02-000234 Dena Wever vs. Tel-Part, Inc. Status: Closed Recommended Order on Thursday, July 25, 2002.

Summary: Petitioner failed to prove that she was discriminated against based upon her alleged disability by her employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENA WEVER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0234

)

TEL - PART, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

William R. Pfeiffer, held a formal hearing in the above - styled

case on April 12, 2002, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Dena Wever, pro se

2913 Englewood Drive

Largo, Florida 34701

For Respondent: Richard L. Bradford, Esquire

Thompson, Sizemore, & Gonzalez, P.A.

501 East Kennedy Boulevard

Suite 1400

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent, Tel - Part, Inc., violated Chapter 70 of

the Pinellas County Ordinance, as amended, and Title I of the

Americans with Disabilities Act by denying Petitioner, Dena

Wever, a reaso nable accommodation for her disability.

PRELIMINARY STATEMENT

On May 26, 1998, Petitioner filed a Charge of

Discrimination with the St. Petersburg Human Relations Division

alleging that Respondent discriminated against her based on her

disability by denyi ng her a reasonable accommodation. A

reasonable cause determination on the disability discrimination

claim was entered on July 11, 2001.

The parties proceeded to a formal DOAH hearing on April 12,

2002, wherein Petitioner presented the testimony of Stepha nie

Crocker, Sandra Heap, Jon Weaver, and herself. Respondent

presented the testimony of Christopher Laberio and Menahem Roth.

Petitioner's Exhibits A through M were admitted into evidence.

Respondent's Exhibit 4 was admitted into evidence.

FINDINGS OF FACT

1. Respondent, Tel - Part, Inc. ("Tel - Part"), supplies

telecommunication products to consumers. Menahem Roth is the

vice president and co - owner of Tel - Part and handles the daily

operations. Mr. Roth's wife is the president of the company and

also co - owner. Tel - Part is located at 9190 Ulmerton Road, in

Largo, Florida.

2. Employees at Tel - Part's were assigned various

responsibilities on a day - to - day basis that included the

following: Tel - Part office staff received work orders from

various customers and processed the paper work. Thereafter,

warehouse employees retrieved the requested item, packed it in a

box, taped and weighed the box, marked it, and set the box on

one of two shipping lines located on the floor of the warehouse.

The officer manager prepared an invoice for the outgoing

shipments and typically, the office clerk prepared a shipping

label for the outgoing shipments and placed the labels on the

boxes.

3. Petitioner, Dena Wever was employed at Tel - Part as the

office manager from February 1992 until March 24, 1998. Her

duties as the office manager included invoicing, accounts

receivables, accounts payable, personnel matters, payroll, and

monthly sales reports. She was also responsible for the

administration of health insurance and retirem ent pay for Tel -

Part employees. During her employment at Tel - Part, Ms. Wever

was assigned an office clerk to assist her. The duties of the

office clerk included answering the phones, filing, and

performing general office duties. Again, the office clerk

usually placed the labels on the boxes for outgoing shipments.

During her tenure of employment between 1992 and 1998, 12

different office clerks were assigned to assist her. Ms. Wever

admitted that the office clerk position was rarely unfilled.

4. On Ma y 24, 1997, Ms. Wever was injured in an automobile

accident unrelated to her employment with Tel - Part. The

accident caused Ms. Wever to experience pain in her neck,

shoulders, and back. Ms. Wever's limitations included: the

inability to lift more than t en pounds; no excessive reaching;

and no repetitive bending or stooping. After her surgery in

March 1988, Ms. Wever wore a back brace to provide support.

5. Although Ms. Wever suffered from physical and mental

health problems, her limitations admittedly did not affect her

ability to perform administrative office functions. Ms. Wever

indicated that she could handle the responsibilities of office

manager.

6. In December 1997, Ms. Wever requested Mr. Roth to

provide her with a keyboard tray for her compute r's keyboard

because the keyboard was positioned too high and was

uncomfortable. Mr. Roth accommodated her request and provided

the keyboard tray.

7. On or about December 22, 1997, Ms. Wever's office

clerk, Sandra Heap, resigned from Tel - Part. Consequen tly,

Ms. Wever took the initiative to place the labels on the

outgoing shipments. On or about January 9, 1998, Ms. Wever

requested Mr. Roth to place an elevated table in the shipping

line enabling her to place labels on the outgoing shipments

without bend ing to the floor. In making this request, Ms. Wever

provided a note to Mr. Roth, which in pertinent part read:

Due to medical reasons, I am not able to

repetitively apply labels to the boxes.

Could you possibly place a table to make

this task easier.

8. Due to the limited space and dysfunction that a large

table would create in the warehouse, Mr. Roth denied her request

but, instead, ordered other employees to assume the

responsibility of placing labels on the outgoing shipments.

Initially, Mr. Roth instructed Jon Wever, Ms. Wever's husband to

place the labels on the boxes; however, on January 14, 1998,

Ms. Wever informed Mr. Roth that Mr. Wever was unable to

consistently assist. Immediately thereafter, Mr. Roth ordered

Bob Zam and Chris Laberio to a ssume the task of placing labels

on the boxes. Apparently Mr. Zam and Mr. Laberio were deficient

with the assignment and Ms. Wever continued to affix the labels.

9. While Ms. Wever indicated that she did not receive

sufficient help from Mr. Zam and Mr. L aberio, she admitted that

Mr. Roth specifically instructed them, as well as others, to

handle the responsibility of placing labels on the outgoing

shipments. In addition, contrary to Ms. Wever's testimony,

Mr. Laberio indicated that he fully assisted with the labeling

while Ms. Wever was employed at Tel - Part and Mr. Wever stated

that he assisted approximately 50 percent of the time.

10. Clearly, Mr. Roth relieved Ms. Wever of the task of

applying the labels, ordered alternative employees to perform

the task, and neither disciplined, threatened discipline nor

penalized Ms. Wever for failing to place the labels on the

outgoing shipments.

11. On January 28, 1998, Ms. Wever requested a medical

leave of absence which was approved by Mr. Roth. On February 4,

1998, Ms. Wever's doctor at the Florida Spine Institute provided

Ms. Wever with a note indicating that she suffered a "total

temporary disability" from January 22, 1998 thru February 22,

1998 and could not work.

12. Upon her return from medical leav e on February 22,

1998, Ms. Wever requested to work part - time, approximately four

hours a day. Although her part - time restriction was not imposed

by her doctor, she believed that it was best for her to work in

a reduced capacity. Mr. Roth accommodated he r request. From

the time of her return on February 22, 1998, until she failed to

report to work and was deemed to have resigned on March 24,

1998, Ms. Wever did not place labels on outgoing shipments.

13. Following her resignation, Ms. Wever underwent

su rgery, was deemed "disabled" and began receiving Social

Security benefits.

14. In July 2001, Ms. Wever accepted employment at

Baycrest Industries.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.57(1), Florida Statutes.

16. Petitioner, Dena Wever, brought this action against

Respondent, Tel - Part, Inc., pursuant to Chapter 70 of the

Pinellas County Ordinance, and Title I of the Americans with

Disabilities Act ("ADA"). Specifically, Ms. Wever claims that

Tel - Part failed to provide her with a reasonable accommodation

for her disability, i.e. , her back impairment.

17. The parties have stipulated that Ms. Wever's

disability claim should be analy zed in accordance with the

provisions of the ADA and case law, interpreting the same.

18. To satisfy her claim, Ms. Wever has the burden of

establishing by preponderant evidence a prima facie case of

unlawful discrimination. McDonnell Douglass Corporati on v.

Green , 411 U.S. 792 (1973). If the prima facie case is

demonstrated, a presumption of discrimination arises and the

burden shifts to the employer to articulate a legitimate, non -

discriminatory reason for its action. The burden of producing

evidence is next placed on the petitioner to demonstrate that

the proffered reason was pretextual. However, the ultimate

burden of persuasion remains with the plaintiff or petitioner.

St. Mary's Honor Center v. Hicks , 509 U.S. 502, (1993).

Disability under ADA

19. In order for Petitioner to demonstrate a prima facie

case under the proof standard set forth above, Petitioner must

demonstrate:

(1) She is handicapped within the meaning of the ADA;

(2) She is otherwise qualified for the position from which

she was terminated; and

(3) She suffered an adverse employment action under

circumstances which give rise to an inference that the

employment action was based solely upon her handicap.

20. Pursuant to 42 U.S.C. Section 12101 and the ADA, the

term "disabilit y" is defined as:

(A) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment."

21. The regulations interpreting the ADA define

"substantially limits" as follows:

The term substantially limits means [u]nable

to perform a major life activity that the

average person in the general population can

perform; or [s]ignificantly restricted as to

the condition, manner or duration under

which an individual can perform a particular

major life activity as compared to the

average person in the general population can

perform that same major life activity . . .

The following factors should be considered

in determining whether an individual is

substantially limited in a major life

activity; (i) the nature and severity of the

impairment; (ii) the duration or expected

duration of the impairment; and (iii) the

permanent or long term impact, or the

expected permanent or long term impact of or

resulting from the impairment.

Maynard v. Pneumatic Products Corp. , 233 F.3d 1344, 1347 (11th

Cir. 2000) (quoting 29 C.F.R. Subsection 1630.2(j)(1), (2)).

22. "Substantially" in the phrase "substantially limits"

sug gests "considerable" or "to a large degree," and thus clearly

precludes impairments that interfere in only a minor way with

performing manual tasks. Toyota Motor Manufacturing, Kentucky

v. Williams , 122 S. Ct 681 (2002). Moreover, because "major"

means i mportant, "major life activities" refers to those

activities that are of central importance to daily life. Id.

To be substantially limited in the specific major life activity

of performing manual tasks, an individual must have an

impairment that prevents or severely restricts the individual

from doing activities that are of central importance to most

people's daily lives.

23. In addition, the impairment's impact must be permanent

or long - term. See 29 C.F.R. Section 1630.2(j)(2)(ii - iii) .

Merely proving t he existence of a physical impairment, without

addressing any limitation on major life activities, is not

sufficient to prove disability under the Act. Rather, the ADA

plaintiff must show that the impairment substantially limits a

major life activity.

24 . In the case at hand, Petitioner has not demonstrated

that she is disabled as defined by the ADA. She has not shown

that she is substantially limited in any major life activity.

While Ms. Wever indicated that she has experienced pain in her

neck, shoul ders, and back, caused by an automobile accident and

noted that she cannot lift more than ten pounds, engage in

excessive reaching, or repetitive bending, she did not present

any evidence showing that she is substantially limited in any

major life activity .

25. In addition, Ms. Wever's note from her physician dated

February 4, 1998, does not support her claim that she was

permanently or long - term disabled. The note merely indicates

that Ms. Wever had a "total temporary disability" from

January 22, 1998 through February 22, 1998. Moreover, Ms. Wever

indicated that her physician did not change her status during

the time that she remained employed at Tel - Part. The temporal

restrictions set forth in the doctor's note suggest that

Ms. Wever's alleged disabi lity was temporary. The ADA protects

employees with permanent or long term disabilities, not

temporary disabilities. See 29 C.F.R. Section 1630.2(j).

26. To the extent that Ms. Wever contends that she is

substantially limited in the major life activity of working, she

must show that she is significantly restricted from performing

in a class of jobs or broad range of jobs. The ADA regulations

provide that "substantially limits" means:

[S]ignificantly restricted from performing

in a class of jobs or bro ad range of jobs in

various classes as compared to the average

person having comparable training, skills,

and abilities. The inability to perform a

single particular job does not constitute a

substantial limitation in the major life

activity of working.

20 C.F.R. Section 1630.2(j)(3)(i).

27. Ms. Wever provided no evidence that she was

substantially limited in the major life activity of working,

admitted that she can still perform the tasks of an office

manager, and is currently working full - time in an of fice

setting. While she was limited from lifting and bending, and

may currently have the same restrictions, she has not shown that

her limitations significantly restrict her from performing in a

class of jobs or broad range of jobs. See Stein v. Ashcroft ,

284 F.3d 721 (9th Cir. 2002) (finding that inability to lift

heavy boxes related to plaintiff's outreach work does not rise

to the level of a substantial impairment with respect to the

major life activity of working); see also Bolton v. Scrivner,

Inc. , 3 6 F.3d 939, 944 (10th Cir. 1994) (inability to stand on

concrete floor all day because of permanent partial disability

to feet insufficient alone to show disability under ADA); McKay

v. Toyota Motor Manufacturing USA , 110 F.3d 369, 373 (6th Cir.

1997) (den ied disability status to plaintiff who could not lift

more than 20 pounds, use vibrating equipment, or make repetitive

use of his right hand); Wooten v. Farmland Foods , 58 F.3d 382,

386 (8th Cir. 1995) (denied disability status to a plaintiff who

could not lift more than 20 pounds or work in cold environment,

or work with meat products); and Ray v. Glidden Company , 85 F.3d

227 (5th Cir. 1996) (holding that an employee who was unable to

lift 44 - 56 pounds continuously throughout the day but able to

do so for one to three and a half hours in one day was not

disabled).

Essential Functions of Office Manager Position

28. Ms. Wever alleges that she was denied an accommodation

because Tel - Part did not provide her with a table to assist her

in the job of placing la bels on boxes or outgoing shipments.

29. The term "essential functions" is defined by the EEOC

regulations as "the fundamental job duties of the employment

position the individual with the disability holds" and "does not

include the marginal functions o f the position." 29 C.F.R.

Section 1630.2(n)(1); LaChance v. Duffy's Draft House, Inc. , 146

F.3d 832, 835 (11th Cir. 1998). The employee must actually

perform the function the employer asserts is essential.

LaChance , 146 F.3d at 835.

30. The ADA provid es that in determining what functions of

a given job are deemed essential, "consideration should be given

to the employer's judgment . . . and if an employer has prepared

a written job description before advertising or interviewing

applicants for the job, this description shall be considered

evidence of the essential job functions of the job." 42 U.S.C.

Section 12111(8); Holbrook City of Alpharetta, Ga. , 112 F.3d

1522, 1526 (11th Cir. 1997).

31. Regulations promulgated under the ADA further identify

thr ee factors that can be considered to determine whether a

particular task is an essential part of a job. They include:

(1) the reason the position exist is to

perform the function;

(2) there are a limited number of employees

available among whom the p erformance of the

job function can be distributed; and

(3) the function is so highly specialized

that the incumbent in the position was hired

for his or her expertise or ability to

perform the particular function.

See Holbrook , 112 F.3d at 1526.

32. I n the case at hand, placing labels on boxes in the

warehouse was not an essential function of Ms. Wever's position

as office manager. She was responsible for handling insurance,

retirement plans, accounts receivables, accounts payable,

personnel matters, payroll, accounting, and monthly sales

reports. In addition, throughout her employment at Tel - Part,

she usually had an office clerk. In fact, Ms. Wever testified

that the position of office clerk was rarely unfilled and that

it was the office clerk, n ot the office manager who handled the

task of placing labels on outgoing shipments.

33. Ms. Wever also presented the testimony of Stephanie

Crocker and Sandra Heap, former office clerks, who admitted that

placing labels on boxes was primarily handled by the office

clerk. And although, Tel - Part does not have written job

descriptions for the office manager position, consideration is

given to the employer's determination of the essential functions

of the office manager position. There is no indication tha t the

office manager's position exists to perform the function of

placing labels on boxes or outgoing shipments. In fact, there

were a number of lower level employees available for that

function. Moreover, the task did not require any highly

specialized skill. As Ms. Heap noted, the task simply required

the ability to peel a sticker and be able to lift the box and

move it.

34. Ms. Wever failed to satisfy her burden of showing that

placing labels on outgoing shipments was an essential function

of her p osition as officer manager.

Reasonable Accommodation

35. Ms. Wever alleges that Tel - Part denied her a

reasonable accommodation by failing to provide her with a table

to help her place labels on outgoing shipments. Tel - Part,

however, alleges that they pro vided Ms. Wever with a reasonable

accommodation for her alleged impairment by removing

responsibility for applying labels from Ms. Wever and assigning

the task to other employees, i.e. , Jon Wever, Bob Zam,

Christopher Laberio.

36. Pursuant to 42 U.S.C. Se ction 12111 (9), and the ADA,

a "reasonable accommodation" may include:

(A) Making existing facilities used by

employees readily accessible to and usable

by individuals with disabilities; and

(B) Job restructuring, part - time or

modified work schedules, reassignment to a

vacant position, acquisition or modification

of equipment or devices, appropriate

adjustment or modifications of examinations,

training materials or policies, the

provision of qualified readers or

interpreters, and other similar

accommod ations for individuals with

disabilities.

37. Tel - Part assigned the task of placing labels on boxes

to Mr. Laberio, Mr. Zam, and Mr. Wever, Ms. Wever's husband.

Notwithstanding their ineffectiveness at the task, Ms Weaver,

against Mr. Roth's direction, continued to affix the labels and

failed to reasonably advise Mr. Roth of her activity.

38. By shifting Ms. Wever's temporary, and self - assigned

task of placing labels on outgoing shipments to other employees,

Tel - Part complied with the requirements of the ADA. Tel - Part

restructured the organizational responsibilities which is

clearly permitted under 42 U.S.C. Section 12111(9).

39. Petitioner failed to demonstrate that Respondent did

not accommodate for her alleged disability. Furthermore,

Petitione r failed to show that Tel - Part discriminated against

her for any reason including her alleged disability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the City of St. Petersburg Community

Affairs De partment enter a final order dismissing the

Petitioner's Complaint.

DONE AND ENTERED this 25th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2002.

COPIES FURNISHED :

Richard L. Bradford, Esquire

Thompson, Sizemore & Gonzalez, P.A.

Post Office Box 639

Tampa, Florida 33601

Stephanie N. Rugg

City of St. Petersburg

175 5th Street, North

St. Petersburg, Florida 33701

Dena Wever

2913 Englewoo d Drive

Largo, Florida 33771

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 should be filed with the agency that

will issue the Final Order in this case.