00-001794 Michelle C. Phillips vs. Orange Lake Country Club Realty, Inc. Status: Closed Recommended Order on Friday, September 28, 2001.

Summary: Petitioner proved she was disabled and qualified for a job selling timeshare, but failed to prove she was fired due to discrimination against persons with hepatitis C.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE C. PHILLIPS, )

)

Petitioner, )

)

vs. ) Case No. 00-1794

)

ORANGE LAKE COUNTRY CLUB )

REALTY, INC., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Orlando, Florida, on August 1, 2001.

APPEARANCES

For Petitioner : Edward R. Gay

Law Firm of Edward R. Gay, P.A.

1516 East Conco rd Street

Orlando, Florida 32803

For Respondent : Richard A. DuRose

Foley & Lardner

111 North Orange Avenue, Suite 1800

Post Office Box 2193

Orlando, Florida 32801-2386

STATEMENT OF THE ISSUE

The issue is whether Respondent has unlawfu lly

discriminated against Petitioner in employment and, if so, the

remedy.

PRELIMINARY STATEMENT

By Petition for Relief filed March 15, 2000, Petitioner

alleged that Respondent violated the Florida Civil Rights Act of

1992, as amended, by terminating her employment as a real estate

salesperson. Petitioner alleged that Respondent declined to

accommodate her illness of chronic hepatitis C by denying her

request to work a schedule of three consecutive days at work

followed by two consecutive days off from work followed by three

consecutive days at work.

Respondent has denied the material allegations and

requested a formal hearing. Additionally, Respondent filed a

motion to dismiss the petition as untimely filed.

By Recommended Order of Dismissal entered o n July 10, 2000,

the Administrative Law Judge recommended that the Florida

Commission on Human Relations enter a final order dismissing the

petition as untimely filed. The Administrative Law Judge noted

that the petition was not filed within 35 days of the issuance,

on January 31, 2000, of a Notice of Determination : No Cause.

However, by Order dated April 19, 2001, and filed May 23, 2001,

the Florida Commission on Human Relations entered an Order

Remanding Petition for Relief from an Unlawful Employment

Practice, which the Administrative Law Judge accepted by Order

entered on June 1, 2001.

At the hearing, Petitioner called three witnesses and

offered into evidence 12 exhibits : Petitioner Exhibits 1-12.

Respondent called one witness and offered into evidence 11

exhibits : Respondent Exhibits 1-11. All exhibits were

admitted.

The court reporter filed the transcript on August 29, 2001.

The parties filed their proposed recommended orders by

September 17, 2001.

FINDINGS OF FACT

1. Petitioner was born on November 1, 1953. She is a

licensed real estate salesperson. Respondent first hired her in

July 1993 to sell timeshare units at its large resort

development in Orange County.

2. Not long prior to her initial employment with

Respondent, Petitioner was diagnosed with hepatitis C, which

Petitioner disclosed to Respondent prior to being hired.

Hepatitis C is a chronic disease that is relatively inactive and

active at times. During periods that her disease is active,

Petitioner suffers extreme fatigue, nausea, and lack of

appetite.

3. In 1996, Petitioner was diagnosed with rheumatoid

arthritis. She also suffers from several other conditions, but,

with the possible exception of recurrent back problems, they do

not appear to have played any role in the facts of this case.

4. The sale of timeshare units is an intensive, high-

volume form of real estate marketing. Respondent is a large

timeshare marketer, employing at any time 200-300 sales

consultants, such as Petitioner. At the time of the hearing,

which appears to be typical during the period in question,

Respondent was marketing weekly units for 325 dwelling units

that were online, generating a total of over 15,000 units for

sale. As complexes are sold, the developer constructs new

complexes for the sale of additional timeshare units. Weekly

units cost $11,000-$12,000.

5. An integral part of timeshare sales is the production

of prospective buyers. Respondent enters into agreements with

various brokers to produce prospective buyers. In return for a

premium to the customer, such as free tickets to a nearby theme

park, prospective buyers visit the timeshare development and

take a tour of the facility with a sales consultant. Respondent

pays $250-$300 for each of the 40,000 tours that take place

annually at the timeshare development.

6. Respondent plans carefully to ensure that the number of

prospective buyers is matched to the number of sales consultants

scheduled for a particular day. Respondent schedules the daily

arrival of prospective buyers at three or four specified times,

ranging from early morning to early afternoon. Respondent

conducts tours everyday of the year except Christmas.

7. In the vast majority of cases, one sales consultant

conducts the tour for one family or, in the case of individual

buyers, one person. When the number of prospective buyers

exceeds the number of sales consultants, consultants may conduct

group tours or buyers may have to wait; however, in either case,

the likelihood of a sale is greatly reduced.

8. The normal schedule for a sales consultant is four days

on, followed by two days off, although some sales consultants

work five days, followed by two days off. Reporting to work by

6:50 a.m., sales consultants meet briefly for a morning sales

meeting. The first wave of prospective buyers reaches the site

at 7:30 a.m.

9. Each sales consultant devotes considerable effort to

developing personal rapport with the prospective customer.

Although the walking tour of the facility may only take 30

minutes, the total time that the consultant spends with the

customer is considerably longer; Petitioner typically spent

three hours with each prospective customer. A sales consultant

had to be available at the complex until 3:00 p.m., unless his

or her supervisor released the consultant earlier. However, if

the consultant sold a unit, he or she was free to leave at that

time under Respondent's "write and ride" policy.

10. Although Respondent trained new consultants, sales

consultants were free to develop their own sales techniques.

Supervisors sometimes accompanied underproducing consultants on

their tours, but never successful consultants. Respondent

developed her own presentation in terms of content and style.

11. Respondent enforced attendance policies among the

sales consultants. Consultants wishing to take a vacation had

to obtain permission from their supervisors. Consultants

unexpectedly unable to report to work had to call their

supervisors prior to 6:45 a.m. on the day of their unscheduled

absence. In recognition of the fact that consultants had to be

onsite in order to sell timeshare units, these policies allowed

Respondent to schedule a sufficient number of consultants to

serve the expected number of prospective buyers for which

Respondent had paid on a particular day.

12. Respondent entered into a Sales and Marketing

Agreement with each sales consultant. The agreement provides

that each consultant is an independent contractor, not an

employee, and that Respondent shall pay sales consultants

exclusively on a commission basis.

13. Petitioner was employed by Respondent over five

different periods of time : July 16, 1993, through November 5,

1993; April 13, 1994, through May 17, 1994; December 1, 1994,

through May 23, 1995; June 3, 1996, through October 31, 1996;

and November 25, 1996, through January 7, 1997.

14. The 1993 termination was due to "statistics" and

"attendance." Presumably, "statistics" means low productivity.

15. A handwritten note in Petitioner's file suggests that

the 1994 termination was due to attendance.

16. No documentary evidence explains the reason for the

1995 termination. This was the first termination done by Jacki

Tutas, who was Petitioner's immediate supervisor from early 1995

through January 1997. The 1995 termination was probably due to

attendance. Petitioner missed 52 days of work from December 14,

1994, through May 17, 1995. Fourteen of these absences were "no

call, no show." Petitioner also admitted to missing several

days of work in May 1995, contesting only that she had received

permission not to call in each day, so that the missed work was

not "no call, no show."

17. The 1996 termination was due to "hepatitis C." The

person completing the form, who was not Ms. Tutas, indicated

that she would rehire Petitioner. Ms. Tutas completed another

form one week later for the same termination. Ms. Tutas

indicated that the termination was for attendance and that she

would not rehire Petitioner "unless she gets her health back."

18. In May 1996, Ms. Tutas contacted Petitioner about

returning to work. Petitioner agreed to do so and started

working the next month. However, during the first three months

of this period, Petitioner missed 20 days of work.

19. In August or September 1996, Petitioner asked

Ms. Tutas for a reduced schedule. In response to Ms. Tutas's

request for supporting documentation, Petitioner produced

medical information, but Ms. Tutas evidently found it too

general, so, about three weeks later, Ms. Tutas asked for a

doctor's letter.

20. By a form dated November 13, 1996, Petitioner's

physician stated that Petitioner had been totally disabled from

September 1996 due to chronic hepatitis and rheumatoid arthritis

and was cleared to return to work on November 19, 1996.

Interestingly, the period covered by this note excludes the

first three months of this term of employment, during which

Petitioner was absent 20 days. The physician advised Petitioner

to "limit work to 4 hours per day, no more than 3 days working

in a row," and requested a follow-up visit in two to three

months.

21. However, Respondent had already terminated Petitioner

by the time that Petitioner's physician had completed the one-

page form. Seeking her job back, on November 18, 1996,

Petitioner mailed a letter to Respondent's director of sales

stating that she was "ready and able to work, full-time." She

notes that she had taken a flu vaccination as a precautionary

measure and would resign if she missed one day due to "this

illness," which presumably refers to the hepatitis C.

22. Respondent rehired Petitioner about one week later,

and Petitioner testified that she did not miss another day of

work due to hepatitis or rheumatoid arthritis. However,

Petitioner missed a considerable amount of work.

23. Petitioner was "no call, no show" on November 27,

November 29, December 15, and December 22. She missed

December 26 through Decembe r 29 and then January 3 through

January 7, although only one of those days was "no call, no

show." However, Petitioner left early on December 30,

January 1, and January 2. Petitioner testified that she began

to suffer flu symptoms on December 24 and missed work due to the

flu and a upper respiratory infection. The first two absences

are unexplained, and the third may be due to an arrest of

Petitioner on December 14, in which the arresting officer found

Petitioner intoxicated.

24. On January 7, 1997, Respondent terminated Petitioner

for attendance. Ms. Tutas indicated that she would not rehire

Petitioner, stating: "She's not physically able to meet the

attendance standards. Been in and out, at least, 4 times. Told

her that if she can bring a letter from another resort in 6 mos.

that her attendance is acceptable we'll consider hiring her

back. After 6 mos."

25. Ignoring Petitioner's absences, she was an outstanding

producer in December 1996. She had a high percentage of sales

and a high percentage of sales that resulted in closings.

However, she had a very low number of tours. Coupled with the

disruption caused by her unexpected absences, Petitioner's

production was not satisfactory.

26. Petitioner claims that Respondent has unfairly treated

her. Respondent modified a work schedule of a another sales

consultant; however, she had recently suffered the death of a

son in college and wanted to devote time to a victims' advocacy

program. Another consultant missed a lot of work, but not

nearly as much work as Petitioner missed.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

28. Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to discharge an employee due

to a handicap.

29. To make a prima facie showing, Petitioner must prove

that she has a disability, she was qualified to do the job, and

Respondent discriminated against her due to her disability.

See , e.g. , Goldsmith v. Jackson Memorial Hospital Public Health

Trust , 33 F. Supp. 2d 1336 (S.D. Fla. 1998), aff'd. 198 F.3d 263

(11th Cir. 1999).

30. Petitioner has failed to make a prima facie showing.

She clearly suffers from the disabilities of hepatitis C and

rheumatoid arthritis, which both qualify as handicaps. She is

qualified to sell timeshare, as evidenced by her success in

doing so. However, she has presented no evidence that

Respondent has discriminated against her due to her disability.

31. Respondent terminated her due to poor attendance.

Petitioner's job required her presence at the complex as

scheduled, given Respondent's substantial investment in

producing prospective buyers. Petitioner repeatedly failed to

come to work when scheduled. By her own admission, the poor

attendance in the last two weeks of her employment was not even

due to her disabilities, further undermining her ability to make

a prima facie case.

32. Repeatedly, Petitioner failed to call in when she was

unable to report to work. Nothing in the record links this

failure to any disability. Petitioner was well aware of the

importance of consultants appearing for work when scheduled, yet

she did not bother to call in many times.

33. It is difficult to reconcile Petitioner's claim of

discrimination with the repeated decisions by Ms. Tutas to

rehire Respondent after firing her. Ms. Tutas and Respondent's

other managerial employees were obviously aware of Petitioner's

serious illnesses and obviously, in rehiring her, were not

discriminating against her on the grounds of these disabilities.

The facts clearly establish that Respondent justifiably required

attendance on the part of the sales consultants, and Respondent

justifiably terminated Petitioner for poor attendance--not due

to discrimination against Petitioner on the ground of her

disabilities. On the last termination, the absences were not

even due to Petitioner's disabling illnesses.

34. Under the circumstances, it is unnecessary to address

Respondent's alternative claims that Petitioner was an

independent contractor and Section 760.10 does not prohibit

discrimination against independent contractors, as distinguished

from employees.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 28th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September, 2001.

COPIES FURNISHED:

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32303-4149

Azizi Coleman, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32303-4149

Edward R. Gay

Law Firm of Edward R. Gay, P.A.

1516 East Concord Street

Orlando, Florida 32803

Richard A. DuRose

Foley & Lardner

111 North Orange Avenue, Suite 1800

Post Office Box 2193

Orlando, Florida 32801-2386

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 must be filed with the agency that

will issue the final order in this case.