HAZEL M. CASLER,
vs.
Respondent.
) Case No. 03-4848
A formal hearing was conducted in this case on March 11, 2004, in Pensacola, Florida, and by telephone on March 23, 2004, before Suzanne F. Hood, Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Hazel M. Casler, pro se
For Respondent: Michael R. Phillips, Esquire
Jane M. Rolling, Esquire Post Office Box 2053
The issues are as follows: (a) whether Respondent committed an unlawful employment practice by discriminating
against Petitioner based on her age and handicap contrary to Subsection 760.10(1), Florida Statutes (2003); and (b) whether Respondent committed an unlawful employment practice by retaliating against Petitioner contrary to Subsection 760.10(7), Florida Statutes (2003).
On October 21, 2002, Petitioner Hazel M. Casler (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Manpower, Inc. (Respondent), had discriminated against Petitioner based on her age by failing to promote her and based on her disability by failing to accommodate her handicap and terminating her employment. The charge also alleged that Respondent had retaliated against Petitioner by terminating her employment.
FCHR issued a Notice of Determination: No Cause on November 6, 2003. Petitioner subsequently filed a Petition for Relief with FCHR. FCHR referred the Petition for Relief to the Division of Administrative Hearings on December 24, 2003.
A Notice of Hearing dated January 9, 2004, scheduled the hearing for February 9, 2004.
On January 23, 2004, Petitioner filed an unopposed Motion for Continuance. On January 26, 2004, the undersigned issued an
Order Granting Continuance and Re-scheduling Hearing. The Order set the hearing for March 11, 2004.
During the hearing on March 11, 2004, Petitioner testified on her own behalf and presented the testimony of one additional witness. Petitioner offered nine exhibits, which were accepted into the record as evidence.
Respondent presented the testimony of five witnesses.
Respondent offered 68 exhibits, which were received into evidence.
The parties were unable to complete the presentation of all testimony during the hearing on March 11, 2004. On March 12, 2004, the undersigned issued an Order scheduling a telephonic final hearing on March 23, 2004.
During the hearing on March 23, 2004, Petitioner presented her rebuttal testimony.
A Transcript of the final hearing proceeding was filed on April 6, 2004. Both parties submitted Proposed Recommended Orders on April 16, 2004.
From March 30, 1998, until April 9, 2002, Respondent employed Petitioner as a payroll and billing clerk at Respondent’s Pensacola support center. The role of the support center is to process payroll checks and billing for 85 to 90 of Respondent’s field offices in five states.
In January 1999, Petitioner applied for the team lead position in the payroll department. Jessica Pope, one of Petitioner’s co-workers, also applied for the position. Like Petitioner, Ms. Pope had worked at the support center for about a year.
The role of the team lead is to handle questions and problems from other members of the team. The employee chosen to act as team lead must be adaptable and have leadership, teamwork, and communication skills.
Sandi Hartzog, support center manager, and Kerri Golmon, payroll supervisor, selected Ms. Pope for the team lead position because they believed that Ms. Pope demonstrated better leadership and teamwork skills than Petitioner. Additionally, Ms. Pope had prior management experience.
Ms. Pope’s performance appraisal for the relevant time period (June 1998 through May 1999) rated her teamwork skills as a "4," or "Above Expectations." Petitioner’s performance appraisal for that time period (April 1998 through March 1999) rated Petitioner’s teamwork skills as a "3," or "Meets Expectations."
In or about June 1999, Petitioner informed Ms. Hartzog, that she suffered from allergies. Petitioner also informed
Ms. Hartzog that her condition was exacerbated by scents. Petitioner requested that Ms. Hartzog prohibit all employees at
the support center from wearing any scented substances, including perfumes and colognes.
Ms. Hartzog informed Petitioner that she would not impose a scent-free environment but that she would request that support center employees voluntarily refrain from wearing strongly scented substances. Accordingly, Ms. Hartzog sent an e-mail to all support center employees on June 11, 1999, requesting that they voluntarily refrain from wearing perfume and cologne in the workplace. Ms. Hartzog also requested that Petitioner provide medical documentation regarding her health condition.
In response to Ms. Hartzog’s request for medical information, Petitioner provided Ms. Hartzog with a memorandum dated June 22, 1999, from Tanya Hodge, nurse practitioner. The memorandum stated that Petitioner was "under the care" of the First Physicians Internal Medicine Group and that "she has been evaluated" for several conditions. The memorandum did not contain a medical diagnosis.
In February 2000, Petitioner requested that Ms. Golmon send out another e-mail reminding her co-workers not to wear fragrances in the office. Ms. Golmon complied and sent a reminder to all employees at the support center asking them to refrain from wearing perfumes and colognes.
In February 2001, Petitioner again requested that Ms. Golmon send out a reminder regarding fragrances in the office. Within a half-hour, Ms. Golmon sent out another reminder to all employees at the support center.
In addition to sending out these periodic reminders concerning the wearing of fragrances, Ms. Golmon warned several employees concerning their wearing of fragrances in the office. Ms. Golmon threatened to discipline employees who continued to wear fragrances. Ms. Golmon attempted to police the wearing of fragrances in the workplace because Ms. Golmon knew fragrances bothered Petitioner. Ms. Golmon wanted to "keep some sort of peace" and "ease tension in the office."
Despite Ms. Golmon’s efforts to prevent Petitioner’s co-workers from wearing fragrances, Petitioner confronted employees who were wearing fragrances on her own. These employees complained to Ms. Golmon that Petitioner was singling them out and ignoring other co-workers who were also wearing fragrances.
Petitioner also complained to Dawn Adams, an employee relations representative at Respondent’s headquarters in Milwaukee, Wisconsin, about the wearing of fragrances at the support center. In an e-mail dated August 31, 2001, Petitioner told Ms. Adams that her supervisors were taking her condition
lightly and suggested that Respondent adopt a policy for a mandatory "scent-free environment."
In October 2001, Petitioner complained to Respondent concerning mold in the support center building. Because Respondent was only a tenant in the building, Ms. Hartzog contacted building management. The landlord subsequently remediated the mold damage.
Ms. Hartzog permitted any employees who were bothered by the construction to leave the office early. Ms. Hartzog did not dock the pay of anyone who left work early. Petitioner took advantage of this opportunity.
On October 3, 2001, Ms. Hartzog again requested medical documentation of Petitioner's health condition with respect to her request for an accommodation. Ms. Hartzog gave Petitioner a form/doctor's certificate for Petitioner's doctor to complete. A series of e-mails followed in which Petitioner stated that she had provided the form to her doctor and would provide it to Ms. Hartzog as soon as she received it. However, Petitioner never returned the completed form to Ms. Hartzog.
On October 4, 2001, Petitioner sent an e-mail to Ms. Adams complaining about Respondent’s handling of the mold problem. Petitioner's e-mail included a reference to a prior inquiry from Ms. Adams, asking whether Respondent would pay employees who left early during the mold-removal construction.
Petitioner copied this e-mail to, among other people, Respondent’s president, Jeffrey Joerres.
In her October 4, 2001, e-mail, Petitioner mentioned that three of her co-workers, Ms. Pope, Joyce Hillig, and Mary Jordan, also suffered from allergies and breathing problems. Each of these co-workers were copied on the e-mail. Shortly thereafter, each of the co-workers complained to Petitioner’s supervisors and/or to Petitioner herself that they were upset for the following reasons: (a) Petitioner included them in her complaint; and (b) Petitioner disclosed their medical conditions to, among other people, Respondent’s president.
Around that same time, Ms. Golmon learned about the complaint of another of Petitioner’s co-workers. Specifically, Felicia Myrick, complained to her supervisor about Petitioner's unannounced visit to Ms. Myrick's home to discuss Petitioner's concerns about mold and air quality in the support center building.
Petitioner’s actions, such as involving co-workers in an e-mail to Respondent's president, caused tension in the office. Ms. Golmon was aware that the tension adversely affected the cohesiveness of the team.
Petitioner received a verbal warning on October 8, 2001, for confronting co-workers regarding their use of cologne and for inappropriately discussing other employees’ medical
conditions. Ms. Hartzog and Ms. Golmon also informed Petitioner in a meeting on October 8, 2001, that further such conduct could result in further disciplinary action, up to, and including, termination.
After receiving the verbal warning, Petitioner continued to confront co-workers regarding fragrances in the workplace. She also conducted herself in other ways that made her co-workers feel threatened and uncomfortable.
In October 2001, Tim Gainer was Respondent's payroll/billing clerk in charge of bridge error corrections. Petitioner was his assistant.
When Mr. Gainer announced that he was resigning his position, Petitioner understood that she would replace
Mr. Gainer and that Tracy Hughes, a temporary employee, would be Petitioner's assistant. However, Respondent subsequently trained Ms. Hughes and increased her pay equal to Petitioner's pay rate. Ms. Hughes' desk was placed next to Petitioner's desk so that they could share all books and paperwork pertaining to bridge error corrections. There is no competent evidence that Ms. Hughes, a younger person than Petitioner, was treated more favorably than Petitioner.
On March 8, 2002, Petitioner confronted a co-worker, Tenisha Malden, at her desk. Petitioner handed Ms. Malden an e-mail about spraying air freshener in the women’s restroom.
The e-mail erroneously implied that Ms. Malden was purposefully attempting to harm Petitioner by using air freshener.
Ms. Malden was offended by Petitioner’s accusation. Ms. Malden also worried that Petitioner intended to report to management that Ms. Malden was attempting to harm Petitioner. Ms. Malden reported this incident to Ms. Golmon.
On March 20, 2002, Petitioner called an attorney from her desk during work hours. During the telephone call,
Petitioner inquired about filing a civil lawsuit against
co-workers who were intentionally causing her harm. Petitioner spoke in a raised voice so that several of her co-workers, including Ms. Pope and Ms. Hughes, could hear her side of the conversation. Both Ms. Pope and Ms. Hughes felt threatened and anxious about Petitioner’s discussion of suing a co-worker.
Ms. Pope reported this disruptive incident to Ms. Golmon.
Both Ms. Pope and Ms. Hughes felt that Petitioner was "unapproachable." Ms. Pope and Ms. Hughes were concerned that any interaction with Petitioner could upset or offend her.
Other employees also avoided approaching Petitioner's work area, because she created a "tense" and "uncomfortable" atmosphere in the office. Petitioner’s conduct left the team unable to work together as well as it should have.
On March 27, 2002, Respondent gave Petitioner a written warning. The warning specifically referenced the
incident with Ms. Malden and the telephone call to the attorney. In the warning, Respondent informed Petitioner that such conduct "negatively affect[ed] productivity, individual and team performance, and morale, as well as cause[d] conflict and fear"; and that Petitioner "must discontinue the inappropriate and confrontational behavior with coworkers as well as the abuse of company time, systems and equipment, etc."
The written warning also stated, "If this behavior or any form of retaliatory action occurs, further disciplinary action up to and including termination, will occur."
Ms. Hartzog and Ms. Golmon met with Petitioner on March 27, 2002, to discuss the written warning.
On April 5, 2002, approximately ten days after receiving the written warning, Petitioner initiated a discussion with Ms. Hughes regarding her employment status. Petitioner stated that she was the reason Ms. Hughes could not become a permanent employee. Petitioner further told Ms. Hughes, "I like you but I don’t like you that much." Apparently, Petitioner believed that Respondent had not made Ms. Hughes a permanent employee due to Petitioner's complaints about Ms. Hughes receiving equal job responsibilities and rate of pay.
Ms. Hughes was confused and bothered by the conversation, which implied that Petitioner had control over Ms. Hughes’ employment status and that Petitioner had a problem
with Ms. Hughes. The conversation made Ms. Hughes apprehensive about approaching Petitioner.
Ms. Hughes reported her conversation with Petitioner to Ms. Golmon. At Ms. Golmon’s request, Ms. Hughes sent her an e-mail on April 9, 2002, describing the situation.
After learning of Petitioner’s inappropriate conversation with Ms. Hughes, Respondent decided to terminate Petitioner’s employment. The termination was necessary due to the stress and tension that Petitioner's conduct was causing in the workplace. Respondent's management did not believe that further warnings or other discipline would be effective in curbing this conduct because Petitioner disregarded two prior warnings.
On April 9, 2002, Ms. Hartzog and Ms. Golmon met with Petitioner to inform her that she was terminated for violating the March 27, 2002, written warning. Specifically, Petitioner violated the written warning when she talked to Ms. Hughes concerning Ms. Hughes’ employment status.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See §§ 120.569, 120.57(1) and 760.11, Fla. Stat. (2003).
It is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age or handicap. See § 760.10(1), Fla. Stat. (2003).
It is also an unlawful employment practice to discriminate against any person because the person opposes an unlawful employment practice or has filed a charge of an unlawful employment practice. See § 760.10(7), Fla. Stat. (2003).
The provisions of Chapter 760, Florida Statutes (2003), are analogous to those of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. Section 621, et seq., and the Americans With Disabilities Act (the "ADA"), 42 U.S.C. Section 12101, et seq. Cases interpreting the ADEA and the ADA are, therefore, applicable to Chapter 760, Florida Statutes (2003). See Razner v. Wellington Regional Medical Ctr., Inc., 837 So. 2d 437, 440 (Fla. 4th DCA 2002).
A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Respondent's burden is one of production, not persuasion, as it always remains Petitioner's burden to persuade the fact-finder that the proffered reason is a pretext and that Respondent intentionally discriminated against Petitioner. See Burdine, 450 U.S. at 252- 256.
HANDICAP DISCRIMINATION
To prove a prima facie case of handicap discrimination, Petitioner must establish the following elements: (a) she is a disabled person within the meaning of the Florida Civil Rights Act and the ADA; (b) she performed or is able to perform her assigned duties satisfactorily; and
Respondent did not accommodate Petitioner's disability and/or discharged Petitioner despite her satisfactory performance. Swenson-Davis v. Orlando Partners, Inc.,
16 F.A.L.R. 792, 798 (FCHR 1992).
A person is disabled when: (a) he or she has a physical or mental impairment that substantially limits one or more major life activities; (b) he or she has a record of having an impairment; or (c) he or she is regarded as having an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)(I).
Petitioner did not present competent medical evidence that she is disabled. However, it is clear that Respondent regarded Petitioner as having an impairment, repeatedly encouraging other employees to avoid wearing perfumes and other scents, and threatening to discipline them when they continued to do so.
A qualified individual with a disability must establish that he or she is able to perform the essential functions of the job with or without reasonable accommodation.
LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835
(11th Cir. 1998). "The employee retains at all times the burden of [persuasion] . . . that reasonable accommodations were available." Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996).
Respondent was not dissatisfied with Petitioner's work product. However, Petitioner has not shown that she was qualified for the job because, beyond Respondent's valiant efforts to eliminate scents and smells in the building, there were no reasonable accommodations for Petitioner's alleged allergies.
Reasonable Accommodation
An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide "reasonable accommodations" for the disability -
unless doing so would impose undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a).
The evidence shows that Respondent performed its duty to reasonably accommodate Petitioner's alleged sensitivity to odors. Specifically, Petitioner’s supervisors repeatedly requested that her co-workers avoid wearing perfumes and colognes. Ms. Golmon approached individual employees who failed to heed these requests and directed them to refrain from wearing perfumes and colognes. She even threatened to send one employee home because the employee repeatedly wore cologne to the office. Additionally, when mold remediation activities in the office caused dust and debris in the air, Ms. Hartzog permitted Petitioner and other affected employees to go home early without a loss of pay.
Petitioner desired a scent-free work environment as an accommodation. However, courts have held that imposition of a scent-free environment is not a reasonable accommodation. See e.g., Hunt v. St. Peter School, 963 F.Supp. 843 (W.D.
Mo. 1997)(school not required to provide scent free environment under Rehabilitation Act); Montenez-Denman v. Slater, 208 F.3d
214 (6th Cir. 2000)(unpublished--finding burden of policing scents that might be brought into the workplace, including such items as common cleaning supplies to be unreasonable).
Petitioner is not entitled to the accommodation of her choice. Rather, she is entitled only to a reasonable accommodation. Beadle v. Hillsborough County Sheriff’s Dept., 29 F.3d 589, 592 (11th Cir. 1994).
The accommodations provided by Respondent-–requesting Petitioner’s co-workers to refrain from wearing perfumes and colognes both generally and specifically-–were reasonable. Respondent satisfied its duty to reasonably accommodate Petitioner's alleged disability.
Unlawful Discharge
To the extent that Petitioner is handicapped and able to perform her duties satisfactorily, she completed her prima facie case of handicap discrimination by testifying that she was discharged despite her satisfactory performance. However, the greater weight of the evidence indicates that Respondent fired Petitioner because she was disruptive and confrontational with her co-workers.
Petitioner failed to heed two prior warnings, one verbal and one written. When Petitioner confronted a co-worker regarding her employment status, Respondent had a legitimate non-discriminatory reason to terminate Petitioner's employment. Petitioner has not shown that Respondent's reason was a pretext for discrimination.
Hostile Work Environment
A prima facie case of a hostile work environment involves the following elements: (a) the employee was a member of a protected group; (b) the employee was qualified to perform the job; (c) the employee was subjected to unwelcome harassment;
the harassment complained of was based on the employee's 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. See 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); Joyce Vann v. Wal-Mart Stores, Case No. 02-0404 (DOAH June 10, 2002).
Assuming that Petitioner is handicapped and that she was qualified to perform her duties, Petitioner has not shown that she was sufficiently harassed so as to create an abusive working environment. The most persuasive evidence indicates that Petitioner's co-workers avoided her because she was confrontational. Petitioner's testimony that some co-workers intentionally wore perfumes and sprayed the restroom with air freshener is not credible. More importantly, Respondent made a more than reasonable effort to accommodate Petitioner's alleged sensitivity to mold and odors of all kinds. Respondent took
prompt and effective remedial action when mold was discovered in the building and each time a co-worker wore a scent that offended Petitioner.
AGE DISCRIMINATION
In order to prove a prima facie case of age discrimination, Petitioner must show the following: (a) she is a member of a protected age group; (b) she was qualified for the job; (c) she was subjected to an adverse employment action; and
(d) similarly situated employees of a different age were treated more favorably. See Green v. ATC/VANCOM Management, Inc.,
20 F.A.L.R. 314 (1997); Musgrove v. Gator Human Services, c/o Tiger Success Center, 22 F.A.L.R. 355, at 356 (FCHR 1999).
Failure to Promote
Petitioner testified that she applied for a promotion to the position of team lead in 1999. It is undisputed that Respondent gave the position to a younger employee, Ms. Pope.
Respondent presented legitimate, non-discriminatory reasons for selecting Ms. Pope, and not Petitioner, for the team lead position. Specifically, Ms. Pope exhibited stronger leadership and teamwork skills than Petitioner. Ms. Pope also had prior management experience that Petitioner lacked. Petitioner failed to present any evidence that these reasons were pretextual.
Petitioner's age discrimination claims involving Ms. Hughes are without merit. There is no evidence that Ms. Hughes was treated more favorably than Petitioner.
RETALIATION
In order to establish a prima facie case of retaliation, Petitioner must show the following: (a) she engaged in statutorily protected activity; (b) she suffered an adverse employment action; and (c) the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997).
Petitioner has not proven a causal connection between her complaints to Respondent and her discharge. Rather, the evidence in the record shows that Respondent terminated Petitioner’s employment, not because of her requests for accommodation of her medical condition, but due to her inappropriate behavior toward co-workers and the disruptive effects that behavior had on the workplace.
There was no evidence presented that Respondent retaliated against Petitioner when she first requested a
scent-free environment in June 1999, or when she requested that the wearing of fragrances in the office be addressed in February 2000 or February 2001. To the contrary, the evidence
shows that Petitioner’s supervisors attempted to accommodate Petitioner's desire that her co-workers not wear perfume and cologne in her presence.
To the extent that Petitioner proved a prima facie case of retaliation, Respondent presented a legitimate non- discriminatory reason for discharging Petitioner, i.e.
co-workers. Petitioner did not present any persuasive evidence that Respondent's reason was a pretext.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Hazel M. Casler
Michael R. Phillips, Esquire McGuireWoods LLP
Jane M. Rolling, Esquire Post Office Box 2053
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.
