04-003068 Oswald Norton vs. John G`s Restaurant, Inc. Status: Closed Recommended Order on Wednesday, January 26, 2005.

Summary: Respondent`s termination of Petitioner from employment was for good cause and was not discriminatory in violation of Chapter 760, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSWALD NORTON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3068

)

JOHN G'S RESTAURANT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on fo r formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on November 22, 2004, in West Palm

Beach, Florida.

APPEARANCES

For Petitioner: Stewart Lee Karlin, Esquire

Law Offices of Stewart Lee Karlin, P.A.

500 West Cypress Creek Road, Suite 230

Fort Lauderdale, Florida 33309

For Respondent: F. Dean Hewitt, Esquire

Rissman, Weisberg, Barrett,

Hurt, Donahue & McLain, P.A.

Post Office Box 4940

Orlando, Fl orida 32802 - 4940

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of his alleged disability.

PRELIMINARY STATEMENT

On January 26, 2004, Petitioner filed a Charge of

Discrimination with the Florida C ommission on Human Relations

("FCHR"), alleging that Respondent terminated his employment

after 12 years on the basis of his disability and perceived

disability. On July 27, 2004, the FCHR issued a Determination:

No Cause in which it found that no unlawfu l employment practice

had occurred in Petitioner's termination. On July 30, 2004,

Petitioner filed a Petition for Relief with the FCHR in which he

alleged that his termination by Respondent for willful

misconduct was a pretext for the true reason for his firing,

namely, that he suffered from diabetes. The matter was referred

to the Division of Administrative Hearings on August 31, 2004,

and was assigned to the undersigned Administrative Law Judge.

Following a brief continuance, this matter proceeded to h earing

in West Palm Beach, Florida, on November 22, 2004.

At the hearing, Petitioner presented the testimony of Susan

Barish, M.D., testified himself, and offered Exhibit numbered 1,

into evidence. Respondent presented the testimony of John

Giragos, Jr., Keith Giragos, and Wendy Yarbrough, and offered

Exhibits numbered 1 through 3, into evidence.

A Transcript was filed on December 15, 2004. After the

hearing, Respondent filed its Proposed Findings of Fact and

Conclusions of Law on December 3, 2004. P etitioner filed his

Proposed Findings of Fact and Conclusions of Law on

December 29, 2004.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent, John G's Restaurant, Inc., has operated a

restau rant located at 10 South Ocean Boulevard, Lake Worth,

Florida, since 1973.

2. Respondent began as a small business owned by John

Giragos, Sr., and was essentially operated by his family

including his children, Wendy Giragos Yarbrough; John "Jay"

Girago s, Jr.; and Keith Giragos.

3. In 1993, John Giragos, Sr., transferred ownership of

John G's to Wendy Giragos Yarbrough, Jay Giragos, and Keith

Giragos, and the restaurant has grown to the point where it now

employs approximately 40 employees, a significa nt percentage of

whom are minorities.

4. Petitioner, Oswald Norton, worked as a cook at John G's

for 12 years from October 1991 through March 20, 2003. His

typical day included working the grill in the morning and the

broiler in the afternoon.

5. Pet itioner was known as a hard - worker at John G's.

6. Petitioner was known to have a strong temper on the

job. On several occasions over the years Petitioner had

outbursts directed at his fellow employees.

7. Keith Giragos stepped in on many occasions to calm

Petitioner down when he was having an emotional outburst in the

kitchen.

8. On March 20, 2003, Petitioner cooked breakfast, but was

not feeling well in the afternoon. Petitioner sat on a stool in

the kitchen because he felt dizzy and lightheaded.

9. Petitioner believes he had told John "Jay" Giragos,

Jr., that he had not been feeling well for two weeks, had

blurred vision, was dizzy from time to time, and was on a

restricted diet.

10. Jay Giragos did not like his employees sitting down on

the job and commented on this to Petitioner.

11. Petitioner either threw or dropped forcefully a large

bag of frozen french fries on a table in the kitchen and yelled

at several employees who were working in the kitchen at the

time. French fries spilled out of the bag and were on the table

and the floor.

12. Jay Giragos told Petitioner that he should "get the

[expletive] out of the kitchen and go drive a truck."

Petitioner clocked out of the restaurant and went home.

13. In telling Petitioner to leave a nd go drive a truck,

Jay Giragos meant he should go home and calm down. Mr. Giragos

never told Petitioner explicitly that he was fired from his job.

14. Petitioner was scheduled to work the following day,

Friday, March 21, 2003, as well as Saturday, Mar ch 22, 2003, and

Sunday, March 23, 2003. He then had Monday, March 24, 2003, and

Tuesday, March 25, 2003, off.

15. Petitioner failed to report to work on Friday,

Saturday, or Sunday, as scheduled, and failed to call John G's

to advise he would not be re porting to work. Accordingly, he

was a "no - show, no - call" for three consecutive days following

the March 20, 2003, incident.

16. In the past, when he was ill, Petitioner either told

his employer he would not be coming in the next day or he called

from h ome to say he was ill. Jay Giragos knew that Petitioner

usually suffered from one cold every year since he had been

working at the restaurant.

17. On March 25, 2003, Petitioner visited his physician,

Susan Barish, M.D. At that visit, Petitioner was dia gnosed for

the first time as a diabetic.

18. The parties stipulated that prior to March 25, 2003,

neither Petitioner nor anyone at John G's had any knowledge of

Petitioner's diabetes. The owners of John G's first learned of

Petitioner's diabetes when h e arrived at the restaurant on

March 26, 2003.

19. Respondent has a long history of accommodating its

employees who suffer either from a disease or disability, or who

require accommodation due to pregnancy.

20. On March 26, 2003, rather than reporting to work at

6:00 a.m. as scheduled, Petitioner arrived mid - morning with his

bundle of uniforms and asked for his paycheck. At this time,

Petitioner informed everyone that he was suffering from

diabetes.

21. Petitioner claims that he asked for his job ba ck, but

none of Petitioner's owners recall his asking to be re - hired.

22. After his absence on March 21 - 23, 2003, Jay Giragos

was not interested in retaining Petitioner, even though he had

not yet hired a replacement cook.

23. According to Dr. Barish, Petitioner has obtained good

control of his diabetes with oral medication and diet.

Dr. Barish believes that Petitioner is not restricted from

working as a cook or in any other occupation.

24. Petitioner remained unemployed until October 2003, at

whic h time he opened his own restaurant, which remained in

business for eight months.

25. During the time that he was unemployed, Petitioner

lost about $13,000 in pay based upon his salary at John G's.

26. Petitioner is currently employed as a cook at Fli x

Restaurant working 39.5 hours per week cooking breakfast and

lunch, and performing essentially the same duties as he had

performed at John G's.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of an d the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.01 et seq. , Fla.

Stat.

28. Petitioner is an “aggrieved person” and Respondent an

"employer" within the meaning of Subsections 760.02(10) and (7),

Florida Statutes, respectively. Section 76 0.10, Florida

Statutes, makes it unlawful for Respondent to discharge or

otherwise discriminate against Petitioner based on an employee’s

disability.

29. In a disability discrimination case alleging

discriminatory discharge, in order to establish a prima facie

case of discrimination, a petitioner must demonstrate that

(1) he is physically disabled; (2) he is a “qualified

individual,” meaning he can perform the essential functions of

the job in question with or without reasonable accommodation;

and (3) he was discriminated against because of his disability.

Lucas v. W.W. Granger, Inc. , 257 F.3d 1249, 1255 (11th Cir.

2001); Reed v. Heil Co. , 206 F.3d 1055, 1061 (11th Cir. 2000).

30. No direct evidence of discrimination exists in this

case. A finding, if an y, must be based on circumstantial

evidence.

31. The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 03 (1973). Federal discrimination

law may be used for guida nce in evaluating the merits of claims

arising under Chapter 760. Tourville v. Securex, Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co - op.,

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Florida Power

Corp. , 633 So. 2d 504 (F la. 1st DCA 1994).

32. Florida courts have recognized that actions for

discrimination on the basis of disability are analyzed under the

same framework as Americans with Disabilities Act (ADA) claims.

Chanda v. Englehard/ICC , 234 F.3d 1219 (11th Cir. 2000 ). The

ADA defines a disability as a physical or mental impairment that

substantially limits one or more of the major life activities of

an individual. Chanda , Id. at 1221. In this matter, at no time

has Petitioner alleged that he is restricted in the m anner in

which he can perform any major life activity.

33. If Petitioner succeeds in making a prima facie case,

the burden shifts to Respondent to articulate some legitimate,

nondiscriminatory reason for its conduct. If Respondent carries

this burden o f rebutting Petitioner’s prima facie case,

Petitioner must demonstrate that the proffered reason was not

the true reason, but merely a pretext for discrimination.

McDonnell Douglas , supra at 802 - 03.

34. Mere proof of a physical impairment is not proof of a

disability under the ADA. 29 C.F.R. Part 1630, App. §

1630.2(j); Gordon v. E.L. Hamm & Assoc., Inc. , 100 F.3d 907, 911

(11th Cir. 1996); Hamm v. Runyon , 51 F.3d 721, 726 (7th Cir.

1995). Furthermore, when assessing whether a physical

impairment consti tutes a disability under the ADA, the

mitigating effects of the body’s own accommodating measures must

be considered. Albertson’s, Inc. v. Kirkingburg , 527 U.S. 555,

566 (1999); Sutton v. United Airlines, Inc. , 527 U.S. 471, 482

(1999) (“[w]e see no princ ipled basis for distinguishing between

measures taken with artificial aids, like medications and

devices, and measures undertaken, whether consciously or not,

with the body’s own systems.”)

35. Applying the Supreme Court’s analysis in Sutton ,

controlled diabetes has been found not to constitute a

disability under the ADA. See , e.g., Orr v. Wal - Mart Stores,

Inc. , 297 F.3d 720, 724 (8th Cir. 2002). Additionally, under

the model of proof set forth above, Petitioner must demonstrate

by competent substantial evidence that the employer in question

actually knew of Petitioner’s claimed disability. See , e.g.,

Jovanovic v. In - Sink - erator Division of Emerson Electric Co. ,

201 F.3d 894, 898 - 899 (7th Cir. 2000); Jones v. United Parcel

Service , 214 F.3d 402, 408 (3d Cir. 2000).

36. Applying the required standard of proof, Petitioner

has failed to establish any claim of unlawful discrimination.

First, the Petitioner has failed to establish that he is a

qualified individual with a disability recognized by the ADA.

P etitioner’s and his physician's testimony at hearing clearly

establishes that, despite his diabetes, he is able to control

his medical condition through medication and diet. Further,

Petitioner has been able to work full - time as soon as he was

able to sec ure employment after his termination from Respondent.

Petitioner wholly failed to present any evidence of any

substantial limitations on any major life activity. Under the

rationale of Sutton and Orr cited above, Petitioner’s claim must

fail since he did not have a disability recognized under the ADA

at the time of his employment with John G's.

37. Additionally, Petitioner failed to present any

competent substantial evidence that any of his supervisors or

the owners of John G's were aware of Petitioner’s alleged

disability, his diabetes. Although Petitioner testified that he

asked for his job back on March 26, 2003, after he told his

employers that he suffers from diabetes, no evidence was

presented that Petitioner’s co - workers or supervisors had any

kno wledge of his illness prior to his termination whether, as he

claims, that was on March 20, 2003, the date of the french fry

incident, or after he was a no - show, no - call for three days,

March 21 - 23, 2003.

38. Finally, Petitioner failed to produce any com petent

substantial evidence to support his contention that his

employment was terminated by his claimed disability. Petitioner

had a history of emotional outbursts directed toward his fellow

employees and employers. Respondent terminated his employment

a fter another of his outbursts followed by three days of not

appearing for work and not calling to say he was ill.

Respondent's termination of Petitioner was wholly unrelated to

his diabetes.

39. In conclusion, Petitioner presented no credible and

persuas ive evidence that Respondent’s articulated reasons for

its actions were a pretext for discrimination. There is no

evidence to support a finding that Respondent violated Chapter

760, Florida Statutes, or the ADA.

RECOMMENDATION

Based upon the foregoing Fi ndings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission enter a Final Order finding

that the Respondent did not discriminate against Petitioner and

dismissing the Petition for Relief.

DONE AND ENTERED this 26th day of January, 2005 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 (850) 921 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2005.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

F. Dean Hewitt, Esquire

Rissman, Weisberg, Barrett,

Hurt, Donahue & McLain, P.A.

Post Office Box 4940

Orlando, Florida 32802 - 4940

Stewart Lee Karlin, Esquire

Law Offices of Stewart Lee Karlin, P.A.

500 West Cypress Creek Road, Suite 23 0

Fort Lauderdale, Florida 33309

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excep tions 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.