05-004056 Danette Marshall vs. Sam`s Club Status: Closed Recommended Order on Monday, April 3, 2006.

Summary: Respondent terminated Petitioner`s employment, not because of her alleged disability, but due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit periodically and rest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANETTE MARSHALL , )

)

Petitioner, )

)

vs. ) Case No. 05 - 4056

)

SAM'S EAST, INC., )

)

Respondent. 1 )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing in Tallahassee, Florida, on

January 17, 2006.

APPEARANCES

For Petitioner: Danette T. Marshall, pro se

4200 Inverray Boulevard, Suite 3702

Lauderhill, Florida 33319

For Respondent: Li ndsay A. Connor, Esquire

Amy R. Harrison, Esquire

Ford & Harrison LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent unlawfully discriminated against

Petitioner on the basis of her alleged disa bility in violation

of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On or about March 30, 2005, Petitioner Danette Marshall

filed an Amended Charge with the Florida Commission on Human

Relations ("FCHR") in which she claimed that Respondent Sam 's

East, Inc., rather than making a reasonable accommodation for

her alleged disability, had terminated her employment as

customer "greeter." On September 26, 2005, the FCHR gave notice

of its determination that no reasonable cause had been found to

belie ve that Respondent had committed an unlawful employment

practice.

Ms. Marshall elected to pursue administrative remedies.

She timely filed a Petition for Relief with the FCHR on

October 28, 2005. The FCHR transmitted the Petition for Relief

to the Div ision of Administrative Hearings on October 31, 2005,

and an administrative law judge ("ALJ") was assigned to the

case. The ALJ scheduled the final hearing for January 17, 2006.

At the hearing, Ms. Marshall testified on her own behalf

and offered four exh ibits, numbered 1 through 4, which were

received into evidence. During its case, Respondent presented

the testimony of Terri Lynn Gavins and Mildred Ballen.

Additionally, Respondent's Exhibits 1 through 6 were admitted.

The final hearing transcript was f iled on February 15,

2006. Thereafter, the parties timely filed proposed recommended

orders, which have been considered.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Danette Marshall ("Marshall") was employed

by Respondent Sam's East, Inc. ("Sam's Club") from October 1,

2004 to March 31, 2005. She worked at a store in Tallahassee

and, at all relevant times, held the position of "greeter."

2. The essential functions of a greeter were, then as now,

constantly to (a) greet members (shoppers) and check membership

cards, (b) keep the entrance area clean and organized by picking

up after members and providing them with carts, and (c) resolve

member concerns. It was (and i s) important to Sam's Club that

greeters be mobile at all times.

3. While working on February 9, 2005, Marshall experienced

such pain and swelling in her feet that she asked to leave work

early to seek medical treatment. With her supervisor's

permissi on, Marshall went to the emergency room, where she was

diagnosed with bilateral plantar fasciitis and referred to a

podiatrist.

4. Marshall saw a podiatrist later that month. The

evidence adduced at hearing is insufficient to make findings

concerning th e prescribed treatment and Marshall's prognosis. 2

It is undisputed, however, that her doctor suggested Marshall

should stand only for brief periods while working.

5. Following the doctor's advice, Marshall asked her

employer to either provide her w ith a stool on which to sit or,

alternatively, transfer her to another position that would not

require constant standing. Sam's Club refused to let Marshall

sit on a stool while on the job because, in its view, greeters

are supposed to be constantly movin g about their work stations,

keeping busy attending to shoppers and performing other duties.

Sam's Club could not give Marshall a sedentary job because it

did not have such a position available for her.

6. Marshall's supervisor did, however, informally

accommodate Marshall by letting her take an extra five - minute

break most every hour, conditions permitting. Despite that,

after February 21, 2005, Marshall effectively stopped coming to

work, claiming inability to perform. 3

7. In consequence of Marshall 's repeated failures to

report for work, Sam's Club informed her that she needed either

to resume working immediately or take a medical leave of

absence —— and failing that, her employment would be terminated.

Marshall was given a Leave of Absence form to c omplete and

submit for approval if she were to opt for taking time off.

8. To be eligible for a medical leave, a Sam's Club

employee must obtain a certification from his or her doctor (or

other health care provider) specifying, among other things, the

da tes during which the employee needs to be away from work.

Marshall brought the Leave of Absence form to her podiatrist,

who signed the document but failed fully to complete the

certification, putting "X"s on the lines where the "begin leave"

and "return d ate" information should have been inscribed.

9. In early March 2005, Marshall submitted her Leave of

Absence form. Sam's Club subsequently notified Marshall that

the form was not in order because the doctor's certification was

incomplete; it reminded her that leave could not be authorized

unless she submitted a properly completed request. Thereafter,

Marshall returned to her podiatrist and asked him to complete

the required certification, but he refused to do so. 4

10. Effective March 31, 2005, Sam's Club terminated

Marshall's employment due to her chronic absenteeism and

professed inability to perform the job of greeter without a

stool on which to sit and rest from time to time.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has pers onal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

12. Under the Florida Civil Rights Act of 1992 ("FCRA"),

Sections 760.01 - 11, Florida Statutes, an employer commits an

unlawful employmen t practice if it takes adverse action against

an employee based on a handicap, unless not having the handicap

in question constitutes a bona fide occupational qualification

reasonably necessary for the performance of the particular

employment to which such adverse action is related. See

§ 760.10(1)(a), (8)(a), Fla. Stat. In this regard, the FCRA

parallels the federal Americans with Disabilities Act ("ADA"),

42 U.S.C. §§ 12101 - 12213.

13. Because the FCRA's provisions outlawing handicap

discrimination c orrespond with similar provisions in the ADA,

Florida courts consistently have construed the FCRA into

conformity with the ADA —— to the point that "a disability

discrimination cause of action [brought under Florida law] is

analyzed under the ADA." See Wimb erly v. Securities Technology

Group, Inc. , 866 So. 2d 146, 147 (Fla. 4th DCA 2004); Razner v.

Wellington Reg'l Med. Ctr., Inc. , 837 So. 2d 437, 440 (Fla. 4th

DCA 2002); Smith v. Avatar Properties, Inc. , 714 So. 2d 1103,

1106 (Fla. 5th DCA 1998).

14. "To p resent a prima facie case of employment

discrimination based on disability under FCRA, [as under the

ADA,] a plaintiff must show 1) that he or she is a person with a

disability; 2) that he or she is 'qualified' for the position

apart from his or her disabi lity; and 3) that he or she was

denied the position [or otherwise discriminated against] . . .

because of his or her disability." Avatar Properties , 714 So.

2d at 1106; see also , e.g. , Gordon v. E.L. Hamm & Assocs., Inc. ,

100 F.3d 907, 910 (11th Cir. 1996 ).

15. Disability.

The ADA defines the term "disability" to mean "(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 havin g

such an impairment." 42 U.S.C. § 12102(2). Here, the evidence

being insufficient to support a finding of disability under

either subsection (B) or (C), Marshall's claim will be evaluated

under the rubric of subsection (A).

16. As t he Fourth District Court of Appeal has explained,

[f]or there to be a disability within the

meaning of the ADA, there must be a

substantial limitation on a major life

activity; a "disabled" person must be

completely unable to perform the activity,

or sign ificantly restricted in performing

the activity as compared to an average

person. See [ Toyota Motor Mfg., Ky., Inc.

v. Williams , 534 U.S. 184, 195 - 96, 151 L.

Ed. 2d 615, 122 S. Ct. 681 (2002)]; 29

C.F.R. § 1630.2(j)(1) (2000). Factors to

consider when de termining whether an

individual is "substantially limited"

include: 1) "the nature and severity of the

impairment;" 2) "the duration or expected

duration of the impairment;" and 3) "the

permanent or long term impact, or the

expected permanent or long term impact of or

resulting from the impairment." [29 C.F.R.]

§ 1630.2(j)(2).

Wimberly , 866 So. 2d at 147.

17. The pertinent federal regulation defines "major life

activities" to include "functions such as caring for oneself,

performing manual tasks, walking , seeing, hearing, speaking,

breathing, learning, and working." 29 C.F.R. § 1630.2(i).

18. Marshall contends that she is disabled because she

cannot stand for prolonged periods of time. Although standing

constitutes a "major life activity," a person w ho can stand

functionally for a reasonable period of time is not considered

substantially limited in the performance of standing as a major

life activity. It has been held, for example, that the

inability to stand for more than one hour at a time is not a

"substantial limitation" under the ADA. See Dupre v. Charter

Behavioral Health Systems of Lafayette, Inc. , 242 F.3d 610, 614

(5th Cir. 2001)(Plaintiff's ability to stand in one place for up

to one hour at a time showed that the "condition, manner, or

dur ation" under which plaintiff could stand was not

significantly restricted as compared with the average person.);

see also Taylor v. Pathmark Stores, Inc. 177 F.3d 180, 186 (3d

Cir. 1999)(cashier who could stand for 50 minutes before needing

10 - minute break was not disabled for purposes of ADA); Buskirk

v. Apollo Metals , 116 F. Supp. 2d 591, 598 (E.D. Pa. 2000)(being

restricted by doctor to no more than three hours of continuous

standing insufficient to show substantial limitation on standing

ability.)

19. Marshall proved that, at the time she was discharged,

her ability to stand continuously was limited to some degree by

a painful condition affecting both of her feet. But the

evidence shows also that Marshall was able to stand and function

on her feet for periods sufficient to accomplish reasonable

daily activities. Marshall failed, therefore, to demonstrate a

substantial limitation in her ability to stand.

20. Accordingly, it is found and concluded that Marshall

is not a person with a "disability" (or " handicap," to use the

FCRA's terminology) as that term is understood in the context of

disability discrimination law.

21. Qualification.

Even if it were assumed, for argument's sake, that Marshall

is a person with a disability under the ADA/FCRA, to ma ke her

case she would need to show that she is "qualified" to work as a

greeter for Sam's Club.

22. The ADA prohibits employment discrimination against a

"qualified individual with a disability," meaning an "individual

with a disability who, with or witho ut reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds or desires." 42 U.S.C. § 12111(8).

Thus, to prevail, the plaintiff in a disability discrimination

case "must show either that he can pe rform the essential

functions of his job without accommodation, or, failing that,

show that he can perform the essential functions of his job with

a reasonable accommodation." Davis v. Florida Power & Light

Co. , 205 F.3d 1301, 1305 (11th Cir. 2000). If t he plaintiff "is

unable to perform an essential function of his . . . job, even

with an accommodation, he is, by definition, not a 'qualified

individual' and, therefore, not covered under the ADA. In other

words, the ADA does not require [the employer] to eliminate an

essential function of [the plaintiff's] job." Id. (citation

omitted); see also , e.g. , D'Angelo v. Conagra Foods , 422 F.3d

1220, 1229 (11th Cir. 2005).

23. The "term essential functions means the fundamental

job duties of the employment posi tion the individual with a

disability holds or desires," and "does not include the marginal

functions of the position." 29 C.F.R. § 1630.2(n)(1). "Whether

a function is essential is evaluated on a case - by - case basis by

examining a number of factors." Da vis , 205 F.3d at 1305. The

ADA requires that, in making this determination, "consideration

shall be given to the employer's judgment as to what functions

of a job are essential, and if an employer has prepared a

written description before advertising or i nterviewing

applicants for the job, this description shall be considered

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

12111(8). "The ADA regulations provide that other factors to

consider are: (1) the amount of time spent on the job perfo rming

the function, (2) the consequences of not requiring the

incumbent to perform the function, (3) the terms of the

collective bargaining agreement, (4) the work experience of past

incumbents in the job, and (5) the current work experience of

incumbents in similar jobs." Davis , 205 F.3d at 1305 (citing 29

C.F.R. § 1630.2(n)(3)); see also D'Angelo , 422 F.3d. at 1230.

24. Here, Sam's Club asserts that constant mobility is an

essential function of the greeter position. This in turn

requires the greeter to be on his or her feet for extended

stretches of time. Marshall, for her part, essentially has

conceded that constant mobility is an essential function of the

job, and she admits that, at the time of her discharge, she was

unable to stand for prolonged pe riods. (Marshall's position ——

which will be addressed momentarily —— is that she can perform the

job with a reasonable accommodation, namely, a stool.) Thus,

the undersigned finds and concludes that, because she is unable

to stand and move about for long pe riods of time, which are

essential job functions, Marshall is not qualified, without an

accommodation, to work as a greeter.

25. On the subject of reasonable accommodations, the U.S.

Eleventh Circuit Court of Appeals has written:

[A] qualified individua l with a

disability may be unlawfully discriminated

against because of the individual's

disability when the individual's employer

does not reasonably accommodate the

disability —— unless such an accommodation

would impose an undue hardship on the

employer. 42 U.S.C. § 12112(b)(5)(A).

Under the ADA, the term "reasonable

accommodation" may include, inter alia , "job

restructuring, parttime or modified work

schedules, reassignment to a vacant

position, acquisition or modification of

equipment or devices, approp riate adjustment

or modifications of examinations, training

materials or policies, the provision of

qualified readers or interpreters, and other

similar accommodations for individuals with

disabilities." 42 U.S.C. § 12111(9)(B).

This list notwithstanding , "the use of the

word 'reasonable' as an adjective for the

word 'accommodate' connotes that an employer

is not required to accommodate an employee

in any manner in which that employee

desires." Lewis v. Zilog, Inc. , 908 F.

Supp. 931, 947 (N.D.Ga. 1995). This is so

because the word "reasonable" would be

rendered superfluous in the ADA if employers

were required in every instance to provide

employees "the maximum accommodation or

every conceivable accommodation possible."

Lewis , 908 F. Supp. at 947; see a lso Vande

Zande v. State of Wis. Dept. of Admin. , 851

F. Supp. 353, 360 (W.D.Wis. 1994)("an

employee is entitled only to a reasonable

accommodation and not to [a] preferred

accommodation"), aff'd , 44 F.3d 538 (7th

Cir. 1995). Stated plainly, under the ADA a

qualified individual with a disability is

"not entitled to the accommodation of her

choice, but only to a reasonable

accommodation." Lewis , 908 F. Supp. at 948.

Moreover, the burden of identifying an

accommodation that would allow a qualified

individu al to perform the job rests with

that individual, as does the ultimate burden

of persuasion with respect to demonstrating

that such an accommodation is reasonable.

Willis v. Conopco , 108 F.3d 282, 283 (11th

Cir. 1997).

Stewart v. Happy Herman's Cheshire Bridge , 117 F.3d 1278, 1285 -

86 (11th Cir. 1997).

26. The accommodation that Marshall sought was a stool on

which to sit periodically while working, to rest her feet. The

undersigned agrees with Sam's Club, however, that a greeter

cannot meaningfully enga ge in proactive customer service while

sitting, immobile, on a stool. 5 Accordingly, it is found and

concluded that such an accommodation would not be reasonable.

See generally Kuehl v. Wal - Mart Stores, Inc. , 909 F. Supp. 794,

802 - 04 (D. Colo. 1995)(emplo yee with tendonitis who had rejected

other reasonable accommodations was not entitled to a stool on

which to sit during shift as greeter).

27. Further, Sam's Club did, in fact, offer Marshall an

accommodation: a medical leave of absence. Such leaves are

recognized as potentially reasonable accommodations. See , e.g. ,

Criado v. IBM Corp. , 145 F.3d 437, 443 - 44 (1st Cir. 1998);

Reynolds v. IBM , 320 F. Supp. 2d 1290, 1304 (M.D. Fla. 2004).

Under the present circumstances, a medical leave, which would

have a llowed Marshall to rest, recuperate, and seek treatment,

was reasonable. Indeed, Marshall was willing, at one time, to

accept the invitation to take a leave of absence —— she even took

affirmative steps toward requesting one —— but failed to persevere

to the end of the application process.

28. As an alternative basis for disposition, therefore,

the undersigned finds and concludes that Sam's Club did not

discriminate against Marshall by refusing reasonably to

accommodate her disability (assuming she had one) .

29. Causation.

Under the ADA, a plaintiff must prove by a preponderance of

the evidence that she was discriminated against "because of" her

disability. 42 U.S.C. § 12112(a). The Eleventh Circuit has

interpreted the ADA's "because of" causation languag e to mean,

not the sole basis for the unlawful discrimination, but "a

factor that made a difference in the outcome." McNely v. Ocala

Star - Banner Corp. , 99 F.3d 1068, 1077 (11th Cir. 1996), cert.

denied , 520 U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d 1028

( 1997). Put another way, the "ADA imposes a 'but - for' liability

standard." Id. ; see also Farley v. Nationwide Mut. Ins. Co. ,

197 F.3d 1322, 1334 (11th Cir. 1999).

30. In this case, the evidence fails to persuade the

undersigned that Sam's Club terminate d Marshall's employment

because of her alleged disability. The evidence shows, rather,

that Marshall stopped showing up for work as scheduled, claiming

inability to perform unless provided a stool. Sam's Club

declined, for bona fide reasons, to let Marsh all sit on a stool

during her shift, but it did invite her, reasonably, to apply

for a medical leave of absence. Marshall was agreeable to

taking the offered leave but failed to follow the application

process through to completion. Sam's Club gave Marsha ll an

ultimatum: (a) resume working, (b) properly request a leave of

absence, or (c) be fired. Marshall failed to take either of the

courses of action that could have preserved her employment.

Consequently, Sam's Club dismissed her, for excessive

absent eeism and inability to perform. Though unfortunate for

Marshall, this is not unlawful discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order finding

Sam's Club not liable to Marshall for disability discrimination.

DONE AND ENTERED this 3rd day of April, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 2006.

END NOTES

1 / The proper corporate name of Petitioner's former employer is

Sam's East, Inc. At hearing, the undersigned ordered that the

style be amended to reflect this undisputed fact.

2 / Mar shall testified that she declined to follow her doctor's

recommendation that she undergo treatment with steroids

(presumably to reduce the inflammation) but did not describe

with any particularity the medical interventions, if any, that

were implemented on doctor's orders.

3 / Between February 21 and March 11, 2005, Marshall was

scheduled to work 10 shifts. She worked only one (on March 5,

2005) —— and that she left early.

4 / There is no competent ( i.e. nonhearsay) evidence in the

record as to why the doc tor refused to complete the form for

Marshall.

5 / It is undisputed that one of the greeters who worked with

Marshall was wheelchair - bound. Marshall argues that this fact

demonstrates that permitting her to sit on a stool would be a

reasonable accommodat ion. The employee in the wheelchair did

not sit in one place during her shift, however; she was,

instead, constantly on the move, working, performing all of the

duties of a greeter. Marshall, in contrast, proposed to sit

periodically and rest, performing only such duties as could be

carried out from a stationary position and otherwise taking a

break. The two situations, therefore, are distinguishable.

COPIES FURNISHED :

Danette T. Marshall

4200 Inverray Boulevard, Suite 3702

Lauderhill, Florida 33319

Lindsay A. Connor, Esquire

Amy R. Harrison, Esquire

Ford & Harrison LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

Denise Crawfor d, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 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.