08-002570 Shirley A. Jackson vs. Dollar General Corporation Status: Closed Recommended Order on Friday, January 9, 2009.

Summary: The evidence did not demonstrate discrimination based on handicap (glaucoma/impaired vision) when Petitioner was terminated from her position since she couldn`t perform material duties of job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY JACKSON, )

)

Petitioner, )

)

vs. ) Case No. 08-2570

)

DOLLAR GENERAL CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held on October 1, 2008,

before the Honorable Diane Cleavinger, Administrative Law Judge,

Division of Administrative Hearings in Panama City, Florida.

APPEARANCES

For Petitioner: Jean Marie Downing, Esquire

221 Thomas Drive

Panama City Beach, Florida 32408

For Respondent: Alva L. Cross, Esquire

2300 SunTrust Financial Centre

401 East Jackson Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner because of a handicap.

PRELIMINARY STATEMENT

On September 22, 2007, Petitioner, Shirley Jackson, (Petitioner) filed a Charge of Discrimination against

Respondent, Dollar General Corporation (Respondent), with the

Florida Commission on Human Relations (FCHR). The Charge

alleged that Respondent discriminated against Petitioner based

on handicap (vision loss) when Respondent failed to reasonably

accommodate her handicap, placed her on family medical leave and

then terminated her from employment. On April 17, 2008, the

FCHR filed a Notice of Determination: No Cause, which advised

Petitioner that she had 35 days from the date of the Notice to

request an administrative hearing. On May 22, 2008, Petitioner

filed a Petition for Relief alleging the same type of

discrimination contained in her earlier Charge. Additionally,

the Petition for Relief alleged that Respondent discriminated

against Petitioner based on her age. The Petition for Relief

was forwarded to the Division of Administrative Hearings.

Petitioner later dismissed her claim based on age discrimination

and the matter proceeded solely on the issue of discrimination

based on handicap.

At the hearing, Petitioner testified in her own behalf and

offered the testimony of three witnesses. Respondent offered

the testimony of two witnesses. Additionally, both parties

offered 17 joint exhibits into evidence, including relevant

portions of Petitioner’s deposition.

After the hearing, Petitioner filed a Proposed Recommended

Order on November 21, 2008. Respondent filed its Proposed

Recommended Order on November 17, 2008.

FINDINGS OF FACT

1. Sometime in July 2002, Petitioner was hired by

Respondent as a Store Clerk (now known as a Sales Associate) at

Store No. 3727 in Panama City, Florida. On March 1, 2003,

Petitioner was promoted to Lead Sales Associate.

2. Sometime around December 2005, Petitioner was diagnosed

with absolute glaucoma and cataracts. As a result of her

deteriorating eyesight, Petitioner asked the Store’s Manager,

Michaelene Mellor, to be reassigned to her earlier Sales

Associate position. Although there was some conflict in the

evidence on whether Petitioner was reassigned as a “store

stocker,” the better evidence demonstrated that Dollar General

did not have a formal position known as a “store stocker.”

3. The Sales Associate position consisted of a variety of

duties. Essential to the position were the following:

a. assist in setting and maintaining

planograms and programs;

b. build merchandise displays;

c. operate a cash register;

d. itemize and total a customer’s purchase;

e. collect payment from a customer and make

change;

f. operate a handheld scanner; and

g. assist with ordering merchandise and

maintaining inventory in the store.

4. Planograms are shelving strips that contain shelf tags.

They are the method that employees use to place merchandise in

the store and on the shelves. They also help in inventory

control.

5. Petitioner was reassigned by Ms. Mellor. Her primary

duties were to stock the store by using the planograms and shelf

tags. Ms. Mellor advised the District Manager about the

reassignment. However, she did not inform the District Manager

that Petitioner would primarily be limited to stocking the

store.

6. Under Ms. Mellor’s tenure as Store Manager, Store 3727

was not properly managed. The store was dirty, had incorrect or

out-of-date signage, incomplete or nonexistent planograms,

merchandise on the floor and blocking the aisles, and a high

incidence of inventory loss. Because of these problems,

Ms. Mellor was terminated in October 2006. That same month,

Thomas Rector became the Store Manager. His goal was to bring

the store into compliance with Dollar General’s operation

policies and to reduce the store’s inventory loss.

7. At the time Mr. Rector took over Store 3727, the store

had 4 positions and 7 employees allotted to it. The positions

were Store Manager, Assistant Store Manager, Lead Sales

Associate and Sales Associate. Each store was allotted a

specific number of labor hours, excluding the hours worked by

the manager, to cover the hours the store is open for business.

Because Store 3727 had only 7 employees, only two or three

employees worked during any given shift. With so few employees

to cover each shift, it was essential that all employees be able

to perform all the duties of the position that they filled. In

this case, it was essential that Petitioner be able to read a

scanner, run the cash register, make change, read a planogram,

read a shelf tag, locate merchandise and stock merchandise.

8. For the next several months, Mr. Rector observed that

Petitioner could not clock herself in or out of work. More

importantly, he observed that Petitioner had difficulties in

stocking merchandise in the proper place. He observed that

other employees had to sometimes help Petitioner with stocking.

Improperly stocked items caused inventory control problems,

increased the labor hours used by the store because time was

required to correctly place store items and could result in lost

revenue due to improper pricing. He also observed that she had

trouble reading the scanner, the planograms and shelf tags.

9. Based on his observations, Mr. Rector concluded that

Petitioner could not fulfill the duties of a Sales Associate.

He contacted the District Manager, Joe Peebles, and advised him

that Petitioner could not perform the duties of a Sales

Associate.

10. On June 6, 2007, Mr. Peebles met with Petitioner. He

read her the list of duties that a Sales Associate must perform

and asked her if she felt she could perform those duties. Those

duties are outlined above. Petitioner admitted she had

difficulty with reading a planogram and operating a cash

register.

11. Likewise at the hearing, Petitioner admitted and

demonstrated that she could not accurately read a planogram or

shelf tag. She admitted she could not build a merchandise

display, could not operate a cash register and could not make

change for a customer. The evidence was clear that Petitioner

could not perform the essential functions of a Sales Associate.

12. Eventually, Petitioner was placed on leave and was

told that, if her vision did not improve, she would be

terminated. At no time did Petitioner ask for or identify any

reasonable accommodation that could be made by Respondent to

enable her to perform her duties as a Sales Associate and the

evidence did not reveal that any such accommodations existed or

were available. Ultimately, Petitioner was terminated because

she could not perform the duties of a Sales Associate. The

evidence did not demonstrate that her termination was

discriminatory or the reasons given for her termination were

pretextual. Finally, the evidence did not demonstrate that

Petitioner’s vision impairment could be reasonably accommodated.

Given these facts, Petitioner’s Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat.

14. It is an unlawful employment practice for an employer

to discharge or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or privileges of

employment, because of such individual’s age, race, gender or

handicap. § 760.10(1)(a), Fla. Stat.

15. In cases of discrimination, Petitioner has the burden

of proving by a preponderance of the evidence that Respondent

committed an unlawful employment practice. Fla. Dep’t of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

16. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq . Cases interpreting Title VII are,

therefore, applicable to Chapter 760, Florida Statutes. See

School Bd. v. Hargis , 400 So. 2d 103, 108 and n. 2 (Fla. 1st DCA

1981); Harper v. Blockbuster Entertainment Corp. , 139 F.3d 1285,

1387 (11th Cir. 1998) (“No Florida court has interpreted the

Florida Statue to impose substantive liability where Title VII

does not.”), cert. denied , 525 U.S. 1000, 119 S. Ct. 509, 142 L.

Ed.2d 422 (1998); Bryant , 586 So. 2d at 1209; see also Scelta v.

Delicatessen Support Servs. , 146 F. Supp. 2d 1255, 1261 and n. 5

(M.D. Fla. 2001). See Reeves v. Sanderson Plumbing Prod., Inc. ,

530 U.S. 143 (2000); Chapman v. Al Transp., 229 F.3d 1012, 1024-

25 (11th Cir. 2000) (en banc) .

17. In Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), and McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973), the United States Supreme Court set for the

requirements for proving a prima facie case of discrimination,

which can vary depending on the type of discrimination case.

Under McDonnell , a Plaintiff has the initial burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If the Plaintiff establishes a

prima facie case, then the Respondent must go forward and

articulate a legitimate nondiscriminatory reason for the action

taken by the Respondent. Once the Respondent has articulated a

legitimate nondiscriminatory reason, the Plaintiff then must

establish by a preponderance of the evidence that the reason

given is not true or merely pretextual.

McDonnell Douglas Corp. v. Green , 411 U.S. at 802 n. 13; Schwartz

v. State of Florida , 494 F. Supp. 574, 583 (N.D. Fla. 1980).

McDonnell Douglas Corp. v. Green provides:

[t]hat a Title VII plaintiff carries the

initial burden of showing actions taken by

the employer from which one can infer, if

such actions remain unexplained, that it is

more likely than not that such actions were

“based on a discriminatory criterion illegal

under the (Civil Rights Act of 1964.)”

Teamsters v. United States , 431 U.S. 324, 358

(1977).

See also Furnco Construction Corp. v. Waters , 438 U.S. 567, 576

(1977).

18. In St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 113

S. Ct. 2742, 2747 (1993), the Court held that once the employer

succeeds in carrying his burden of producing a nondiscriminatory

reason for the challenged action, the employee must show that the

employer’s reason is pretextual. The final and ultimate burden

of persuading the trier of fact, by a preponderance of the

evidence, remains at all times with the employee. St. Mary’s

Honor Center v. Hicks , 113 S. Ct. at 2747.

19. The employee’s ultimate burden of persuasion may be

satisfied by direct evidence showing that a discriminatory

reason, more likely than not, motivated the decision involved, or

by indirect evidence showing that the proffered reasons of the

employer are not worthy of belief. Department of Corrections v.

Chandler , 528 So. 2d 1183, 1186 (Fla. 1st DCA 1991). In Reeves

v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000), the

U.S. Supreme Court resolved a conflict among the circuits about

the standard for establishing pretext fueled by the Court’s

earlier decision in St. Mary’s Honor Center v. Hicks , 509 U.S.

133 (1993), and made it clear that “pre-text plus” was not the

standard to be used. Reeves established the pretextual standard

as a permissive, case-by-case approach in “a plaintiff’s prima

facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false and . . . permit the

trier of fact to conclude that the employer unlawfully

discriminated.” Id. at 148. Justice O’Connor’s opinion for a

unanimous court carefully explained why evidence of pretext with

the prima facie case may be sufficient to find discrimination:

In appropriate circumstances, the trier of

fact can reasonably infer from the falsity of

the explanation that the employer is

dissembling to cover up a discriminatory

purpose. . . Moreover, once the employer’s

justification has been eliminated,

discrimination may well be the most likely

explanation, especially since the employer is

in the best position to put forth the actual

reasons for the decision . . .

Reeves , 530 U.S. at 147. See also Dep’t of Corrections v.

Chandler , 582 So. 2d 1186 (Fla. 1st DCA. 1991) and Chapman , 229

F.3d at 1024.

20. On the other hand, “[a] plaintiff is not allowed to

recast an employer’s proffered nondiscriminatory reason or

substitute [his] business judgment for that of the employer.”

Chapman , 229 F.3d at 1030. Rather, “an employee must meet that

reason head on and rebut it, and the employee cannot succeed by

simply quarreling with the wisdom of that reason.” Id.

21. In this case, Petitioner established that she is a

member of a protected class since her vision impairment and

blindness qualifies as a handicap. However, Petitioner failed

to prove a prima facie case of discrimination based on handicap.

None of the evidence shows any basis to conclude that Petitioner

was terminated because of her handicap. The evidence was clear,

and Petitioner admitted, that she could not perform the duties

of a Sales Associate. Petitioner did not ask for any reasonable

accommodation of her handicap. Finally, the evidence did not

demonstrate that a reasonable accommodation of Petitioner’s

handicap existed or was available. Having failed to establish a

prima facie case, Petitioner’s Petition for Relief should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that:

The Florida Commission on Human Relations enter a final

order dismissing the Petition for Relief.

DONE AND ENTERED this 9th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of January, 2009.

COPIES FURNISHED :

Larry Kranert, 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

Jean Marie Downing, Esquire

221 Thomas Drive

Panama City Beach, Florida 32408

Alva L. Cross, Esquire

2300 SunTrust Financial Centre

401 East Jackson Street

Tampa, Florida 33602

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.