vs.
Respondent.
) Case No. 03-4678
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearing, on February 12, 2004, in Ocala, Florida.
The issue is whether Petitioner has been subjected to an unlawful employment practice, namely, discrimination on the basis of her age, gender, religion, or disability.
On September 4, 2002, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (“FCHR”), alleging that she had been discriminated against by Respondent on the bases of her age, gender, religion, disability, and retaliation. The FCHR did not conclude its investigation of the charge. On November 14, 2003, Petitioner filed an Election of Rights Form with the FCHR, and requested an administrative hearing on the ground that more than 180 days had elapsed since the filing of the discrimination charge.
At the hearing, Petitioner presented the testimony of herself and the Clerk of the Court, David Ellspermann, as witnesses and offered 15 exhibits into evidence, all of which were admitted, except for Exhibits 11 and 12. Respondent presented the testimony of the Clerk of the Court, David Ellspermann; Mr. Jack Seese; Ms. Maribeth Hudson; Ms. Karen Rodgers; Ms. Jaymi Kudary; and Ms. Lori Jean Pietrobergo; and offered 16 exhibits into evidence, all of which were admitted.
A Transcript was filed on March 23, 2004. After the hearing, Petitioner and Respondent filed Proposed Findings of Fact and Conclusions of Law on April 2, 2004, and April 13, 2004, respectively. With leave from the undersigned, Petitioner filed a Reply to Respondent’s Proposed Recommended Order on April 23, 2004.
References to statutes are to Florida Statutes (2003) unless otherwise noted.
Petitioner, Esther Kay Gibbs, is a resident of Ocala, Florida, whose date of birth is January 31, 1956.
Petitioner has many years of experience in a variety of clerical positions.
Petitioner applied for the position of Court Clerk I with the Marion County Clerk of the Court’s Office on September 20, 1999.
Petitioner’s application for employment stated that she has the ability to type at the rate of 35-40 words per minute.
The Marion County Clerk’s Office employs approximately
200 persons in approximately 14 different departments.
Petitioner initially interviewed for the position of Court Clerk I with Mr. Jack Seese, Chief Deputy Clerk for Administrative Services; and Ms. Maribeth Hudson, Chief Deputy Clerk for Court Services.
During the interviews, Petitioner was explained the varied duties of a Court Clerk I, which included typing at the rate of 45 words per minute.
At the time of the interview, Petitioner was aware that typing was an essential job function.
The interview notes of Mr. Seese and Ms. Hudson showed Petitioner to be an “above average” candidate for the position.
Mr. Ellspermann interviewed Petitioner and hired her effective October 14, 1999.
Mr. Ellspermann reviewed Petitioner’s employment application and was aware that she listed her typing speed at 35-40 words per minute.
Petitioner was never told she would be placed in a particular department or division of the Clerk’s Office.
All of the Clerk I positions required typing.
Petitioner was hired as a Court Clerk I in the traffic division and remained in that position until her resignation on August 23, 2001.
Petitioner suffers from scleroderma, the symptoms of which include pain in her fingers, extreme sensitivity to cold temperatures, difficulty swallowing, loss of sleep, and the inability to garden or use her hands for any fine motor work.
The Social Security Administration issued Petitioner a determination of disability in 1989.
Petitioner concealed her medical condition from Respondent.
Petitioner told Respondent’s officials during her interviews that she was able to type.
Respondent had no way of knowing that Petitioner had a disability or a problem with typing at the time of the interviews.
Respondent hired Petitioner with the knowledge that she was able to type only 35-40 words per minute.
Throughout her employment with Respondent, Petitioner’s supervisors were Ms. Kudary or Ms. Rodgers. As her supervisors, Ms. Kudary and Ms. Rodgers counseled Petitioner on numerous occasions about mis-keyed citations and other performance issues.
Petitioner presented no evidence concerning her claim of gender discrimination.
Petitioner presented no evidence concerning her claim of age discrimination.
Petitioner claimed that a non-supervisory co-worker made a derogatory remark about her religious beliefs.
Petitioner presented no evidence concerning her claim of religious discrimination.
Petitioner made an effort to be a cooperative employee and to fit into office culture by volunteering to work comp time and overtime.
Petitioner published recipes for and cooked meats at the request of her fellow co-workers and supervisors, even though she is a vegan.
Petitioner wrote a complimentary e-mail to her supervisor, Karen Rodgers.
On November 9, 2000, Mr. Ellspermann approved a two percent pay increase for Petitioner. In his memo to Petitioner, Mr. Ellspermann noted that “Your evaluation reflects your interest and commitment in providing the citizens of Marion County with an effective Clerk’s Office. I thank you for your hard work and continued dedication. Congratulations on a job well done."
Also, on November 9, 2000, Mr. Ellspermann directed Respondent’s payroll department to provide eight hours of incentive time to Petitioner’s annual leave. Mr. Ellspermann wrote to Petitioner, “I want to take this opportunity to recognize and thank you for the special effort you have taken not to use sick time throughout the year.” The letter noted that he took this action because Petitioner was “blessed with good health and displayed a commitment of service to Marion County and the Clerk’s Office.”
All employees in the Marion County Clerk’s Office are required to attend annual harassment/discrimination training seminars.
Petitioner attended a harassment/discrimination training seminar on the morning of August 22, 2001.
Petitioner and the other attendees at the seminar were encouraged to report incidents of harassment to their supervisors.
During a break in the training, Petitioner approached Ms. Hudson and told her she believed that her supervisor,
Ms. Rodgers, was harassing her. Ms. Hudson agreed to arrange a meeting with the Deputy Clerk, Mr. Seese.
At a meeting with Mr. Seese and Ms. Hudson, Petitioner stated that Ms. Rodgers was mean and belittling to her and everyone else in the traffic and misdemeanor divisions.
Petitioner stated that the alleged harassment by Ms. Rodgers had nothing to do with her race, color, religion, national origin, age, or marital status.
Mr. Seese and Ms. Hudson concluded that Ms. Rodgers' alleged acts toward Petitioner had nothing to do with harassment within the interpretation of the law and the Clerk’s Office Anti-Harassment Policy.
Mr. Seese concluded his investigation at this point.
Petitioner made multiple data entry errors as a Court Clerk I.
Petitioner had previously had a dispute with
Ms. Rodgers over errors she had made in entering citations into the system.
On the afternoon of August 22, 2001, Mr. Ellspermann summoned Petitioner to his office to meet with Ms. Hudson and him concerning Petitioner’s data entry errors.
At the August 22 meeting, Mr. Ellspermann discussed Petitioner’s errors in keying-in citations with her.
In response to Mr. Ellspermann’s concerns regarding Petitioner’s performance, Petitioner threw her hands in the air, and for the first time since she had become employed with the Clerk’s Office, stated that she could not do her job because she could not type.
Mr. Ellspermann and Ms. Hudson were surprised by Petitioner’s revelation concerning her inability to type.
Mr. Ellspermann informed Petitioner that he would see if any positions were available at the Clerk’s Office that did not require typing.
Mr. Ellspermann made a good faith effort to find Petitioner a position that did not require typing.
No positions existed at the Clerk’s Office for Petitioner that did not require typing.
Petitioner told Mr. Ellspermann that she could neither type nor remain in a position that required typing.
Earlier in 2001, Petitioner had submitted a form to the Department of Health in which she stated “I can’t work in the cold; I can’t type anymore.”
Petitioner did not ask for an accommodation from Respondent other than asking for a position that required no typing.
Mr. Ellspermann and Ms. Hudson met again with Petitioner on August 23, 2001, at which time Mr. Ellspermann reported that Respondent had no positions available into which she could transfer that required no typing.
Petitioner was informed that she could either resign or be terminated since she was unable to work at a position that required typing, and no positions were available that did not require typing as an essential part of the job.
Petitioner resigned from her employment with Respondent due to her “health problems.”
Since her resignation from the Marion County Clerk’s Office, Petitioner has not been able to secure employment at a comparable salary to what she previously earned as a Court Clerk I.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1), Fla. Stat., and 760.01 et seq., Fla. Stat.
Petitioner has brought this action against the Respondent pursuant to the Florida Civil Rights Act of 1992
(“FCRA”), Subsection 760.01 et seq., Florida Statutes. Petitioner is an “aggrieved person” and Respondent is an “employer” within the meanings of Subsections 760.02(10) and (7), Florida Statutes, respectively. Specifically, Petitioner alleges disability discrimination under Section 760.10(1)(a), Florida Statutes, as well as retaliation pursuant to Section 760.10(7), Florida Statutes. Section 760.10(1)(a), Florida Statutes, provides:
It is unlawful employment practice for an employer:
To discriminate or 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 an individual’s race, color, religion, sex, national origin, age, handicap, or marital status.
Similar protection is provided under the Americans with Disabilities Act (“ADA”) which prohibits discrimination “against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees . . . .” 42 U.S.C. Section 12112(a). The FCRA should be construed in conformity with the ADA and its predecessor the Rehabilitation Act, 29 U.S.C. Section 701 et seq., and related federal regulations. Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1106 (Fla. 5th DCA 1998).
In a disability discrimination case alleging discriminatory discharge, in order to establish a prima facie
case of discrimination, a petitioner must demonstrate that
she is physically disabled; (2) she is a “qualified individual,” meaning she can perform the essential functions of the job in question with or without reasonable accommodation; and (3) she was discriminated against because of his disability. Lucas v. W.W. Granger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Reid v. Heil Co., 206 F.3d 1055,1061 (11th Cir. 2000).
If Petitioner succeeds in making a prima facie case, the burden shifts to Respondent to articulate some legitimate, nondiscriminatory reason for its conduct. If Respondent carries this burden of rebutting Petitioner’s prima facie case, Petitioner must demonstrate that the proffered reason was not the true reason, but merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
If Petitioner is unable to make her prima facie case of disability discrimination, the burden of producing rebuttal evidence does not shift to the employer, and judgment is invariably entered in favor of the employer. Brand v. Florida Power Corp., 633 So. 2d 504, 510-11, citing Lucero v. Hart, 915 F.2d 1367 (9th Cir. 1990). If the prima facie case is established, the burden of producing rebuttal evidence is then placed on the employer to show that its consideration of the
handicap was relevant to the qualifications of the position sought. Brand, Id. at 511, citing Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir. 1981). In particular, an employer may meet its burden of responding to a petitioner’s prima facie case of handicap discrimination by demonstrating its inability to accommodate, or that the position required essential duties that the petitioner could not perform. Id. Once the employer places into evidence valid reasons for its decision, “the plaintiff cannot remain silent, but must rebut the employer’s position with evidence concerning his individual capabilities ‘and suggestions for possible accommodations.’” Id. quoting Treadwell v. Alexander, 707 F.2d 473,478 (11th Cir. 1983).
Petitioner has the burden of establishing that she is handicapped within the meaning of the FCRA. While the FCRA does not define the word “handicap,” the ADA definition of “disability” applies to cases brought pursuant to the FCRA. “Disability” is defined as follows:
a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
a record of such impairment; or
being regarded as having such an impairment.
42 U.S.C. Section 12102(2); Brand, supra at 510 n. 10.
Based upon the definition of “disability” and the evidence at hearing, Petitioner suffered from a “handicap” for purposes of the ADA. Petitioner suffers from scleroderma which has had created a substantial adverse impact on her ability to engage in her major life activities such as eating, sleeping, and working.
Prior to Petitioner’s resignation, Respondent knew that she was disabled. An employer knows an employee has a disability when the employee tells the employer about her condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. Hernandez v. Prudential Ins. Co. of America, 977 F. Supp. 1160, 1166 (M.D. Fla. 1997), quoting Schmidt v. Safeway, Inc., 864 F. Supp. 991, 997 (D. Or. 1994). Respondent learned of Petitioner’s disability when Petitioner threw up her hands on August 22, 2001, and said, “I can’t type anymore.” This honest statement by Petitioner, however, led to the loss of her position with Respondent.
Petitioner claims she meets the second prong of the prima facie case of discrimination under the FCRA by virtue of her belief that she was “otherwise qualified” for the Court Clerk I position since she had obviously been able to perform her job, although not without significant criticism from her
supervisors, for the previous 22 months. Petitioner’s claim must fail based upon the testimony and evidence she presented at hearing.
The ADA defines the phrase “qualified individual with a disability” as an “individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42
U.S.C. Section 12111(8); see also Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1107 (Fla. 5th DCA 1998). If a qualified individual with a disability could perform the essential functions of the job with reasonable accommodation, then the employer is required to provide the accommodation, unless doing so would be an undue hardship for the employer. 42 U.S.C. § 12112(b)(5)(A); see also Smith, supra at 1107. A reasonable accommodation to an employee may include, but is not limited to, additional unpaid leave, job restructuring, a part-time or modified work schedule, or even reassignment to a vacant position. 42 U.S.C. § 12112(9)(B); McCaw Cellular
Communications of Florida, Inc. v. Kwiatek, 763 So. 2d 1063, 1065-66 (Fla. 4th DCA 1999); Smith, supra at 1107.
Petitioner has failed to prove the second prong of the prima facie case for discrimination. When Petitioner threw up her hands on August 22, 2001, and stated, “I can’t type anymore,” and gave as her reason scleroderma, she was no longer
able to perform the essential tasks of her position. Respondent had no obligation to make accommodations until after that meeting because Petitioner’s supervisors never learned of her disability until that day. Petitioner wants to somehow impute knowledge of her medical condition onto Respondent based upon the fact that, since 1989, Petitioner knew she had scleroderma. No evidence was produced at hearing to prove Respondent or any of its employees were aware of the medical condition prior to August 22, 2001.
Mr. Ellspermann, the Clerk of the Court, attempted to find Petitioner another available position, without typing as a requirement, for which she was qualified, but had no such positions available. In fact, every Court Clerk I position requires typing as an essential physical skill. Based upon the evidence at hearing, Respondent acted in good faith in attempting to find another position for which Petitioner was suited based upon her medical condition. No evidence was put forth to refute Respondent’s good faith effort in this regard. Further, Petitioner never requested that an accommodation be made to allow her to continue in her position as Court Clerk I. Even though Respondent was under no duty to make reasonable accommodations, Petitioner had not requested such accommodations, and she made it abundantly clear that she could
not accept a position that required typing. No reasonable accommodations were available to Petitioner since, by her own admission, she could no longer type at all.
Petitioner would argue that the fact she performed typing for the 22 months prior to August 22, 2001, in and of itself, makes her a “qualified person” who is able to perform the essential requirements of her position. Based upon her own unequivocal testimony at hearing, Petitioner was not able to continue in a position that required typing. Petitioner did not, on August 22 or 23, 2001, ask her supervisors for a job with less typing. She requested a position with no typing because she stated that she could no longer type.
Based upon the foregoing, Respondent’s discharge of Petitioner was not unlawful under the FCRA, because Petitioner’s disability prevented her from performing the physical requirements of her job as a Court Clerk I. Section 760.10(8)(a), Florida Statutes; see also Tourville v. Securex, Inc., 769 So. 2d 491 (Fla. 4th DCA 2000). Further, Petitioner has failed to rebut Respondent’s legitimate position with evidence concerning her qualifications or the possibility of reasonable accommodation, and thus her disability discrimination claim under Section 760.01(a), Florida Statutes, must be dismissed.
Petitioner also claims retaliation by Respondent under Section 760.10(7), Florida Statutes. Under that section, an employer is prohibited from retaliating against an employee for engaging in a statutorily protected activity. A prima facie case of retaliation must satisfy three elements: (1) petitioner engaged in an activity that the FCRA and the ADA protects;
petitioner suffered an adverse employment action; and
petitioner shows a causal connection between participation in protected activity and the adverse employment decision. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997).
Petitioner meets the first two prongs of the test. She engaged in protected activity. After attending the discrimination/harassment training workshop, she approached one of Respondent’s supervisory employees, Ms. Hudson, to discuss alleged discriminatory behavior on the part of Petitioner’s direct supervisor, Ms. Rodgers. The ability to raise such a concern is the type of activity protected by the FCRA and the ADA. Ms. Hudson reported the matter to Mr. Seese, the deputy clerk. After questioning Petitioner, Mr. Seese and Ms. Hudson concluded that no discrimination or harassment had occurred. The second prong of the test was met when Petitioner was discharged from her employment after resigning because she was no longer able to type, an essential required skill for her
position. Where Petitioner’s claim for prohibited retaliation fails, however, is in her attempt to link her complaining about the alleged harassment following the workshop to her termination of employment with Respondent. The ultimate determination in an unlawful retaliation case is whether the protected conduct was a “but for” cause of the adverse employment decision. McDaniel v.
Temple Indep. School Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). Even if a plaintiff’s protected conduct is a substantial element in an employer’s decision to hire a prospective employee or to fire an employee, no liability for unlawful retaliation arises if the decision not to hire or to fire has been made, even in absence of the protected conduct. Long v. Eastfield College, 88 F.3d 300, 305 n. 4(5th Cir. 1996). In order to prevail on her claim of retaliation, Petitioner must present concrete evidence in the form of specific facts which demonstrate that the employer’s proffered reason is a mere pretext. Early v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Petitioner failed to produce any evidence that her complaint about the alleged discriminatory behavior by
Ms. Rodgers was the reason for the termination of her employment. In this case, it is undisputed that Respondent’s decision to sever Petitioner’s employment relationship was based solely on her clear and unambiguous admission that she was no longer able to continue in her position as a Court Clerk I if
that position required her to type. Petitioner’s attempt to establish the required causal link between discrimination and the termination of her employment fails because it is not supported by the evidence of record. Petitioner’s subjective belief which she alleged at hearing, but which is not supported by the evidence she offered and is refuted completely by the evidence offered by Respondent, is not enough to satisfy the third element of causation and thereby establish a prima facie case of retaliation. Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989); Bauer v. Albemarle Corp., 169 F.3d 962,967 (5th Cir. 1999). Because Petitioner cannot demonstrate the protected activity and the adverse employment action were causally related, she has failed to establish a prima facie case of retaliation. Her claim, therefore, must be dismissed.
Petitioner has failed to show that she resigned her position with Respondent for any reasons other than her admission that she could no longer type, an essential skill requirement of her position, because of her medical condition, scleroderma. Also, Petitioner has failed to show that her employment was terminated in retaliation for her engaging in protected behavior, namely, complaining to her employers of her perceived discrimination by her immediate supervisor. Finally, Petitioner has failed to prove a violation of the FCRA or the
ADA through the evidence and testimony she offered at hearing. Accordingly, her charges of discrimination and retaliation must
be dismissed.
RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner’s charge of discrimination.
DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
