the earlier date.
At the final hearing, Petitioner testified on her own behalf and presented the testimony of Kimberly Mullins and Lawrence Reid, employees of Sweet Tomatoes at the times relevant to this proceeding. Petitioner's Exhibit 1 was admitted into evidence. Sweet Tomatoes presented the testimony of Wendy Jewell, its director of human resources; Robert Wilson, its director of operations for the Tampa/Sarasota area; and James Smith, a production manager for Sweet Tomatoes in Brandon at the times relevant to this proceeding. Sweet Tomatoes' Exhibits 1 through 10 were admitted into evidence.
A Transcript of the final hearing was filed with the Division of Administrative Hearings on January 25, 2001. The parties filed Proposed Recommended Orders on February 12, 2001.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
Petitioner, Minchi Torres, was 34 years old at the time of the hearing. She is married and has three children.
In January 1995, she began working for Garden Fresh Restaurant Corporation, d/b/a Sweet Tomatoes Restaurant, a restaurant chain with its main corporate offices in California. Sweet Tomatoes operates restaurants in Brandon, Carrollwood, and Sarasota, Florida. Ms. Torres began her employment as a manager trainee in the Carrollwood restaurant.
After completing her training, Ms. Torres transferred to the Brandon restaurant and began work as a service manager late in the summer of 1995. The service manager in a Sweet Tomatoes restaurant supervises the "front of the house": the area where guests are seated and the salad bar. After about a year and a half, Ms. Torres was promoted to production manager. The production manager supervises the "back of the house," i.e., the kitchen area. The production manager also performs inventories, orders food and supplies for the restaurant, and monitors expenses.
While working as production manager in the Brandon store, Ms. Torres became pregnant. She had complications, and her physician allowed her to undertake only "light duty," which was inconsistent with her position as production manager. Ms. Torres was placed on unpaid maternity leave, effective April 1, 1997.
During her maternity leave, Ms. Torres approached Robert Wilson, the local director of operations for the Sweet
Tomatoes chain. She told Mr. Wilson that she needed income and asked if there was anything she could do with her limited capabilities. At the time, Mr. Wilson had an opening for a "technical shopper," a person who evaluates the restaurants for service, quality, and cleanliness. This was a contractual position, paid on an hourly basis. Mr. Wilson offered Ms.
Torres the position, and she accepted.
Ms. Torres worked part-time in the technical shopper position from April 1997 until shortly before she gave birth to her daughter on July 1, 1997. She then reverted to unpaid maternity leave. She requested and was granted an extension of the maternity leave and returned to work on September 13, 1997. She reported to the Tampa restaurant and was promoted to assistant general manager.
Ms. Torres remained an assistant general manager in Tampa until September 1998, when she was promoted to general manager of the Brandon restaurant. In late 1999, Ms. Torres again became pregnant. She developed problems with this pregnancy in November 1999. She expressed to Mr. Wilson concern that she might lose the baby. Ms. Torres requested that she be relieved of her general manager's duty and placed in the less arduous position of service manager, at a different restaurant. Mr. Wilson accommodated her request, moving her to a service manager's position at the Carrollwood
restaurant, but leaving her salary at a general manager's level.
Ms. Torres' health problems kept her out of work from late November until December 27, 1999. Mr. Wilson testified that from November 15, 1999, through March 8, 2000, Ms. Torres was able to work a total of approximately four weeks.
On February 9, 2000, Ms. Torres was at work when she began to have contractions. She left work and went directly to her physician's office. The physician determined that Ms. Torres required bed rest while he monitored her progress. She remained off work for the remainder of February.
Ms. Torres returned to work on March 4, 2000, pursuant to a written release signed by her physician. The release specified that Ms. Torres should spend "limited hours on [her] feet," and that her work day should be limited to 6 hours of "limited activity" or "light duty." The job description for Ms. Torres' position as service manager called for a minimum shift of 10 hours, five to eight hours of which are spent standing or walking.
Ms. Torres gave the release to the general manager of the Carrollwood restaurant, who relayed it to Mr. Wilson. The general manager told Ms. Torres that she would need to have a meeting with Mr. Wilson before resuming her duties.
Ms. Torres met with Mr. Wilson at 10:30 a.m. on March 3, 2000. She requested light duty with limited time on her feet, consistent with her medical release. She asked if she could perform the technical shopping job she had done during her previous pregnancy. She also suggested performing marketing and auditing for the company or traveling to the various restaurants and updating their files.
Mr. Wilson responded that none of these positions were available. He told Ms. Torres that accommodating her would require him to create a position for her, or to displace people who were already performing the jobs, and that he could not do either one. Mr. Wilson also noted that none of the jobs suggested by Ms. Torres were consistent with her actual position as a service manager in a restaurant.
At the hearing, Ms. Torres testified that, though she requested a change in her duties, she also told Mr. Wilson that she was capable of performing as a service manager if that was her only option. She estimated that the job required her to spend three to four hours on her feet and that she could delegate duties and sit down occasionally. Mr. Wilson told her that the duties of a service manager were inconsistent with the medical release calling for "light duty."
At the hearing, Mr. Wilson testified that he believed Ms. Torres could not perform the functions of a service manager. He stated that he was "torn," because Ms. Torres wanted to work, but he had nothing for her that did not conflict with the terms of her medical release. Mr. Wilson consulted Wendy Jewell, at that time the employee relations manager for Sweet Tomatoes.
Ms. Jewell testified that, after Mr. Wilson apprised her of the situation, she investigated Ms. Torres' request. She independently confirmed that there were no openings for the type of light duty requested by Ms. Torres. She also consulted the company's vice-president for human resources and in-house legal counsel. She discussed the matter with Ms. Torres and told her that accommodating her request would mean displacing someone already in a job or creating a new job, which Sweet Tomatoes could not do.
Ms. Jewell, in consultation with Sweet Tomatoes' director of employee benefits, made the decision not to accommodate Ms. Torres' request for light duty and to place Ms. Torres on unpaid leave under federal Family Medical Leave Act ("FMLA"). Ms. Jewell testified that this decision was consistent with the company's practice regarding employees who are unable to perform the essential elements of their jobs.
Ms. Jewell pointed out that this decision was consistent with the company's actions toward Ms. Torres in 1997, when she was also placed on unpaid maternity leave. Ms. Jewell stated that the only distinction was that in 1997 the company happened to have an opening for a technical shopper, paid by the hour on a contractual basis, and that in 2000 there was no such opening.
Ms. Torres was placed on FMLA leave, effective February 15, 2000, and continuing until April 31, 2000. She requested and was granted an extension of her leave until September 1, 2000. She delivered her child on June 29, 2000. Ms. Torres returned to work on September 11, 2000, as a production manager. She was dismissed by Sweet Tomatoes in November 2000, for reasons unrelated to her pregnancy.
Ms. Torres claimed that Sweet Tomatoes' failure to accommodate her situation in 2000 was discriminatory because the company had made such an accommodation early in 1999 for a male employee, James Smith.
In January 1999, James Smith was production manager in the Brandon restaurant. Ms. Torres was the general manager and his immediate supervisor.
Early in January, Mr. Smith fell through the ceiling of his attic at home. He suffered four fractured vertebrae and two herniated discs. He was off work for virtually the
entire month of January, taking either vacation days or sick leave. At some point in January, he attempted to return to work, but was sent home by Mr. Wilson because he was in obvious pain. Mr. Smith returned to work with a "light duty" physician's release on February 7.
Mr. Smith's light duty release specified that he perform no heavy lifting and work for a period of six to eight hours. He followed these instructions until March 8, 1999, when he was transferred to the Sarasota restaurant as general manager. At that time, he resumed a full work schedule without restrictions.
Ms. Torres testified that during the period of Mr.
Smith's light duty restriction, he was unable to perform his duties as production manager. She stated Mr. Wilson asked her to "see what we can do for him," meaning that she should find work that Mr. Smith could do consistent with his physician's release. She had Mr. Smith perform office work, such as preparing schedules and placing orders. Ms. Torres testified that Mr. Smith worked about five hours per day during this period. Mr. Smith was allowed to take time off during the work day to attend physical therapy.
Mr. Wilson testified that he was unaware that Ms.
Torres had extended an accommodation to Mr. Smith and was unaware whether Ms. Torres had consulted the human resources
department of Sweet Tomatoes about allowing Mr. Smith to work while injured. He did not recall telling Ms. Torres to make work for Mr. Smith. Mr. Wilson testified that the only accommodation he made for Mr. Smith was to allow him to attend physical therapy, because it was available only during working hours.
Mr. Wilson testified that he knew Mr. Smith had been injured in a fall, but that he became aware of the extent of Mr. Smith's injuries only when he came to the restaurant and saw Mr. Smith attempting to work, in obvious pain. Mr. Wilson recalled that this occurred on or about January 21. Mr. Wilson testified that he ordered Mr. Smith to seek further medical attention and to obtain a medical release before returning to work. Mr. Smith's testimony corroborated Mr. Wilson's version of this event.
Ms. Torres' testimony on the question of Mr. Smith's treatment by Sweet Tomatoes is not entirely reliable. She changed her testimony as to when and how long Mr. Smith was on light duty. Her testimony was inconsistent as to whether
Mr. Wilson asked her if she had work that Mr. Smith could do or whether Mr. Wilson ordered her to create work for Mr.
Smith. Mr. Wilson's version of events was more consistent with the documentary evidence and is therefore credited.
Even if Ms. Torres' testimony were credited on this point, it would not establish that Mr. Smith enjoyed an accommodation denied to Ms. Torres. Mr. Smith's period of light duty lasted for a period of three to four weeks, whereas Ms. Torres would have required light duty from March 2000 until the completion of her pregnancy, a period of approximately four months. For that reason, the two situations are not comparable.
In summary, the evidence established that Sweet Tomatoes was able to accommodate Ms. Torres' limitations in 1997, because there happened to be an opening for a technical shopper. The evidence established that Sweet Tomatoes made a good faith effort to accommodate Ms. Torres in 2000, but that no work was available and that Sweet Tomatoes reasonably declined to create a position or to displace other workers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Subsection 120.57(1), Florida Statutes.
Subsection 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or fail to hire or otherwise discriminate against an individual because of the individual's sex or handicap.
As established by relevant state and federal case law, Petitioner has the burden of proving the alleged violation, including the burden of initially presenting a prima facie case of discrimination. Once the prima facie case is presented, Respondent must articulate some legitimate nondiscriminatory basis for its action. Petitioner must then prove that Respondent employer's reason is merely a pretext. Texas Dept. of Community Affairs v. Burdine, 450 US 248 (1981); McDonald Douglas Corp. v. Green, 411 US 792 (1973).
In this proceeding, Petitioner failed to prove a prima facie case of discrimination. Ms. Torres was not similarly situated to Mr. Smith, whose back injury required only a brief period of light duty. Accommodating Ms. Torres' request would have entailed a four-month period during which she would not have been able to perform the essential elements of her position.
Sweet Tomatoes proved a legitimate nondiscriminatory basis for its actions. Its actions toward Mr. Smith, and toward Ms. Torres herself in 1997, established that the company was willing to accommodate an employee handicap where there was legitimate, productive work the employee could perform. In 2000, the company had no desk work available for Ms. Torres. Petitioner presented no evidence that Sweet Tomatoes' reason for denying her request was a mere pretext.
Petitioner failed to prove that she was discriminated against because of her sex or her condition of pregnancy or other impermissible basis.
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 complaint and Petition for Relief.
DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida.
___________________________________ LAWRENCE P. STEVENSON
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001.
COPIES FURNISHED:
Donald E. Cope, Esquire
Fine, Boggs, Cope & Perkins, LLP
225 South Cabrillo Highway Suite B-200
Half Moon Bay, California 94019
Scott Charlton, Esquire Clark, Charlton, Martino &
Borders, P.A.
3407 West Kennedy Boulevard Post Office Box 24268 Tampa, Florida 33623-4268
Dana A. Baird, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Azizi Coleman, Agency Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
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 should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 06, 2001 | Agency Final Order | |
| Feb. 20, 2001 | Recommended Order | Petitioner failed to demonstrate that employer`s action of placing her on leave under the Family Medical Leave Act was discriminatory, where evidence established that her difficult pregnancy prevented her from performing the essential elements of her job. |
