05-001905 Kim Anne Brown vs. Western Steer/Starke Foods, Inc. Status: Closed Recommended Order on Monday, July 10, 2006.

Summary: Petitioner failed to prove prima facie claim that she had a disability or had been discriminated against because of her age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM ANNE BROWN , )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 1905

)

WESTERN STEER/STARKE FOODS, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause c ame on for final hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Starke , Florida , on February 27, 2006 . The appearances were

as follows:

APPEAR ANCES

For Petitioner: Kim Anne Brown , pro se

15113 Southeast 25th Avenue

Starke , Florida 32055

For Respondent: Melissa A. Dearing , Esquire

Coffman, Coleman, Andrews

& Grogan, P.A.

Post Office Box 40089

Jacksonville , Flori da 32203

STATEMENT OF THE ISSUE

Whether the Respondent Employer has committed an unlawful

employment practice, as defined by the Florida Civil Rights Act,

Chapter 760, Part I, against Petitioner, on the basis of her age

and/or handicap.

PRELIMINARY STATEMENT

On January 12, 2005, the Petitioner Kim Anne Brown

("Ms. Brown") filed a complaint of discrimination against the

Respondent , Western Steer/Starke Foods, Inc. ("Western Steer")

alleging that she was suspended from her position as a server

becau se of her age and handicap (alcoholism), in violation of

the Florida Civil Rights Act of 1992 ("FCRA"). A Determination

of No Cause was entered by the Florida Commission on Human

Relations (Commission) on April 18, 2005.

The Petitioner timely filed a Pet ition for Relief on

May 18, 2005, which was referred to the Division of

Administrative Hearings. The matter was transmitted to the

undersigned and was noticed for a hearing to be conducted on the

above date.

The hearing was conducted as notice d . During t he hearing,

the Petitioner testified on her own behalf and presented the

testimony of Ken Weaver and Sheila Lee. The Petitioner also

admitted into evidence Exhibit P - 1 and Composite Exhibit P - 2.

The Respondent elicited testimony from the foregoing witnes ses

through cross - examination, and also conducted the direct

examinations of Donald Robert Thomas, Jr., and Harry M.

Hatcher III. In addition, Western Steer admitted into evidence,

without objection, Exhibits R - 1 through R - 10.

A transcript was filed on May 8, 2006, and the parties

timely submitted Proposed Recommended Orders.

FINDINGS OF FACT

1. The Respondent Western Steer hired the Petitioner as a

server for its Starke, Florida restaurant approximately ten

years ago.

2. As a result of an alcohol a buse problem, in February

2002, the Petitioner joined the local Alcoholics Anonymous. The

Petitioner contends that she has not imbibed in alcoholic

beverages in over three years.

3. The Petitioner believes that she may have disclosed her

sobriety to Ken Weaver in September 2002 after receiving a

negative performance evaluation, although she is certain that

she would have disclosed it to him in February 2003. In that

regard, the Petitioner displayed a medallion signifying sobriety

to Western Steer's owne r, Harry Hatcher, and the General

Manager, Ken Weaver. B oth Mr. Hatcher and Mr. Weaver expressed

that they were proud of her accomplishment. Furthermore, the

Petitioner acknowledged that she considered Mr. Hatcher to be "a

wonderful man" and a friend, an d acknowledged that he had helped

her financially throughout her employment for Western Steer.

The Petitioner also recalls that, in approximately 2004, she

advised floor manager Don Thompson that she was a recovering

alcoholic, and that he likewise encour aged her to maintain her

sobriety.

4. The Petitioner complained that, thereafter, in

September 2002, she and three other Western Steer employees

received performance evaluations. The Petitioner contends that,

with the exception of one of the employees, all employees who

were evaluated in 2002, including her, received negative

evaluations . The Petitioner acknowledged, however, that the two

other individuals receiving negative evaluations were younger

than her, and that she did not have any information to suggest

that these individuals were alcoholics or had some other

disability. Furthe r , the Petitioner admits that she disclosed

alcoholism only in reaction to having received the negative

evaluation.

5. The Petitioner contends that, in April 2003, two c o -

workers informed her of a comment made by Assistant Manager

Sheila Lee that Petitioner should be in a rehabilitation

facility. The Petitioner did not believe that, in making this

statement, Ms. Lee was discriminating against her because of her

status as a recovering alcoholic; rather, she believed that

Ms. Lee made this statement because ". . . she was angry with

[Petitioner] because [Petitioner] can get sober and she can't."

In any event, the Petitioner claims to have reported Ms. Lee's

comment to Mr. Hatcher and Mr. Weaver, and the Petitioner

recalls that both men were very supportive of her, and did not

condone Ms. Lee's alleged comment. Indeed, after the Petitioner

reported Ms. Lee's alleged comment to Mr. Hatcher and Mr. Weaver

in April 2003, the P etitioner acknowledged that she did not hear

any other comments after that. Notably, when asked if any one

ever made any comments about her alcoholism, the Petitioner

recalled Western Steer employees and managers telling her that

"they're proud" of her con tinuing to abstain from alcohol use.

Petitioner also recalled that during her April 2003 conversation

with Mr. Weaver and Mr. Hatcher, she volunteered to take a drug

test, but that both men told her that was unnecessary.

6. On February 9, 2004, the Peti tioner met with then floor

manager Don Thompson to discuss the Petitioner's developing

pattern of tardiness and customer complaints. Specifically,

Mr. Thompson discussed with Petitioner the pattern of tardiness

that was developing as reflected in her time cards for January

and February 2004, and also addressed complaints he had received

from other servers regarding the Petitioner's strange behavior

and her inability to keep - up with her station. The Petitioner

admits that she was advised at that time that any future

violations would result in termination.

7. Notwithstanding Mr. Thompson's warning that future

violations would result in termination, Mr. Thompson had to

counsel the Petitioner on April 8, 2004. During that counseling

session Mr. Thompson aga in discussed with the Petitioner his

concern over her continued pattern of tardiness and her strange

behavior.

8. Finally, on July 8, 2004, the Petitioner was suspended

indefinitely, and subsequently was asked to undergo a medical,

drug , and alcohol exam , which she agreed to do.

9. The Petitioner's suspension, however, was motivated by

the Petitioner's pattern of tardiness, as well as the behaviors

that had surfaced in the months leading up to her suspension.

In that regard, while the reporting time fo r servers had always

been either 10:00 a.m. or 10:45 a.m., the Petitioner had

developed a pattern of reporting to work well after the

designated start time. Specifically, on July 25, 2004,

Petitioner was scheduled to begin work at 10:45 a.m. When the

Pet itioner still had not arrived by 11:45 a.m. - one hour into

her shift - Ms. Lee contacted the Petitioner at home, apparently

waking her. The Petitioner acknowledged that she had overslept

and asked Ms. Lee if she should still report to work. Because

it w as so far into her shift, however, Ms. Lee advised the

Petitioner that it was not necessary for her to report to work.

10. In addition to the Petitioner's pattern of tardiness,

the Petitioner engaged in very bizarre behavior, including:

talking very lou d, talking to herself, appearing to be unaware

of her surroundings , and incoherent . She exhibit ed great

difficulty in keeping up with her section. In fact, while the

servers are expected to assist one another in keeping up with

their sections, the Petiti oner's fellow servers repeatedly

complained about having to render excessive assistance to the

Petitioner. Moreover, there was a report regarding the

Petitioner sticking her finger in food at the buffet, and taking

food out while licking her fingers. T he Petitioner acted in a

very theatrical manner in the presence of customer s , including

howling, singing loudly, skipping , and "sashaying" through the

restaurant.

11. Western Steer was receiving an increasing number of

customer complaints regarding the Pet itioner, including request s

by customers to be seated in a station other than the

Petitioner's station, or to be moved from the Petitioner's

station after initially being seated there.

12. In light of all of these attendance and behavioral

issues, Mr. Ha tcher and Mr. Weaver determined that a suspension

was appropriate . M r. Weaver met with the Petitioner to advise

her of the suspension on July 28, 2004.

13. In the interim, Mr. Weaver and Mr. Hatcher also

discussed their concern that there may be somethi ng motivating

the Petitioner's behavior. Notwithstanding that Mr. Hatcher's

initial inclination was to terminate the Petitioner for failure

to improve her attendance and performance , despite numerous

counseling sessions, since the Petitioner had previousl y

volunteered to take a drug and/or alcohol test, Mr. Hatcher and

Mr. Weaver decided such a test w as a reasonable method of

determining if the Petitioner was fit for duty. S ince the

Petitioner complained about not feeling well, and Mr. Weaver had

personal ly observed her difficulties in getting around the

restaurant, they also agreed that a medical examination may be

useful in determining whether such issues m ight be affecting her

performance. Mr. Weaver therefore requested that the Petitioner

submit to a medical, drug , and alcohol exam, which she agreed to

do.

14. While the Petitioner asserts that various managers

criticized her performance, the Petitioner acknowledged that no

one at Western Steer ever linked her performance deficiencies or

her status as an alcoholic or recovering alcoholic.

15. The Petitioner also acknowledged that alcoholism did

not impact her ability to breathe, walk, sleep, engage in sexual

relations or reproductive activity, work, care for herself,

perform manual tasks, hear, speak , learn, or perform any other

major life activity. Indeed, the Petitioner admitted that she

could pretty much do anything that she did before she ever

started consuming alcohol.

16. Additionally, aside from displaying her medallion to

Mr. Hatcher and Mr . Weaver in February 2003, the Petitioner has

provided no other documentation to Western Steer regarding her

status as a recovering alcoholic.

17. Other than her speculation that she was discriminated

against because of her alcoholism, the Petitioner adm its that

nobody at Western Steer ever made any comments or engaged in any

conduct which would suggest that they were discriminating

against her on the basis of her alcoholism or status as a

recovering alcoholic.

18. Finally, the Petitioner presented no e vidence

indicating that Mr. Hatcher, Mr. Weaver, or anyone else

discriminated against her on the basis of age. Notably, the

Petitioner acknowledged that Mr. Hatcher was older than her, and

Mr. Weaver and Ms. Lee were approximately the same age.

CONCLUSION S OF LAW

19. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (200 5 ).

20. The Florida Civil Rights Act of 1992, as amended,

Chapter 760, Florida Statutes , proscribes discrimination against

any individual with respect to terms, conditions, or privileges

of employment on the basis of, among other attributes, age or

handicap. § 760.10(1)(a) , Fla. Stat. (2005) .

20. Since the FCRA was pattern ed after Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e17

("Title VII"), the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. Sections 621 - 623 ("ADEA"), and the

Americans With Disabilities Act of 1990, as amended, 42 U.S.C.

Section 12101 - 12213 ; case law interpreting Title VII, the ADEA

and the ADA is applicable to cases arising under the FCRA.

Florida State Univ. v. Sondel , 685 So. 2d 923, 925 n. 1 (Fla.

1st DCA 1996).

21. The Petitioner has the burden of establishing a prima

facie case of discrimination. Combs v. Meadowcraft, Inc. , 106

F.3d 1519, 1527 - 1528 (11th Cir. 1997), cert. denied , 522 U.S.

1045 (1998). Disparate treatment claims require proof of

discriminatory intent either through direct, stat istical or

circumstantial evidence. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001). Since the Petitioner has failed to

set forth any direct evidence, she must rely on circumstantial

evidence to prove discriminatory intent, using the frame work

established in McDonnell - Douglas Corporation v. Green , 411 U.S.

792 (1973 ).

22. If the Petitioner carries her burden, the burden then

shifts to the employer to rebut the inference of discrimination

by articulating a non - discriminatory reason for its employment

action. Reeves v. Sanderson Plumbing Prod. Inc. , 530 U.S. 133,

142 (2000); Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir.

1997). This burden, however, is "exceedingly light." 115 F.3d

at 1564. The employer need only offer admissible evid ence

sufficient to raise a genuine issue of fact as to whether it had

a legitimate reason for taking the contested employment action.

Chapman v. A.Iansport , 229 F.3d 1012, 1024 (11th Cir. 2000)

(en banc).

23. Once the employer articulates a legitima te, non -

discriminatory reason for its actions, the inference of

discrimination disappears, and the burden shifts back to the

Petitioner to prove that the proffered reason was merely a

pretext for intentional discrimination. Reeves , 530 U.S. at

142; Schoen field v. Babbitt , 1257 at 1269 168 F.3d (11th Cir.

1999).

24. The Supreme Court of the United States, in Reeves ,

supra . clarified the circumstances in which an employer is

entitled to judgment as a matter of law under the burden

shifting mechanism, stati ng:

There will be instances where, although the

Petitioner has established a prima facie

case and set forth sufficient evidence to

reject the defendant's explanation, no

rational factfinder could conclude that the

action was discriminatory. For instance, an

employer would be entitled to judgment as a

matter of law if the record conclusively

revealed some other, nondiscriminatory

reason for the employer's decision, or if

the Petitioner created only a weak issue of

fact as to whether the employer's reason wa s

untrue and there was abundant and

uncontroverted independent evidence that no

discrimination had occurred.

Id. at 148.

25 . The Reeves Court further explained that the

determination of whether judgment as a matter of law is

appropriate in a given ca se will turn on "the strength of the

Petitioner's prima facie case, the probative value of the proof

that the employer's explanation is false, and any other evidence

that supports the employer's case that may properly be

considered on a motion for judgment as a matter of law.” Id. at

148 - 149.

26 . "Direct evidence of discrimination is evidence which,

if believed, would prove the existence of a fact [in issue]

without inference or presumption." Earley v. Chamption

International, Corp. , 907 F.2d 1077, 1081 (citing Carter v. City

of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989) (emphasis in

original); see Holifield , 115 F.3d at 1561 .

27 . Here, the Petitioner has not produced any admissible

evidence of discriminatory statements by a decisionmaker that

could be considered direct evidence of age or disability

discrimination.

28 . Because the Petitioner has no direct evidence of

discrimination, the Petitioner must produce circumstantial

evidence of handicap discrimination. Specifically, the

Petitioner must pr ove by a preponderance of the evidence that

she" (1) is handicapped; (2) is a qualified individual; and (3)

was subjected to unlawful discrimination because of her

handicap. Hilburn v. Murata Elec. North America, Inc. , 181 F.3d

1220, 1226 (11th Cir. 1999) ; Brand v. Florida Power Corp. , 633

So. 2d 504, 510, n. 10 (Fla. 1st DCA 1994).

29 . Even if the Petitioner w ere considered a qualified

individual, the Petitioner has not submitted competent evidence

to establish that she was handicapped, or that she was subjected

to unlawful handicap discrimination.

30 . The Petitioner cannot establish that she is

handicapped or disabled under any of the definitions contained

in 42 U.S.C. § 12102(2), which is part of the Americans With

Disabilities Act. That section def ines "disability" as:

(a) A physical or mental impairment that

substantially limits one or more of the

major life activities of an individual;

(b) a record of such impairment; or,

(c) being regarded as having such

impairment.

42 U.S.C. § 12102(2).

31 . Under the first definition, the Petitioner must

establish that her alleged impairment substantially limits one

or more major life activities. The U.S. Equal Employment

Opportunity Commission defines "major life activities" to

include caring for onese lf, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning , and working. 29

CFR § 1630.2(i).

32 . The regulations further specify that, in order to

establish a substantial limitation in any one of these major

life activities, th e Petitioner must show that she is:

(a) unable to perform a major life activity

that the average person and the general

population can perform; or

(b) significantly restricted as to the

condition, manner or duration under which an

individual can perform a particular major

life activity as compared to the condition,

manner, or duration under which the average

person in the general population can perform

the same major live activity.

33 . During the hearing on this matter, the Petitioner

admitted that sh e was not substantially limited in any of the

foregoing major life activities as a result of her alcoholism or

status as a recovering alcoholic. The Petitioner acknowledged

that alcoholism did not impact her ability to breathe, walk,

sleep, engage in sexu al r elations or reproductive activity,

work, care for herself, perform manual tasks, speak, learn , or

perform any other life activity. Indeed, the Petitioner

admitted that she could pretty much do anything that she did

before she ever started consuming al cohol. Therefore, the

Petitioner did not show she is disabled by being substantially

limited in a major life activity and Western Steer is entitled

to dismissal of the Petitioner's handicap claim premised on this

portion of the definition.

34 . To the ex tent that the Petitioner maintains that she

is disabled by virtue of a record of an impairment, the record

of impairment definition includes a person that "has a history

of, or has been misclassified as having, a mental or physical

impairment that substant ially limits one or more major life

activities." 29 C.F.R. § 1630.2(k). This definition is

satisfied "if a record relied on by an employer indicates that

the individual has or has had a substantially limiting

impairment . . ." There are many types of re cords that could

potentially contain this information, including but not limited

to, education, medical, or employment records. Hilburn v.

Murata Elec. North America, Inc. , 181 F.3d 1220, 1229 (11th Cir.

1999) (citing 29 C.F.R. pt. 1630, App. § 1630.2(k) (1997) ) .

Regardless of whether the Petitioner proceeds under the

classification o r misclassification theory, the Petitioner must

show that the impairment indicated in the record substantially

limited one or more of her major life activities.

35 . The Pet itioner did not identify any records , of the

Respondent or otherwise, indicating either that she was an

alcoholic or that the condition substantially limited any of her

major life activities. The record evidence establishes that the

Petitioner was not sub stantially limited in any major life

activity as a result of her alcoholism or status as a recovering

alcoholic. Accordingly, Western Steer is entitled to dismissal

of the Petitioner's FCRA disability or handicap claims to the

extent that those claims are premised on the theory that she had

a record of an impairment.

36 . The Petitioner also cannot establish that she was

regarded as having an impairment under 42 U.S.C. § 12102(2)(C).

A person is regarded as having an impairment where he or she:

(a) Has a physical or mental impairment

that does not substantially limit major life

activities but is treated by a covered

entity as constituting such limitation;

(b) Has a physical or mental impairment

that substantially limits major life

activities only as a result of the attitudes

of others toward such impairment; or

(c) Has none of the impairments defined in

. . . this section but is treated by a

covered entity as having a substantially

limiting impairment.

37 . To satisfy her burden of establishing a pe rceived

impairment under the FCRA it is not enough for Petitioner to

show that Western Steer regarded her as an alcoholic; she must

also show that Western Steer regarded her alcoholism as

substantially limiting one of her major life activities. See

Zenor v. El Paso Healthcare System, Ltd. , 176 F.3d 847, 859 (5th

Cir. 1999).

38 . Moreover, to constitute a perceived impairment under

this regulation, the United States Court of Appeal for the

Eleventh Circuit has explained that the impairment must be

substant ially limiting and significant. Gordon v. E.L. Hamm &

Assoc., Inc. , 100 F.3d 907, 913 (11th Cir. 1996), cert. denied ,

522 U.S. 1030 (1997). A "significant" impairment is "one that

is viewed by the employer as generally foreclosing the type of

employment involved, not just a narrow range of job tasks." Id.

(citing 29 C.F.R. § 1630.2(j)(e) and Ellison v. Software

Spectrum, Inc. , 85 F.3d 187, 192 (5th Cir. 1996)). The Eleventh

Circuit has focused on the alleged impairment's effect upon the

attitude of othe rs. 100 F.3d at 913.

39 . The Petitioner does not contend that her alcoholism

affected her ability to work or perform any of her job duties.

Further, other than the Petitioner's contention that she was

criticized for her job performance, the Petitioner has no

evidence that anyone at Western Steer believed she was unable to

work or perform her job duties as a result of her alcoholism.

Moreover, the Petitioner acknowledged that she had no evidence

to suggest that anyone at Western Steer thought she was

fo reclosed from performing a broad range of jobs. Absent such

evidence, the Petitioner cannot establish that she was regarded

as having an impairment, thus precluding a finding in her favor

as to this element of proof of disability . See Sullivan v.

Neiman Marcus Group, Inc. , 358 F.3d 110, 118 (1st Cir. 2004).

40 . Additionally, Mr. Weaver ' s request that the Petitioner

submit to a medical, drug , and alcohol test was entirely

reasonabl e in light of the behaviors that surfaced in the months

leading up to the Petitioner's suspension. Consequently, the

Petitioner cannot establish that Western Steer perceived her as

substantially limited in any major life activity .

41 . To establish a prima facie case of age discrimination,

the Petitioner must adduce evidence: ( 1) that she was in a

protected age group and was adversely affected by an employment

decision; (2) that she was qualified for her current position or

to assume another position at the time of the adverse employment

action; and (3) by which a fact finder might reasonably conclude

that the employer intended to discriminate on the basis of age

in reaching the decision at issue. Earley v. Champion Intern.

Corp. , supra at 1082 (11th Cir. 1990).

42 . Other than her contention that Mr. Thompson allegedly

asked the Petitioner if she was okay or why she was limping, the

Petitioner acknowledged that she has no other evidence to

suggest that she was discriminated against on the basis of her

age. Indeed, according to the Petitioner, it was the Florida

Commission on Human Relations that included the reference to age

discrimination in her charge, and no one at Western Steer made

any comments or engaged in any conduct that she construed as

discriminatory on the basis of her age. Notably, it is

undisputed that Mr. Weav er and Ms. Lee are the same age as the

Petitioner, and that Mr. Hatcher is older than the Petitioner.

Accordingly, because the Petitioner has not produced evidence

demonstrating that she was discriminated against on the basis of

her age, Western Steer is entitled to an order dismissing the

Petitioner's age discrimination claim.

RECOMMENDATION

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 ar guments of

the parties, it is, therefore,

RECOMMENDED t hat the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 10th day of Ju ly , 200 6 , in

Tallahassee, Leon County , Florida.

S

P. MICHAEL RUFF

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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of Ju ly , 200 6 .

COPIES FURNISHED :

Kim Anne Brown

15113 Southeast 25th Avenue

Starke , Florida 32055

Melissa A. Dearing , Esquire

Coffman, Coleman, And rews

& Grogan, P.A.

Post Office Box 40089

Jacksonville , Florida 32203

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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 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.