Pursuant to appropriate notice this matter came on for formal proceeding and hearing before P. Michael Ruff, duly- designated administrative law judge of the Division of Administrative Hearings in Pensacola, Florida, on June 18, 2009. The appearances were as follows:
For Respondent: James N. Foster, Esquire
John J. Marino, Esquire McMahon & Berger
St. Louis, Missouri 63131 STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern
whether the Petitioner was discriminatorily discharged because of her race and purported disability.
This cause arose upon the filing of a Petition for Relief by the Petitioner, Tricia Dubose, after a complaint she filed with the Florida Commission on Human Relations (Commission) was the subject of a finding of "no cause". The issues in dispute, raised by the Petition for Relief were, in due course, transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge for formal proceeding.
The Petitioner contends that she was unlawfully discharged from her employment with the Respondent, Escambia County Area Transit, Inc. (Respondent), because of her race and because of her disability. She maintains she was not allotted the appropriate amount of Family Medical Leave Act (FMLA) leave and that she was not given the option to return to work at "light- duty." The Respondent maintains that the Petitioner was properly terminated from her employment as a bus driver or operator because she had exhausted her FMLA leave in December 2007, and because there was no light-duty work available for the Petitioner to perform, at the time she requested it.
The cause came on for hearing as noticed. The Petitioner presented three witnesses at hearing: (1) herself; (2) Lucy Davison and (3) Calvin T. Nairn. The Petitioner offered no
exhibits. The Respondent presented one witness, a company representative, Patty Chizck. The Respondent offered 19 Exhibits, all of which were admitted into evidence. Upon conclusion of the hearing, a transcript thereof was ordered. Upon the parties request and agreement, proposed recommended orders were determined to be due 15 days after the filing of the transcript. Subsequent to the hearing, it developed that the transcript was substantially delayed. The reasons for the delay are not entirely clear but, after inquiry by the undersigned, the transcript was ultimately filed September 24, 2009. The Proposed Recommended Orders were filed on or before October 9, 2009, and have been considered in the rendition of this
recommended order.
The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999.
On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however.
A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007,
informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment."
There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave.
On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave.
The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and
Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007.
Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date.
On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy.
As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the
rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days.
The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner.
The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of
discretionary leave voluntarily granted to her by the Respondent.
The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment.
Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to
work for a reasonable period of time after exhaustion of FMLA leave.
Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably
offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties hereto.
§§ 120.569 and 120.57(1), Fla. Stat. (2009).
Section 760.10(1)(a), Florida Statutes (2008), provides that:
It is an unlawful employment practice for an employer:
To discharge or to 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 such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
The Florida Civil Rights Act, Chapter 760, Florida Statutes, was patterned after Title VII of the Federal Civil Rights Act of 1964. Florida courts have therefore used the same analysis when considering claims under the Florida Civil Rights Act as is used in decisions employed in resolving claims under the Federal Act. See Harper v. Blockbuster Entertainment Corp.,
139 F.3d 1385, 1387 (11th Cir. 1998); Castleberry v. Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002). Likewise, the instructive or persuasive quality of federal decisions interpreting Title 42 U.S.C. Section 21101, et seq., the
"Americans with Disabilities Act," is also recognized by Florida Courts. See Florida Department of Community Affairs v. Bryant,
586 So. 2nd 1205 (Fla. 1st DCA 1991); Razner v. Wellington Regional Medical Center, Inc., 837 So. 2d 437 (Fla. 4th DCA 2003) and Chanda v. Englehard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000). Therefore, the shifting burden analysis set forth in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973) applies in proceedings arising under Chapter 760, Florida Statutes. The McDonnell shifting burden analysis provides:
(1) The Petitioner must prove a prima facie case of discrimination by the preponderance of the evidence; (2) If the Petitioner proves a prima facie case, the burden shifts to the defendant (Respondent) who must "articulate some legitimate,
non-discriminatory reason for the employee's rejection" in order to rebut the Petitioner's presumption attached to the prima facie case. McDonnell 411 U.S. at 803. Once the employer brings forward evidence of a non-discriminatory reason for the employment action taken, the Petitioner must then advance evidence to demonstrate that the proffered reason offered by the employer is but a pretext for what really amounted to a discriminatory reason for the employment action at issue. The Petitioner, however, retains the ultimate burden of persuasion in an employment discrimination case. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Petitioner contends she was discriminated against by termination, based upon her race and alleged disability. A prima facie case of discrimination can be established by direct evidence of discriminatory intent, as by a statement or act. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). In order to support discrimination by direct evidence, the statement or act of the employer or decision-maker must be made by the decision-maker, must relate to the challenged employment decision and must reveal blatant discriminatory animus. If believed, it must prove the existence of a fact without further inference or presumption. There is no direct evidence of discrimination established in this case, therefore, it must be determined if the Petitioner has established discrimination based upon race or disability by circumstantial evidence, in accordance with the proof analysis test of McDonnell-Douglas, supra.
In order for the Petitioner to establish a prima facie case of discrimination, based upon race, by circumstantial evidence, the Petitioner must show that (1) She is a member of a protected class or category (African-American); (2) that she was subjected to an adverse employment action; (3) that she was either replaced by a person outside her protected class or
similarly-situated employees outside her protected class were treated more favorably than she; and (4) that she was qualified to perform her job. See Joseph v. Publix Supermarkets, Inc., 983 F. Supp. 1431, 1444 (S.D. Fla. 1997); Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997).
If a prima facie case of discrimination based upon race or disability is established the burden would shift, under the McDonnell-Douglas analysis, to the Respondent to show that the decision was motivated by legitimate, non-discriminatory reasons. Texas Dept. of Community Affairs v. Burdine, supra. If such a reason is articulated by the Respondent, then the Petitioner must show that the reason is pre-textual and not the true reason for the employment decision. If the employer's articulated reason then is not deemed credible, circumstantial evidence on the part of the Petitioner will be sufficient to define that reason as pre-textual. See Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
Concerning the question of establishment of a prima facie case of race discrimination, the Petitioner has established that she is a member of a protected class or category since she is African-American. She also established that she suffered an adverse employment action, termination. She did not demonstrate however, that she was replaced by any person of a protected class or non-protected class, after she
left the Respondent's employ and through the date of the hearing. She also failed to establish that any employees outside her protected class, who were similarly-situated, were treated differently and more favorably than was she, after being involved in similar transgressions of employer policies. In fact, the policy of terminating employees after leave has expired, from FMLA leave or discretionary leave, was shown to be uniformly applied without regard to race or sex of the employees involved. The evidence shows, as found above, that actually more Caucasian employees were terminated, during the same month, than African-American, and they were terminated for the same reasons. Similarly, there was no showing that those employees were warned before the termination, and the Petitioner was not. The record evidence shows clearly that all employees were treated the same with regard to the situation where their leave time, including FMLA leave, was exhausted; all were terminated.
The Petitioner also failed to establish a prima facie case with regard to race or disability discrimination issues because she failed to show that she was qualified to perform her job. While she had performed her job for a substantial number of years, and although she was initially absent from work due to injury or medical reasons, she stayed away from work for a substantial period of time, even after her leave was exhausted. If she could not be present to perform her duties, after leave
was exhausted, and with no persuasive evidence of medical or other substantial reason to be absent, then she could not be said to be qualified to perform her job under those circumstances. Regular attendance, absent either approved leave or disability reasons, is a necessary qualification or requirement for employment.
In order to establish a prima facie case of disability/handicap discrimination, for purposes of the Americans with Disabilities Act (ADA) or Section 760.10, Florida Statutes, (1) the Petitioner must establish that she has a physical or mental impairment which substantially limits one or more major life activities; (2) that she is able to perform the assigned duties and functions of her employment position satisfactorily with or without reasonable accommodation (which she must request); (3) that her employer was aware of her disability, that there is a record of her having the disability or that she was "generally regarded" as having such a disability; and (4) that despite her satisfactory performance she was terminated, when others, similarly-situated and outside her protected class were given more favorable treatment. See
Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1357, 1362 (S.D. Fla. 1999).
There is no persuasive evidence in this record that the Petitioner suffered from any physical or mental impairment that was substantially limiting her major life activity, such as breathing, walking, or working. There is no evidence that any physician placed her on any restrictions with regard to a diagnosis concerning any physical impairment, according to the preponderant, persuasive evidence in this record. During the relevant time periods in 2006-2007, there is no persuasive evidence that the Petitioner had any impairment which substantially limited one or more major life activities.
Although the Respondent knew of the purported reasons the Petitioner was absent (migraine headache condition and injured finger) there is no persuasive evidence that the employer knew that there was any permanent impairment, such that the employer would know that the Petitioner was disabled or handicapped. There was no persuasive evidence to show that she was "generally regarded" in the workplace, and by the employer and its representatives, as having a disability or handicap.
The Petitioner was, no doubt, historically qualified to perform her job as a bus operator, in view of the years of apparently satisfactory service. The fact remains, however, that she was not qualified to perform that job during relevant times, due to her penchant for being absent from work for
substantial periods of time, even after all approved types of leave had expired.
The Petitioner, who is claiming a disability, is also required to identify to the employer a reasonable accommodation which the employer might provide to better enable the employee to perform the essential functions of the job. Other than requesting light-duty when she returned from leave time, the Petitioner never asked for any accommodation for her purported disability, according to the preponderant, persuasive evidence. It is the Petitioner's burden to request such an accommodation. U.S. Airways Inc., v. Barnett, 122 S. Ct. 1516, 1523 (2002). Any accommodation received by the Petitioner from the Respondent (in view of their persuasive evidence that no light-duty work was available when she requested it) was largely the result of the Respondent's own initiative, in according the Petitioner substantial amounts of discretionary leave after the FMLA leave expired. This was a de facto accommodation, provided gratuitously and not directly won as the result of the Petitioner's request, or the Respondent's knowledge that the Petitioner had any impairment which substantially limited a major life activity at the time, and immediately prior, to the termination.
Likewise, there was no persuasive evidence to show that employees similarly-situated to the Petitioner, and outside
her protected class, were given more favorable treatment. In fact, both African-American and a greater number of Caucasian employees, most of whom were women, were also terminated for the same reason as was the Petitioner. The Respondent treated them all the same.
The following factors should be considered in determining whether an individual is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) the duration of the impairment; and (3) the permanent or long-term impact or expected permanent or long-term impact resulting from the impairment. See 29 C.F.R. Section 1630.2(j)(1). The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Thompson v. Henderson, 226 F. Appx. 466,
472 (6th Cir. 2007). The Petitioner's job involved driving a bus. Driving has been held not to be a major life activity covered by the ADA. Winsley v. Cook County, 563 F.3d 598 (7th Cir. 2009).
The Petitioner simply presented no evidence that she was, or currently is, disabled. All she had was an episode of migraine headaches and an injury to her finger that caused her to miss work. Those were not shown to be impairments of any substantial duration or severity and there is no evidence of impairment of a major life activity. Therefore, the Petitioner
has not shown that she has a disability and has not been able to establish a prima facie case for disability for purposes of Chapter 760, Florida Statutes, or the ADA.
Concerning the race discrimination claim and the prima facie case the Petitioner must establish, under the McDonnell- Douglas method of analysis, the Petitioner has not established that she was meeting her employer's legitimate job expectations. Although she had formerly been qualified to perform her job as a bus driver, the question is whether the employee had been performing well at the time of the alleged adverse employment action. See Peele v. Country Mutual Insurance Company, 288 F.3d 319, 326, 328 (7th Cir. 2006). Due to excessive absences beyond her authorized leave time, her employer's legitimate expectations for her performance, and therefore the measure of whether she was fulfilling the qualifications and functions of her job, were not being met.
Moreover, the Petitioner cannot establish that she was treated less favorably than similarly-situated individuals who were not of her race. As found above, the regularly established, written policy concerning the eventuality of termination, if FMLA leave and other leave was exhausted, was uniformly applied to all employees regardless of sex or race. The evidence clearly shows that more Caucasian employees, who were also female, were terminated in the same month as the
Petitioner. Thus, the Petitioner has not, for these reasons, established a prima facie case of race discrimination.
Even had the Petitioner established a prima facie case of disability or race discrimination, which she did not, the employer must be concluded to have established a legitimate,
non-discriminatory reason for the employment action taken. The Petitioner was terminated because she failed to comply with the employer's regularly-adopted and written policy, duly-noticed to all employees, to the effect that, if FMLA leave and other approved leave was exhausted, and subject to the Respondent's authorization of voluntary, discretionary leave, termination could result. The Respondent demonstrated clearly, with persuasive, preponderant evidence, that this policy was uniformly applied without regard to the race or sex of the employees involved. The application of the discipline of termination to the Petitioner was established to have been as a result of the application of this policy and not because of the Petitioner's race or any disability, had any disability been established, which it has not.
In the face of this demonstration and articulation of a legitimate, non-discriminatory reason for the termination, the Petitioner has adduced no evidence to show that that reason was pre-textual. In light of the demonstration by the Respondent that the policy concerning termination, if excessive absences
are taken after approved leave is exhausted, was uniformly applied without regard to the race or the sex of the employees involved, there is no reason to believe that the Respondent's articulated reason for the termination is not credible. There is likewise no reason to believe that it is based upon the race or any purported disability or handicap of the Petitioner.
In summary, in light of the Respondent's preponderant, persuasive proof concerning its reason for the termination and the lack of any persuasive evidence that the Petitioner suffers from a disability or handicap or that race had anything to do with the reasons for her termination, it must be determined that the basis for the race and disability-related claims has not been proven. Accordingly, the Petition should be dismissed.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety.
DONE AND ENTERED this 10th day of December, 2009, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2009.
John J. Marino, Esquire McMahon & Berger
St. Louis, Missouri 63131
James N. Foster McMahon & Berger
St. Louis, Missouri 63131
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Derick Daniel, Executive Director 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.
