JOHN M. DICKSON,
vs.
Respondent.
) Case No. 03-4673
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on February 27, 2004, in Pensacola, Florida.
For Petitioner: John M. Dickson, pro se
For Respondent: Richard L. Ruth, Esquire
The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of
Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et
seq.
individual complaint of disability discrimination against the Respondent with the Florida Commission on Human Relations (the “FCHR”) pursuant to the Florida Civil Rights Act of 1992, Section 760.01, et seq.; and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 12101 et seq. (“ADA”).
On September 12, 2003, the FCHR issued a “Notice of Determination: No Cause” in this matter, finding that no reasonable cause existed to determine that an unlawful employment practice had occurred.
On or about October 16, 2003, the Petitioner filed a Petition for Relief pursuant to Section 760.11(8), Florida Statutes. In the petition, the Petitioner claimed that he was discriminated against, and ultimately terminated from the Respondent’s employ, on the basis of an alleged disability, diabetes.
This case was referred to the Division of Administrative Hearings by the FCHR on December 8, 2003. Following discovery by the parties, this hearing was convened.
At the hearing, the Petitioner testified himself and offered ten exhibits into evidence, all of which were admitted, except Petitioner’s Exhibit 2. Respondent presented the testimony of Ms. Jacqueline Lewis, Ms. Carolyn Miller, and Mr. Rodney Snyder, and offered 17 exhibits into evidence, all of which were admitted.
A Transcript was filed on March 26, 2004. The Respondent timely submitted a Proposed Recommended Order that was considered in the preparation of this Recommended Order. The Petitioner did not submit a proposed recommended order.
References to statutes are to Florida Statutes (2003), unless otherwise noted.
The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002.
At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder.
The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts.
The Petitioner suffers from diabetes.
On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment.
The Petitioner’s diabetes did not interfere with his ability to secure full-time employment.
The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks.
During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.”
The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation.
The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent.
The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do.
The Petitioner complained about supplies, or the lack thereof, at the store.
The Petitioner admitted that there were tasks he simply refused to perform.
The Petitioner had several problems with his co- workers and managers.
On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.”
During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process.
On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance.
Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition.
On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated.
The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan.
In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude.
Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security.
The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication.
The note made no mention of the Petitioner’s diabetic condition.
The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks.
The Petitioner claimed that he was not always given the breaks he needed to regulate his medication.
Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible.
Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management.
Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position.
Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter."
All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter."
On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers.
Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002.
The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates.
The Petitioner believes that his co-workers and supervisors were aware of his diabetes.
No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes.
Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes.
Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes.
Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes.
Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard.
The Petitioner was able to work a full eight-hour shift while employed by the Respondent.
The Petitioner was able to perform the duties of his maintenance position when he held that job.
At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area.
When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes.
The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so.
Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks.
The Petitioner has plans to rewire his house by himself.
The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. § 120.57(1), Fla. Stat.
The Petitioner is an “aggrieved person” and the Respondent is an “employer” within the meaning of Subsections 760.02(10) and (7), Florida Statutes, respectively. Section
760.10 makes it unlawful for the Respondent to discharge or otherwise discriminate against the Petitioner based on an employee’s disability.
In a disability discrimination case alleging discriminatory discharge, in order to establish a prima facie case of discrimination, a petitioner must demonstrate that
(1) he is physically disabled; (2) he is a “qualified individual,” meaning he can perform the essential functions of the job in question with or without reasonable accommodation; and (3) he was discriminated against because of his disability. Lucas v. W.W. Granger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
No direct evidence of discrimination exists in this case. A finding, if any, must be based on circumstantial evidence.
The burden of proof in discrimination cases involving circumstantial evidence is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Federal discrimination law may be used for guidance in evaluating the merits of claims arising under Chapter 760. Tourville v. Securex, Inc., 769 So. 2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co-op.,
Inc., 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).
Florida courts have recognized that actions for discrimination on the basis of disability are analyzed under the same framework as Americans with Disabilities Act (ADA) claims. Chanda v. Englehard/ICC, 234 F.3d 1219 (11th Cir. 2000). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Chanda, Id. at 1221. In this matter, at no time has the Petitioner alleged that he is restricted in the manner in which he can perform any major life activity.
If the Petitioner succeeds in making a prima facie case, the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its conduct. If the Respondent carries this burden of rebutting the Petitioner’s prima facie case, the Petitioner must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell Douglas, supra at 802-03.
Mere proof of a physical impairment is not proof of a disability under the ADA. 29 C.F.R. Part 1630, App. Section 1630.2(j); Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 911 (11th Cir. 1996); Hamm v. Runyon, 51 F.3d 721, 726 (7th Cir. 1995). Furthermore, when assessing whether a physical impairment constitutes a disability under the ADA, the
mitigating effects of the body’s own accommodating measures must be considered. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555,
566 (1999); Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999) (“[w]e see no principled basis for distinguishing between measures taken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body’s own systems”).
Applying the Supreme Court’s analysis in Sutton, controlled diabetes has been found not to constitute a disability under the ADA. See, e.g., Orr v. Wal-Mart Stores,
Inc., 297 F.3d 720, 724 (8th Cir. 2002). Additionally, under the model of proof set forth above, the Petitioner must demonstrate by competent substantial evidence that the employer in question actually knew of the Petitioner’s claimed disability. See, e.g., Jovanovic v. In-Sink-erator Division of Emerson Electric Co., 201 F.3d 894, 898-899 (7th Cir. 2000); Jones v. United Parcel Service, 214 F.3d 402, 408 (3d Cir.
2000).
Applying the required standard of proof, the Petitioner has failed to establish any claim of unlawful discrimination. First, the Petitioner has failed to establish that he is a qualified individual with a disability recognized by the ADA. The Petitioner’s candid and honest testimony at hearing clearly established that, despite his diabetes, he was
able to control his medical condition with medication and without insulin injections. Further, the Petitioner has been able to work full-time throughout his tenure with Wal-Mart; has operated equipment; planned to start other business activities; and was able to engage in all other major life activities with no substantial limitation caused by his diabetes. In short, the Petitioner wholly failed to present any evidence of any substantial limitations on any major life activity. Under the rationale of Sutton and Orr cited above, the Petitioner’s claim must fail since he did not have a disability recognized under the ADA at the time of his employment with Wal-Mart.
In addition, the Petitioner failed to present any competent substantial evidence that any of his supervisors or of the Respondent’s decision-making employees were aware of the Petitioner’s alleged disability, his diabetes. Although the Petitioner testified that everyone at Wal-Mart knew of his diabetic condition, no evidence was presented that the Petitioner’s co-workers or supervisors had any knowledge of his illness. The Petitioner attempted to establish that the mere fact that the prescriptions for his diabetes medications were filled at Wal-Mart should prove that the Respondent was aware of his diabetes. The greater weight of the evidence, however, proved that, due to Florida’s medical confidentiality laws, no
employees of the Respondent had any knowledge of the nature and type of prescriptions filled at the Respondent’s pharmacy.
Finally, the Petitioner failed to produce any competent substantial evidence to support his contention that his employment was terminated by his claimed disability. The Petitioner had a substantial history of disciplinary problems at Wal-Mart, all arising from poor work performance on his part and from arguments with his supervisors and co-workers. The Petitioner admitted at hearing that he frequently took issue with the policies and actions of his supervisors and co-workers, on grounds that had nothing to do with his medical condition and everything to do with his attitude towards his work. The Petitioner repeatedly refused to perform his assigned tasks both in his position as a maintenance man and as a "People Greeter." All of the Petitioner’s shortcomings as an employee were significantly documented by the Respondent and were wholly unrelated to his diabetes.
In conclusion, the Petitioner presented no credible and persuasive evidence that the Respondent’s articulated reasons for its actions were a pretext for discrimination. There is no evidence to support a finding that the Respondent violated Chapter 760, Florida Statutes, or the ADA.
RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief.
DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
John M. Dickson
Richard L. Ruth, Esquire Ford & Harrison LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
