vs.
Respondent.
) Case No. 02-0404
A final hearing was conducted in this cause on May 15, 2002, in Defuniak Springs, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
Vernis & Bowling of Northwest Florida, P.A.
The issues are as follows: (a) whether this case should be dismissed due to Petitioner's failure to file a timely Petition for Relief as required by Rule 60Y-5.008, Florida Administrative Code; and if not, (b) whether Respondent discriminated against
Petitioner based on her handicap by creating a hostile work environment, failing to accommodate her disability, and causing Petitioner's constructive discharge contrary to Section 760.10, Florida Statutes.
On May 14, 2001, Petitioner Joyce Vann (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Wal-Mart Stores (Respondent) had discriminated against Petitioner due to her heart condition by creating a hostile work environment, failing to accommodate her disability, and causing her to resign her position as a cashier.
On or about October 31, 2001, Petitioner filed an Election of Rights form requesting an administrative hearing pursuant to Section 760.11(8), Florida Statutes. FCHR referred the case to the Division of Administrative Hearings on February 5, 2002.
The only documents attached to FCHR's referral were Petitioner's Election of Rights form and her Charge of Discrimination.
On February 25, 2002, the undersigned issued a Notice of Hearing. The notice scheduled the case for hearing on April 16, 2002.
On March 6, 2002, Respondent filed a Motion to Continue. After a telephone conference with the parties, the undersigned
issued an Order Granting Continuance and Re-scheduling Hearing, setting the hearing for May 15, 2002.
At the commencement of the hearing, Respondent objected to the hearing on the grounds that Petitioner had not filed a Petition for Relief with FCHR. Upon questioning, Petitioner stated that she did not remember ever receiving a Petition for Relief form from FCHR and that she had signed and returned all documents that FCHR sent her. The undersigned directed Petitioner to obtain a copy of the Petition for Relief from FCHR, if one was available, and file it with the Division of Administrative Hearings within ten days after the final hearing. The undersigned reserved ruling on Respondent's request to dismiss the case on procedural grounds with leave for Respondent to address the issue in its proposed recommended order.
During the hearing, Petitioner testified on her own behalf and presented the testimony of three witnesses. Petitioner offered 12 exhibits that were accepted into evidence.
Respondent presented the testimony of six witnesses.
Respondent offered 11 exhibits that were accepted into evidence.
On May 17, 2002, Respondent filed an Affidavit of Lynn Steel, paralegal for Respondent's counsel. According to the Affidavit, Ms. Steel contacted FCHR after the hearing, confirming the following: (a) FCHR furnished Petitioner with a copy of the Petition for Relief form after Petitioner filed her
Election of Rights; (b) Petitioner did not file a Petition for Relief with FCHR before the hearing; (c) Petitioner contacted FCHR after the hearing asserting that she never received a Petition for Relief form from FCHR; and (d) FCHR furnished Petitioner with a second copy of the Petition for Relief form after the hearing.
On May 20, 2002, FCHR filed a Notice of Filing. A copy of a Petition for Relief received by FCHR on May 16, 2002, was attached to the Notice.
A transcript of the proceeding was not filed with the Division of Administrative Hearings. As of the date of issuance of this Recommended Order, Petitioner had not filed a proposed recommended order. Respondent timely filed Proposed Findings of Fact and Conclusions of Law on May 28, 2002.
Petitioner is a white female. She applied for a cashier's job at Respondent's store in Defuniak Springs, Florida, on March 30, 2000.
Petitioner's job application indicated that she was available to work on any shift and any day of the week, including days, evenings, nights, Saturdays, and Sundays. As a general rule, Respondent hires people that are available to work on an as needed basis. However, there is no persuasive evidence
that Respondent always refuses to hire people who are not available to work at all times.
On April 13, 2000, Petitioner began working for Respondent as a part-time cashier. She only worked a few days before she suffered two heart attacks on the same day, neither of which occurred while she was at work. Her medical records indicate that she began having heart problems in 1996 and that a stent was implanted in an artery of her heart on April 21, 2000.
On April 23, 2000, Petitioner requested a medical leave of absence, expecting to return to work on or about June 1, 2000. Respondent granted this request.
On May 1, 2000, Petitioner's doctor certified that Petitioner had a diagnosis of "S/P Inferior Wall Myocardial Infarction." The doctor stated that Petitioner could return to work and resume normal activity pending a follow-up evaluation on May 30, 2000.
On June 13, 2000, Petitioner's doctor certified that Petitioner could anticipate returning to work on July 17, 2000. Petitioner was scheduled to repeat a heart catheterization on July 14, 2000. Medical records indicate that Petitioner underwent a stent-implant in an artery of her heart at that time.
On July 21, 2000, Petitioner tendered her resignation because she did not expect to return to work. Respondent
accepted Petitioner's resignation, indicating on the exit interview form that she was eligible for rehire. The exit interview form also indicates that Petitioner had qualified for supplemental security income (SSI) benefits due to her heart condition.
Petitioner recovered from the surgery and applied for re-employment with Respondent on September 9, 2000. Petitioner sought a full-time position, indicating on her second employment application that she was available to work at any time. She specifically requested as many hours as Respondent could give her. Petitioner confirmed her availability to work with no job restrictions during her job interview.
On October 26, 2000, Petitioner completed a Form 8850, Pre-screening Notice and Certification Request for the Work Opportunity and Welfare-to-Work Credits. On this form Petitioner certified that she had advised Respondent of her receipt of SSI benefits for any month ending within the last 60 days.
Respondent rehired Petitioner to work as a peak-time (part-time) cashier beginning on October 30, 2000. Petitioner accepted the position even though she knew that working as a cashier involved a lot of stress and would require her to lift items as heavy as 50 pounds.
Shortly after being re-hired, Petitioner actively sought more work hours in addition to her regular schedule. Respondent accommodated Petitioner's request by letting her work on the floor as a stock clerk, as well as a cashier.
Approximately two weeks after returning to work, Petitioner required hospitalization again due to a heart attack. She was discharged from the hospital on November 27, 2000. Petitioner's doctor instructed her to rest and limit her activity, including walking, heavy exercise, and/or lifting more than five pounds, resuming normal activity on the second day as "tolerated."
On December 2, 2000, Petitioner was admitted to the emergency room again after work. Petitioner's doctor recommended that Petitioner not return to work until she was evaluated again on December 11, 2000.
Petitioner's doctor released her to return to work on December 12, 2000. Respondent's employees and management were aware of Petitioner's heart condition but they were not aware that Petitioner had a disability requiring accommodation. The doctor's release-to-work contained no medical restrictions.
During December 2000, Petitioner worked as a cashier and on the customer service desk receiving items returned by customers. The latter job occasionally required Petitioner to handle heavy items.
On January 9, 2001, Respondent gave Petitioner a performance appraisal. The appraisal indicated that Petitioner worked well with others, assisted in raising funds for charity, and participated in associate functions.
Respondent's performance standards include "below," "meets," or "exceeds" expectations. Petitioner's performance appraisal indicates that she "met" performance expectations in all areas except one area of productivity. She received a "below" expectations rank as to the number of items she scanned per hour. Based on the overall appraisal, Petitioner received a pay raise commensurate with the "meets" expectation criteria.
On February 6, 2001, Petitioner's doctor excused her from work for a week due to illness. The doctor indicated that Petitioner could return to work on February 9, 2001, if she was feeling well. Otherwise, Petitioner would need another medical evaluation before she returned to work.
On February 12, 2001, Petitioner's doctor excused her from work until February 14, 2001. Petitioner's medical records indicate that Petitioner had bronchitis, asthma, and flu-like symptoms.
Around the middle of February 2001, Petitioner requested that she be scheduled to work the night shift only two nights per week. Respondent's associate schedules, which were computer-generated weeks in advance of the scheduled work, show
that Respondent granted her request. Petitioner was scheduled to work after 6:00 p.m. as follows: (a) two times from February 24, 2001, to March 2, 2001; (b) one time from March 3,
2001, to March 9, 2001; (c) one time from March 10, 2001, to
March 16, 2001; and (d) two times from March 17, 2001, to
March 23, 2001.
Respondent posts daily or weekly schedules to make corrections to the computer-generated schedules. Two such undated handwritten schedules indicate that Petitioner was scheduled to work a day shift on two days.
Petitioner actually worked after 6:00 p.m. as follows:
one time from February 10, 2001, to February 23, 2001;
one time from February 24, 2001, to March 9, 2001; and
no times from March 10, 2001, to March 23, 2001.
On or about February 20, 2001, Petitioner told her supervisor that she planned to resign on March 1, 2001. In a subsequent handwritten note dated February 27, 2001, Petitioner advised Respondent that she intended to quit work on March 23, 2001. The note states that she was leaving due to illness but wanted to return when she was well.
On or about March 8, 2001, a customer in an express checkout lane, limited to 20 items, made a written complaint to Petitioner's supervisor that Petitioner had been rude. Specifically, the customer alleged that Petitioner had expressed
her objections to the customer having more than 20 items when the customer had exactly 20 items. The customer claimed that Petitioner's comments were embarrassing.
Petitioner's supervisor gave Petitioner a verbal coaching. The supervisor reminded Petitioner of Respondent's policy that the customer was always right. During the hearing, Petitioner stated that she agreed with this policy.
Under protest, Petitioner complied with the supervisor's request for Petitioner to write an apology to the customer. The written apology stated that Petitioner was sorry if she hurt the customer's feelings and asked the customer to please go to Petitioner's checkout line again. The supervisor also wrote an apology to the customer.
On March 12, 2001, Petitioner underwent a medical examination at Doctors Medical Center of Walton County due to chest pains radiating into her right arm. The medical history taken at that time indicates that Petitioner's medical history included two heart attacks and five stents in her heart arteries.
Petitioner's doctor wrote an excuse for Petitioner missing work on March 13, 2001. The note states that Petitioner could return to work on the following Monday, March 19, 2001.
On March 21, 2001, Petitioner had an altercation with a customer service manager. The incident occurred because
Petitioner and another cashier were scheduled for breaks about the same time. The manager allowed the other cashier to go on break before Petitioner because the co-worker's line was empty and Petitioner had customers in her line.
Raising her voice, Petitioner protested that she was due a break before her co-worker. The manager told Petitioner to stop harassing him. Petitioner subsequently complained to her supervisor. Petitioner admitted during the hearing that she got "sassy" with the customer service manager on March 21, 2001.
The morning after the altercation with the customer service manager, Petitioner told her co-workers that she intended to have the store manager fired because she was having him investigated. As a result of her comments, Petitioner was invited to the rear office where she spoke to the regional personnel manager on the phone. During that conversation, the personnel manager told Petitioner she could call him at home if she felt more comfortable doing so. The personnel manager excused Petitioner from work for the next two days with pay through March 23, 2001, the effective date of her resignation.
Petitioner's final exit interview is dated March 22, 2001. On the exit interview form, Petitioner indicated that she quit her job because she did not like the way the store manager ran the store and due to her health. Petitioner indicated that the termination was voluntary due to her health.
After Petitioner signed the exit interview form and left the store, Respondent's staff had further conversation with the regional personnel manager and completed a section on the form reserved for the employer. This section indicates that Petitioner had a bad attitude and, if she had not resigned, Respondent would have terminated Petitioner.
Competent evidence shows that Petitioner did have a bad attitude after being rehired. She always took the position that she was right and did not want to communicate with certain managers.
Petitioner understood that she could only work for six months without losing her SSI benefits. Her resignation on March 23, 2001, occurred just prior to the end of the six-month period.
Due to her health problems, Petitioner has not worked since she resigned her job with Respondent. She has not looked for work and does not intend to do so because she continues to receive SSI.
During the hearing, Petitioner discussed several incidents in support of her allegations of discrimination based on her disability. However, Petitioner admitted that her memory was bad and that she could not recall the specific dates involved.
On several occasions, Petitioner complained to Respondent's district manager about the way the store manager ran the store. For example, Petitioner complained that someone was selling Avon products in a fitting room. The district manager determined that there was no merit to this allegation.
On another occasion, Petitioner complained to Respondent's district manager that the store manager had made an inappropriate religious comment to Petitioner. Upon subsequent investigation, the district manager determined that the store manager had made one such comment to another employee but not to Petitioner. The store manager was advised to refrain from making such comments in the future.
Petitioner testified that if an employee was not a member of the store manager's "holy roller" church, the employee was nothing in the opinion of the store manager. Petitioner's testimony that she was treated differently from other employees because she would not "suck up" to the store manager and because she was not a member of his clique is not persuasive.
Petitioner told the district manager that she did not like the way the store manager criticized employees in the office. However, Respondent's policy is to provide praise in public and constructive criticism in private.
Respondent has a policy to send employees flowers when they are hospitalized. Petitioner complained to Respondent's
district manager that the store did not send her flowers when she was in the hospital.
According to Petitioner, the store manager told her at some point in time that she was going to die and where she was going to be buried if she did not quit her job. The greater weight of the evidence indicates that the store manager did not make this statement.
Petitioner presented testimony that Respondent's managers called her a whiner. Petitioner also presented testimony that the assistant store manager stated that she would not baby-sit dummies (retarded people). The most persuasive evidence indicates that Respondent's managers never made these comments. To the contrary, Respondent does not have a policy against hiring people with disabilities. In fact, at the time of the hearing, Respondent had another disabled person working at the store in Defuniak Springs, Florida.
Sometime after Respondent rehired Petitioner in October 2000, she began to experience chest pains while she was working as a cashier. Petitioner's co-workers were aware of Petitioner's problem but there is no competent evidence that Respondent's managers were aware of her specific symptoms. In fact, none of Respondent's managers who testified at the hearing could remember Petitioner complaining of chest pains while she was working as a cashier.
When Petitioner requested permission to leave work due to illness, she was told to wait for relief, then to close her register and go to the office to check out. The process took about 20 minutes.
At the time in question, Petitioner drove herself to the doctor's office. She did not request anyone to drive her and no one offered to do so.
After being examined by her doctor, Petitioner 's doctor recommended that she travel to the hospital by ambulance. Petitioner refused this recommendation and elected to call a friend to take her to the hospital in Defuniak Springs, Florida. Eventually, Petitioner was placed in intensive care and transferred to a hospital in Pensacola, Florida, where she underwent the replacement of a stent due to its collapse.
There were times when Petitioner was not allowed to leave her register before a break to take her medication; however, she was allowed to have water at her register so that she could take her medication at her workstation. On the one occasion that Petitioner could not locate her nitroglycerine prescription, she was told to finish with a customer before going to the store's pharmacy to obtain a new prescription.
During the hearing, Petitioner testified that she was not allowed to operate machinery while taking some of her prescribed drugs. Therefore, Petitioner did not take those
medications when she went to work. There is no evidence that Respondent was aware that Petitioner was not taking prescribed medications in order to work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
Chapter 760, Florida Statutes, does not specifically refer to a "Petition for Relief" or require the timely filing of a "Petition for Relief" in order to confer jurisdiction on the Division of Administrative Hearings after receipt of timely request for hearing. Chapter 760, Florida Statutes, refers exclusively to complaints filed by aggrieved persons.
Rule 60Y-5.008, Florida Administrative Code, sets forth the procedure for filing a Petition for Relief from an unlawful employment practice. Specifically, Rule 60Y-5.008(1), Florida Administrative Code, requires a complainant to file a Petition for Relief within 30 days of service of a Notice of Failure of Conciliation, a Notice of Determination of No Reasonable Cause, etc. Rule 60Y-5.008(2), Florida Administrative Code, states as follows:
(2) For good cause shown, the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful
Employment Practice, provided the motion for extension of time is filed within the 30-day period prescribed by Rule 60Y-5.008(1).
Petitioner's Petition for Relief was not filed with FCHR or the Division of Administrative Hearings until after the hearing on the merits. Even so, the Petition for Relief should not be dismissed for several reasons. First, the time period set forth in Rule 60Y-5.008(1), Florida Administrative Code, is not jurisdictional; therefore, it is subject to equitable tolling. Coleman v. City of Jacksonville, 16 FALR 786 (1993). Second, a disputed factual question exists whether Petitioner ever received a copy of the Petition for Relief form until after the hearing. Third, FCHR referred the case to the Division of Administrative Hearings with a copy of the Charge of Discrimination and Election of Rights form, but without a Petition for Relief. Fourth, Respondent did not raise the issue of Petitioner's failure to file the Petition for Relief until after the hearing commenced. Finally, Respondent has shown no prejudice as a result of Petitioner's failure to file a timely Petition for Relief. Accordingly, Respondent's motion to dismiss is denied.
Florida law prohibits employers from discriminating against employee on the basis of a handicap. Section 760.10(1)(a), Florida Statutes. The Florida Civil Rights Act is modeled after Title VII of the Civil Rights Act of 1964;
therefore, case law interpreting Title VII is also relevant to Florida Civil Rights Act cases. Florida Department of Community
Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973.
If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate non- discriminatory reason for the actions it took. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089,
67 L.Ed.2d 207 (1981). The respondent's burden is one of production, not persuasion, as it always remains the petitioner's burden to persuade the fact finder that the proffered reason is a pretext and that the respondent intentionally discriminated against the petitioner. Burdine, 450 U.S. at 252-256.
In the instant case, Petitioner alleges that Respondent discriminated against her based on her handicap by subjecting her to a hostile work environment that failed to accommodate her disability and caused her constructive discharge. Petitioner did not present any direct evidence or statistical proof of the alleged discrimination. Therefore, in order to prove a prima facie case of hostile work environment,
Petitioner must establish the following elements: (a) she is a member of a protected group; (b) she was qualified to perform the job; (c) she was subjected to unwelcome harassment; (d) the harassment complained of was based on her handicap; and (e) the harassment affected a term, condition or privilege of employment in that it was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S. Ct. 2399 (1986); Sparks v. Pilot Freight
Carriers, Inc. 830 F.2d 1554 (11th Cir. 1987).
The first question is whether Petitioner presented evidence that she was disabled. A disability is defined as:
(a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of such an impairment; or (c) being regarded as having an impairment.
42 U.S.C. Section 12102(2); 29 C.F.R. Section 1630.2(g)(I). A
physical impairment standing alone is not necessarily a disability. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). "Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. Section 1630.2(g)(I).
Petitioner met her burden of proving that she was disabled. She suffered at least two heart attacks and had five
stents implanted in the arteries of her heart. She is qualified for SSI benefit as a result of her physical limitations. Her heart problems are well documented.
The second question is whether Petitioner was qualified to perform the job for which she was hired. A qualified individual with a disability is one who can perform the essential functions of the job with or without reasonable accommodation. 42 U.S.C. Section 12111(8). The term "essential functions" means the fundamental job duties of the employment position. 29 C.F.R. Section 1630.2(n)(1).
In this case, the totality of the evidence indicates that Petitioner was qualified to work in her regular position as a retail cashier. This finding is based primarily on her performance appraisal in which she met all but one expectation.
The third issue is whether Petitioner was subjected to harassment. Petitioner did not meet her burden in this regard because there is no merit to her claims that Respondent's managers: (a) refused to accommodate her request to limit her night shifts to two or three nights a week; (b) required her to write an unjustified apology to a customer; (c) gave other cashiers unjustified preference in the timing of breaks;
called her a whiner and made inappropriate comments about religion and the likelihood of her death and place of burial;
criticized her in public or in private contrary to company
policy; (f) refused to let Petitioner close her lane and leave the store immediately, knowing that she was suffering chest pains; (g) refused to offer her a ride home when she was ill; and (h) refused to let her take medication or visit the pharmacy. Respondent may have hurt Petitioner's feelings by neglecting to send her flowers when she was in the hospital but standing alone, this oversight does not constitute harassment.
The next question is whether the harassment of Petitioner was related to her disability. It is unnecessary to make this determination because there is no persuasive evidence that Respondent harassed Petitioner.
Finally, no action or inaction by Respondent is responsible for affecting a term, condition, or privilege of employment that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Rather, Respondent made every effort to accommodate Petitioner's disability by (a) rescheduling her night shifts; (b) allowing her to take scheduled breaks as soon as her line could be closed; (c) allowing her to have water at her workstation to take her medications; and (d) allowing her to visit the pharmacy as soon as she finished with a customer.
Respondent is not expected to provide accommodations that Petitioner never requested. Petitioner's co-workers may have known that Petitioner was suffering chest pains while she
was working as a cashier but there is no persuasive evidence that Respondent's managers or Petitioner were aware of the seriousness of her condition on that occasion. Petitioner did not request a ride home and did not accept the doctor's recommendation that she go to the hospital in an ambulance.
Petitioner may have fared better as a stock clerk but the only time she requested to work in that position was to increase her hours, not to obtain relief from working as a cashier. An employer is not required to create a position or "bump" another employee from a position in order to accommodate an otherwise qualified individual with a disability, especially when the employee does make such a request. Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 934 (7th Cir. 1995).
Constructive discharge requires a finding that the employer made an employee's working conditions so intolerable that the employee is forced to resign. Buckley v. Hospital Corporation of America, Inc., 758 F.2d 1525 (11th Cir. 1985). Additionally, the employee must show that the intolerable work conditions were motivated by the employer's unlawful bias. Saltzman v. Fullerton Metals Co., 661 F.2d 647 (7th Cir. 1981). The employee must show that the employer's action would compel a reasonable person, in the employee's same situation, to resign. Garner v. Wal-Mart Stores, 807 F.2d 1536 (11th Cir. 1987). Nothing could be further from the truth in this case.
Petitioner knew that dealing with the public in the retail business was stressful. She admitted that she could not take all of her medications on the days that she worked. She knew that lifting heavy objects, an essential function of a cashier, would possibly exacerbate her condition. Petitioner may have voluntarily resigned because of concerns for her health and for keeping her SSI disability benefits but she did not quit her job because she was forced or encouraged to leave due to Respondent's bias against people with heart conditions.
Assuming arguendo that Petitioner met her prima facie
burden, Respondent presented legitimate, non-discriminatory reasons for the actions it took or did not take. Most importantly, Respondent presented evidence that Petitioner had a bad attitude. For example, Petitioner's complaints about the store manager were without merit and her rude treatment of a customer and the customer service manager was unjustified.
Respondent had good cause to recommend that Petitioner not be rehired. Respondent did not terminate Petitioner's employment but the company would have been justified in doing so.
Petitioner presented no evidence that the reasons Respondent gave for any of its actions and inactions are pretextural and that Respondent intentionally discriminated against her. Respondent followed company policy in granting Petitioner weeks of excused sick leave. Whenever possible,
Respondent made allowances for Petitioner's handicap. Petitioner has not carried her burden of ultimate persuasion.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 10th day of June, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2002.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest
Florida, P.A.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway
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.
