vs.
Respondent.
) Case No. 11-5643
On March 27, 2012, a duly-noticed hearing was held in Jacksonville, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, by discriminating against Petitioner on the basis of handicap or disability, and if so, what is the appropriate remedy.
On July 7, 2011, Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that North Florida Sales Company, Inc., had discriminated against him based upon his handicap or disability. On October 18, 2011, the Commission issued a Notice of Determination of No Cause, and on October 31, 2011, Petitioner filed a Petition for Relief. On November 3, 2011, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
The case was noticed for hearing on January 12, 2012, in Jacksonville, Florida. After some discovery delays, the hearing was re-scheduled for March 27, 2012. Petitioner testified and offered no exhibits. Respondent presented the testimony of one witness and offered 11 exhibits. Respondent's Exhibits R-1 through R-9 and Exhibit R-11 were admitted. Respondent's Exhibit R-10, a copy of Petitioner's Facebook page, was found to be not relevant and was not admitted.
The one-volume Transcript of the proceedings was filed with the Division on April 11, 2012.
North Florida Sales Company (North Florida), the Respondent in this case, is a beer and ale wholesaler that does business in Florida and employs over 15 people.
Window Mitchell, Petitioner in this case, began working at North Florida as a custodian in the maintenance department on June 22, 2009. His normal schedule at North Florida was Monday through Friday.
Near the time he was hired, Petitioner received a copy of Respondent's "Employee Information Handbook." The handbook advised Petitioner of North Florida's "open door" policy that permitted employees to take any complaints or problems directly to the Human Resources Manager, the General Manager, or the President. It further advised employees that it was North Florida policy to treat all employees equally without regard to race, color, religion, sex, age, marital status, disability, or national origin. It stated that any violation of North Florida's equal opportunity policies must be reported immediately to the Human Resources Manager or General Manager without delay.
The employee handbook also advised Petitioner of North Florida's policies on attendance. It required employees to give advance notice of any absence or lateness, and noted that employees who fail to maintain an acceptable attendance record would be subject to disciplinary action.
On September 10, 2009, Petitioner received an Employee Warning Report noting that Petitioner had missed six days of work during his 90-day probationary period. The report stated
that this amount of absenteeism was considered excessive and that immediate improvement was expected. It was signed by Petitioner and Petitioner's supervisor.
On November 10, 2009, Petitioner received another Employee Warning Report. It stated that Petitioner's attendance continued to be a problem and that it was creating a burden on the maintenance department. It stated that further incidents of absenteeism, or arriving late or leaving early, would result in termination. It was signed by Petitioner, Petitioner's supervisor, and Margaret Lombardi, Human Resources Manager.
There is no evidence that Petitioner ever received any further "Employee Warning Reports."
On June 3, 2010, Petitioner received an Employee Performance Review. In his review, Petitioner was given a rating of "3" out of "10" on "dependability." The comment under that heading indicated that Petitioner was "out from work too many days." Petitioner received two other "3"s on his evaluation and received no evaluation above a "5" in any area. In the final section, entitled "Objectives for the Next Review Period," the first of two objectives listed was "keep all curbs in warehouse painted." The second was, "try to be at work all of the time."
On July 17, 2010, Petitioner was returning from a barbecue with four friends. He testified that he had not been drinking. The car he was driving ran into a pole head-on. Petitioner's knee and leg hurt and became badly swollen. He had "little chunks of meat" missing from his left elbow and forearm. He was seen by an emergency doctor at Baptist Medical Center about 9:45 p.m., released, and given discharge instructions.
On July 19 or 20, 2010, Ms. Lombardi received a paper entitled Adult Discharge Instructions on a Baptist Health form dated July 17, 2010. It indicated that Petitioner had been in the vehicle collision and had been treated for abrasions and a contusion on his right knee. In the instructions, Petitioner was told to take medications as instructed, follow up with the doctor in two days, and return to the emergency room for worsening symptoms. A box was checked indicating "no work for 2 days." Ms. Lombardi interpreted the note as excusing Petitioner from work on Sunday and Monday, and therefore expected Petitioner to return to work on Tuesday, July 20, 2010.
When Petitioner did not return to work on Tuesday, Ms. Lombardi called him. Petitioner said he did not realize that the doctor's note had excused him for only two days.
Ms. Lombardi told Petitioner that it did, and she told him he needed to come to work that day. Petitioner complained that his
arm and leg were still hurting. Petitioner said he would return to work that afternoon, but did not.
Petitioner did not come to work on Wednesday, July 21, 2010. Petitioner left a message for Ms. Lombardi and she called him about 10 a.m. Petitioner told Ms. Lombardi that he had gone to the doctor the day before and had another note excusing him from work. Ms. Lombardi asked Petitioner why he had not called her or the supervisor to let them know. Petitioner stated that he had called the supervisor, but had been unable to reach him and had been asked to call back. Petitioner said he did not call back because he did not get out of the doctor's office until after 5:00 pm. Ms. Lombardi directed him to have the note sent to her by facsimile transmission (fax).
Ms. Lombardi received a form faxed from Baptist Health entitled "Discharge Instruction" about 4:38 p.m. that day, as indicated in her note prepared for Petitioner's file. It had a subtitle of "Work Release Form." The form stated that Petitioner had been seen again on July 21, 2010, and that he could return to work on July 25, 2010. The form had date and time blocks indicating "July 21, 2010" and "4:31 p.m."
Ms. Lombardi testified that the form from Baptist Health indicated that Petitioner had been seen by a doctor that same day and that "I received it shortly after-–there was a discharge time on it."
On the following day, July 22, 2010, Ms. Lombardi again called Petitioner. When asked about an excuse from the doctor whom Petitioner had seen on July 20, 2010, Petitioner replied, "Oh, that was a different doctor." Petitioner said that the excuse from the visit on July 21, 2010, was from the same doctor he saw on July 17, 2010. Ms. Lombardi's file note stated that this was "the second time that Mitchell has incurred absences with inconsistency in the facts surrounding that absence."
Petitioner gave evasive and inconsistent testimony at hearing about whether there was ever a third doctor's excuse, in addition to the excuses of July 17, 2010 and July 21, 2010. Any of Petitioner's testimony suggesting that there was third excuse was not credible. There were only two doctor's excuses.
On July 22, 2010, Ms. Lombardi filled out a "Status/Payroll Change Report" that discharged Petitioner from employment at North Florida. In the "Reason" portion of the form, Ms. Lombardi wrote, "Excessive absenteeism and multiple incidences of inconsistent facts surrounding his absences."
Petitioner was immediately notified by telephone that his employment had been terminated. In that conversation, Petitioner asked Ms. Lombardi why he was being discharged.
Ms. Lombardi told Petitioner that the basis for his discharge was his poor attendance.
Petitioner was recovering from the injuries he received in the accident for about a week-and-a-half. After that he was fully recovered.
Petitioner's substantial interests are affected by Respondent's decision to discharge him. It has been difficult to find work in the depressed economy and Petitioner has financial responsibilities. Petitioner has three children. Petitioner was employed by Wage Solutions, working the warehouse at Liberty Furniture, unloading furniture and bringing it to the showroom from March 2011 to August 2011. Petitioner lost that job because that business closed. At the time of hearing Petitioner was not employed.
Petitioner went to the Florida Commission on Human Relations. He did not complain to them that he had been discriminated against on the basis of a handicap or disability. He just wanted an investigation into his discharge because he believed he had been terminated unfairly. He testified:
Doing – I guess, telling my side of the story to file whatever they wanted me to file. I didn't even know it was doing – about the disability or not. I didn't know they signed me up under that. The only thing I thought, they were going to investigate to see why I got terminated.
* * *
And from there, I guess that – that's it. I knew I had to come to court from there, so I was just really based on that. I knew I had
to show up to court for – I wasn't looking for all of this to come down to this. The only thing – I just wanted to know why I got fired, because I – about my attendance or being absent, but I had excuses for them.
On October 12, 2011, Petitioner filed a Petition for Relief against Respondent claiming an unlawful employment practice, alleging that he was wrongfully fired because of a mishap, which was referred to the Division of Administrative Hearings the same day.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case under sections 120.569, 120.57(1), and 760.11(7), Florida Statutes (2011).
This case was filed under the Florida Civil Rights Act, sections 760.01–760.11 and 509.092, Florida Statutes (2010).1/
Respondent is an employer as that term is defined in section 760.02(7).
Petitioner has standing to obtain an administrative hearing.
Section 760.11(1) provides that an aggrieved person may file a complaint with the Commission within 365 days of the alleged violation. Section 760.11(7) provides that an aggrieved person may request an administrative hearing within 35 days
following a finding of no reasonable cause by the Commission. Petitioner timely filed his complaint, and following the Commission's initial determination, timely filed his Petition for Relief requesting an administrative hearing.
Petitioner has the burden of proving by a preponderance of the evidence that the Respondent committed an unlawful employment practice. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 760.10(1)(a) provides that 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 race, color, religion, sex, national origin, age, handicap, or marital status." The Florida Civil Rights Act thus prohibits an employer from discharging an employee based on a handicap, unless the absence of the handicapping condition is necessary based on a bona fide occupational qualification. Davidson v. Iona-Mcgregor Fire Prot. & Rescue Dist., 674 So. 2d 858, 860 (Fla. 2nd DCA 1996).
Florida Civil Rights Act provisions prohibiting discrimination on the basis of handicap are construed in conformity with the federal Americans with Disabilities Act (ADA). Greene v. Seminole Elec. Co-op., Inc., 701 So. 2d 646,
647 (Fla. 5th DCA 1997); Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).
Discrimination can be established through direct or circumstantial evidence. U.S. Postal Serv. Bd. of Gov'nrs v. Aikens, 460 U.S. 711, 714 (1983).
Direct evidence of discrimination is evidence that, if believed, establishes the existence of discriminatory intent behind an employment decision without inference or presumption. Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1086 (11th Cir. 2004).
There was no direct evidence to suggest that Respondent regarded Petitioner as handicapped. Respondent indicated that the basis for termination of employment was absenteeism and untruthful statements about reasons for his absences. Petitioner did not identify any specific comments or incidents which could be considered unambiguous examples of discrimination, and did not argue that this was a direct- evidence case.
Petitioner sought to prove discrimination through circumstantial evidence. In some disability2/ cases, in which the employer admits that challenged action was based in whole or in part on the employee's disability, the issue is whether the employee is qualified despite disability, or what accommodations are reasonably available. Here, however, Respondent maintains that it did not consider Petitioner to be disabled, and that any
disability played no part in its decision-making process. In making an inquiry into an employer's motivation, it is appropriate to use the analysis established by the Supreme Court for race and gender discrimination cases arising under Title VII, as set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), later refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Barth v. Gelb, 2 F.3d 1180, 1185 (D.C.
Cir. 1993); Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994).
Under McDonnell-Douglas, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent has the burden of articulating some legitimate, non-discriminatory reason for the action taken against Petitioner. It is a burden of production, not persuasion. If a non-discriminatory reason is offered by Respondent, the burden then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination.
To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination as the result of his
disability. St. John's County Sch. Dist. v. O'Brien, 973 So. 2d
535 (Fla. 5th DCA 2007).
The Florida Civil Rights Act does not define the term "handicap," but the Fair Housing Act, immediately following it in the Civil Rights Title of the Florida Statutes, does. Section 760.22(7) provides that the term "handicap" means a person has a physical or mental impairment which "substantially limits one or more major life activities," or he or she has a record of having, or is regarded as having, such physical or mental impairment; or a person has a developmental disability as defined in section 393.063. This Fair Housing Act definition has been applied in employment discrimination cases. Greene v. Seminole Elec. Coop., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA
1997)(applying Fair Housing Act's definition of "handicapped" to find that FCRA protects persons with perceived disabilities).
This definition is also consistent with the definition of disability in the Americans with Disabilities Act. Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir. 1996).
Regulations promulgated by the Equal Employment Opportunity Commission (EEOC) interpreting the ADA state that major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working." 29 C.F.R.
§ 1630.2(i); Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
While an impairment need not necessarily last for more than six months to be considered "substantially limiting," the duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last for only a short period of time are typically not covered, although they may be if they are sufficiently severe. Lewis v. Fla. Default Law Group, P.L., 2011 U.S. Dist. LEXIS 105238 (M.D. Fla. Sept. 15, 2011).
Petitioner failed to prove that he had an "actual" disability under the Florida Civil Rights Act. While he testified that he was in pain, he failed to offer any evidence that impairment resulting from the accident "substantially limited" the performance of any major life activity. Even if Petitioner had testified as to a range of activities he could no longer perform, the evidence was clear that at most Petitioner would have been limited for only a few days. Given the lack of evidence of any substantial limitation and the undisputed short term nature of the injuries, Petitioner did not demonstrate that he was "substantially limited" in performing any major life activities within the meaning of the statutes. Lewis v. Fla. Default Law Group, P.L., 2011 U.S. Dist. LEXIS 105238 (M.D. Fla.
Sept. 15, 2011). See also Richio v. Miami-Dade County, 163 F. Supp. 2d 1352, 1361-1362 (S.D. Fla. 2001).
As noted earlier, the statutory definitions of disability also may encompass individuals without an "actual" disability. While there was no evidence in this case that Petitioner "had a record" of having an impairment or suffered from a developmental disability, the possibility that Respondent might have regarded Petitioner as having an impairment should be considered.3/ See Davidson v. Iona-McGregor Fire Prot. & Rescue
Dist., 674 So. 2d 858, 860 (Fla. 2nd DCA 1996).
However, there was no evidence that anyone, including Petitioner and Respondent, was under the impression that Petitioner was disabled as a result of the accident. The doctor's note originally provided to Respondent had indicated that Petitioner was excused from work for only two days, and it was in fact the belief of Respondent that Petitioner was fully able to return to his duties after that time which prompted the telephone call to him on Tuesday asking why he was not at work.
Moreover, impairments that are transitory and minor are not sufficient to support a claim of "being regarded as having such an impairment." The ADA was amended in 20084/ to define this phrase as follows:
(3) Regarded as having such an impairment For purposes of paragraph (1)(C):
An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
42 U.S.C. § 12102(3). Thus, injuries with an actual or expected duration of six months or less cannot be the basis of a "regarded as" claim of disability discrimination. See White v. Interstate Dist., 438 Fed. Appx. 415 (6th Cir. Tenn. 2011)(leg fracture with limitations lasting for a month or two was "transitory" under ADA and petitioner could therefore not establish a "regarded as disabled" claim ).
Neither was there any evidence of the third prong necessary to prove a prima facie case of discrimination. There was simply no testimony or other evidence to suggest that Respondent was subjected to unlawful discrimination on the basis of a real or perceived disability.
Petitioner therefore failed to demonstrate a prima facie case of discrimination on the basis of handicap or disability.
Even had Petitioner been able to establish a prima facie case of discrimination, Respondent articulated a legitimate, non-discriminatory reason for terminating Petitioner. Respondent met that burden of production with the testimony of Ms. Lombardi that Petitioner was terminated because of his excessive absenteeism and because Petitioner misrepresented that he had already received a doctor's excuse for missing work on Tuesday and Wednesday, when actually he had not yet received it.
Petitioner offered no evidence to suggest that Respondent's reason for terminating Petitioner was simply a pretext for unlawful discrimination. See Young v. Gen. Food Corp., 840 F.2d 825, 830 (11th Cir. 1988)("Once a legitimate, nondiscriminatory reason for dismissal is put forth by the employer, the burden returns to the plaintiff to prove by significant probative evidence that the proffered reason is a pretext for discrimination.").
The evidence showed that Petitioner eventually obtained written medical excuses for each day missed following his unfortunate car accident. Under these circumstances, it is understandable that Petitioner, and others, might believe that his termination was unjustified. However, Respondent presented a plausible business reason for the decision to terminate Petitioner, based upon Petitioner's earlier attendance history
and his lack of candor regarding this most recent absence, and there was no evidence that the true motive was actually discrimination. The decision to terminate Petitioner may have been wrong, or even unfair, but there was no evidence that Respondent's decision had anything to do with any actual or perceived disability.
The law is not concerned with whether an employment decision is fair or reasonable, but only with whether it was motivated by unlawful animus. See Nix v. WLCY Radio/Rahall
Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984).
That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint.
DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2012.
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version, which was the law in effect when the alleged unlawful employment practice took place.
2/ The Florida Civil Rights Act uses the term "handicap," while parallel federal legislation has been amended to substitute the term "disability." The terms have the same meaning in analysis here. See Smith v. Avatar Props., 714 So. 2d 1103, 1105 (Fla. 5th DCA 1998).
3/ The "regarded as" prong was included in the ADA to address situations in which "unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities" resulted in discrimination. Lewis v. Fla. Default Law Group, P.L., 2011
U.S. Dist. LEXIS 105238 (M.D. Fla. Sept. 15, 2011)(citing a 2008 Senate Statement of Managers and the House Judiciary Committee Report).
4/ ADA Amendments Act of 2008, Pub. L. No. 110-32, 122 Stat. 3553
(codified at 42 U.S.C. 12102).
Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
All parties have the right to submit written exceptions within 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.
