08-002573 Jimmy Oates vs. Wal-Mart Stores East Status: Closed Recommended Order on Monday, February 2, 2009.

Summary: Petitioner, who was never terminated, was unable to demonstrate an adverse employment action based on handicap, failure to accommodate, race, color, or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY OATES, )

)

Petitioner, )

)

vs. ) Case No. 08-2573

)

WAL-MART STORES EAST, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on October 15, 2008, in Gainesville, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jimmy Oates, pro se

2115 Northeast 7th Avenue

Gainesville, Florida 32641

For Respondent: Lindsay C. O'Brien, Esquire

Michelle Tatum, Esquire

Ford and Harrison, LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent Employer committed an unlawful

employment practice against Petitioner on the basis of his race,

color, disability/handicap, and/or age. 1/

PRELIMINARY STATEMENT

On November 20, 2007, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR), alleging Respondent Wal-Mart Stores East LP (Wal-Mart)

violated Chapter 760, Florida Statutes, by discriminating

against Petitioner on the basis of his race, color, or

disability/handicap and/or age. On May 15, 2008, FCHR issued

its Notice of Determination: No Cause.

Petitioner filed a Petition for Relief on May 22, 2008. On

or about May 23, 2008, FCHR referred the case to the Division of

Administrative Hearings (DOAH). A Notice of Hearing was issued,

scheduling the case for hearing on August 7-8, 2008. The

original hearing date was continued once, upon Respondent's

unopposed motion, and the case was ultimately set for hearing on

October 15-16, 2008. The hearing was begun and concluded on

October 15, 2008.

At hearing, Petitioner testified on his own behalf and had

Exhibits P-1, and P-3 through P-5, admitted in evidence. There

was no Exhibit P-2. 2/ Respondent presented the oral testimony of

Thomas Horton (by telephone) and Jennifer Chewning. Respondent

had Exhibits R-1 through R-7 admitted in evidence. The

necessary verifications regarding out-of-state telephonic

testimony by Mr. Horton, together with required duplicate

exhibits, were timely-filed on October 20, 2008.

A Transcript was filed on November 17, 2008. Only

Respondent timely-filed a Proposed Recommended Order on

December 1, 2008. Petitioner did not file a proposed

recommended order, despite having been sent an instructional

Post-Hearing Order on November 18, 2008. Respondent's timely-

filed Proposed Recommended Order has been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African-American male who was 66-68

years of age at all times material.

2. Petitioner worked successfully, in a variety of

positions, for Respondent from March 20, 1999, until July 29,

2007. By all accounts, he was an excellent employee in each

position. He has, at his own expense, trained for, and

received, a security guard license and education as a fork lift

operator.

3. The published job description for employment as a Wal-

Mart Garden Center Sales Associate, has, since May 2005,

required, among other "essential functions," that one be able

to:

While moving within the department over

uneven surfaces and moving up and down a

ladder, frequently lifting, sorting,

carrying, and placing merchandise and

supplies of varying sizes, constantly

lifting up to 50 pounds without assistance

and over 50 pounds with team lifting.

On March 3, 2006, Petitioner signed this job description,

signifying that he possessed the ability at that time to perform

all its essential functions.

4. On a Saturday in July 2007, Petitioner was still

working for Respondent as a Garden Center Sales Associate.

Early that day, Petitioner and a cashier were alone in the

garden center of Respondent's store at 13th Avenue, Gainesville,

Florida. Upon her request, Petitioner loaded 83 bags of top

soil into a customer's truck without assistance. Later that

same day, Petitioner's wrist began to hurt.

5. The following Monday, Petitioner’s hand was swollen.

He approached Store Manager Thomas Horton, and told Mr. Horton

that he needed to see a doctor. Petitioner did nothing to alert

Mr. Horton that he might have had an on-the-job injury.

Mr. Horton orally authorized Petitioner to go to a doctor.

6. Petitioner unilaterally selected Dr. Youssef W. Wassef

to treat his wrist. There is no evidence of the workers'

compensation process, pursuant to Chapter 440, Florida Statutes,

ever being invoked.

7. On or about August 2, 2007, Dr. Wassef provided a note

that said:

Patient should not allowed [sic] to lift

more then [sic] 15 lb.

This note was provided to Respondent’s store personnel office by

Petitioner at or about the same time he got it.

8. According to the August 2, 2007, restrictions placed on

Petitioner by his treating physician, Petitioner was unable to

perform the essential functions of the Garden Center Sales

Associate position.

9. Petitioner testified that he last worked on July 29,

2007.

10. On or about September 6, 2007, Petitioner delivered to

his store’s personnel office another note from Dr. Wassef,

stating:

Patient should continue until further notice

on full-time, light duties, no lifting or

pushing.

This note also placed medical restrictions on Petitioner which

made him unable to fulfill the essential functions of his Garden

Center Sales Associate position.

11. It is unclear whether Petitioner was working or was on

the equivalent of sick leave from Monday, July 30, 2007, until

September 7, 2007. It is most probable, based on the evidence

as a whole, that at least after receiving the August 2, 2007,

doctor’s note, Wal-Mart did not allow Petitioner to work in the

capacity of a Garden Center Sales Associate. Specifically,

Mr. Horton testified that he “called back” Petitioner sometime

during the back-to-school/college season, which “season” would

have been in late August or early September, to work in a

temporary position. The temporary position assigned Petitioner

was described by Ms. Chewning, the store's Personnel Manager, as

a “May I assist you?” position. In this temporary position,

which lasted only a few weeks, Petitioner was only required to

walk around and point out to inquiring shoppers their requested

back-to-school/college materials. Wal-Mart did not require

Petitioner to work outside his medical restrictions. When the

back-to-school/college season ended, so did the temporary

position.

12. When the back-to-school/college season ended and the

temporary sales associate position was eliminated, there were no

positions available at Petitioner’s store that he could perform

with his medical restrictions on lifting and pushing. Also, at

that point in time, Mr. Horton began to lay off people in some

positions. However, Petitioner remained on leave and was not

laid off.

13. Although Petitioner referred to a People Greeter

position in his November 20, 2007, discrimination complaint

before FCHR, there is no credible record evidence that

Petitioner requested a Wal-Mart People Greeter position as an

“accommodation” of his condition prior to filing his

discrimination complaint or that a People Greeter position was

vacant at any time material to this case. However, the

published job description for employment as a Wal-Mart People

Greeter has, since May 2005, required, among other "essential

functions" that the incumbent be able to:

Provide shopping carts to customers by

pushing or pulling up to 10 pounds of

pressure . . . Frequently lifting, placing

and deactivating items weighing up to 10

pounds without assistance, and regularly

lifting merchandise over 10 pounds with team

lifting.

14. Petitioner documented at hearing, via an old doctor’s

report, that in 1991, he had severe arthritis in both his elbows

and that surgery was contemplated at that time. However, there

is no clear evidence that he had the surgery or, if he had the

surgery, what was its outcome. There also is no persuasive

evidence that Respondent’s personnel office or any Wal-Mart

employee material to the instant case knew about this doctor’s

report prior to the present litigation.

15. Petitioner demonstrated at hearing that his elbows are

visible in the short-sleeve shirts worn by Wal-Mart employees.

He believes his elbows stick out farther than other people’s

elbows, and he speculated that his superiors and store personnel

office employees decided visually that he had a handicap because

“my arms stick out” and because of a scar on one arm. The

undersigned observed his demonstration. If there is a

deformity, it is not substantial, and the scar is not visible

without close inspection. Sometime in August-September 2007,

probably during the back-to-school/college season, Mr. Horton

observed Petitioner wearing what Mr. Horton believed to be a

brace on Petitioner’s hand, but which was, in fact, a wristband.

However, no evidence supporting Petitioner’s theory that any

superiors or personnel office employees did, in fact, perceive

him as disabled/handicapped was adduced.

16. Petitioner denied ever being handicapped or unable to

perform the essential functions of his job as a Wal-Mart Garden

Center Sales Associate. Mr. Horton and Jennifer Chewning each

credibly denied ever perceiving Petitioner as handicapped, even

up to the date of the hearing.

17. When he had been hired in 1999, Petitioner

acknowledged receipt and understanding of the policies contained

within Respondent’s Associates Handbook. Petitioner again

acknowledged receipt and understanding of these policies on

March 29, 2001, when he was issued a revised Associates

Handbook.

18. Wal-Mart regularly offers leaves of absence to any

associate who has a medical condition that is not perceived by

the employee or management as a “disability” under the Americans

with Disabilities Act (ADA) or the Florida Civil Rights Act, but

whose condition prevents him from performing his job.

Ms. Chewning testified that the Request for Leave of Absence

form described below is used specifically for situations not

covered by the ADA or by State disability laws. 3/

19. The form upon which an employee may apply for such a

leave of absence advises that the leave of absence is without

pay; that there will be no accrual of benefits or seniority

during the leave of absence; and that the employee must pay his

own insurance premiums during this period. Grant of the

requested leave is dependent upon the treating physician’s

verification of the employee's medical condition. ( See Finding

of Fact 20.) Based on Petitioner's inability to perform the

essential functions of any available position within the store

in September 2007, Ms. Chewning offered Petitioner such a leave

of absence.

20. Petitioner disputes some of the contents of the

Request for Leave of Absence form in evidence, which completed

form Mr. Horton retroactively approved on September 21, 2007,

for Petitioner to be on continuous leave beginning September 7,

2007, with a return date of December 31, 2007. However,

Petitioner admits that he signed this form. The date beside

Petitioner’s signature seems to be September 19, 2007.

Petitioner’s signature on this form signifies that he was

requesting “medical leave,” thereby acknowledging:

A medical condition (including pregnancy and

childbirth, and on-the-job Workers’ Comp.

injuries) requiring time away from work.

The Health Care Provider’s Section, below,

must be completed and signed. Before

returning, associate must submit a return-

to-work statement/release from a Health Care

Provider detailing restrictions, if any. . .

.

* * *

. . . I fully understand Wal-Mart’s Leave of

Absence Policy.

Petitioner also agreed that on or about September 19, 2007, as

reflected on the portion of this Request for Leave of Absence

form which was filled-in by Dr. Wassef, Petitioner’s doctor had

certified that Petitioner should begin medical leave on

September 9, 2007, and continue through September 30, 2007.

21. Petitioner asserted that on or about September 13,

2007, he delivered to someone other than Ms. Chewning in

Respondent's personnel office another note from Dr. Wassef

stating:

Patient has partial permanent disability. [4]

Does not need sick leave. He needs to

continue to work full-time with limited

lifting, pulling, and pushing.

22. Petitioner asserted that on or about October 29, 2007,

Petitioner delivered to someone other than Ms. Chewning in

Respondent's personnel office the last note he had received from

Dr. Wassef, which stated:

Patient able to work full-time with limited

lifting to 20 pounds.

23. Ms. Chewning testified that neither the September 13,

2007, nor the October 29, 2007, medical notes contemporaneously

reached either herself or Petitioner’s personnel file.

According to the last medical note she received prior to

hearing, Petitioner could not even perform the essential

functions of a People Greeter position. ( See Findings of Fact

10 and 13.) Reviewing Dr. Wassef’s September 13, 2007, and

October 29, 2007, notes for the first time at hearing, she

pointed out that, according to the most recent note, Petitioner

was still medically restricted from performing some of the

essential functions of his Garden Center Sales Associate’s

position. ( See Findings of Fact 3 and 22.) She has never

received a medical release permitting Petitioner to return to

full functioning as a Garden Center Sales Associate.

24. Ms. Chewning testified that Wal-Mart has a policy that

a medical leave of absence may not extend beyond one year.

However, neither its printed non-ADA leave of absence policy in

evidence nor the Request for Leave of Absence form in evidence

specifies a one year maximum leave. More than a year after

Petitioner’s leave began on September 7, 2007, and nearly 10

months after the leave was supposed to end on December 31, 2007,

Wal-Mart has not taken steps to terminate Petitioner, because of

the current litigation that began with Petitioner’s filing his

complaint with FCHR on November 20, 2007. Ms. Chewning

testified that, as of the date of hearing on October 15, 2008,

Respondent had not terminated Petitioner; Petitioner remained on

his approved unpaid leave of absence; and if Petitioner brings

in a doctor’s note saying he can perform all the essential

functions listed on his Garden Center Sales Associate’s job

description, including but not limited to being able to lift 50

pounds, Wal-Mart will put Petitioner back in his Garden Center

Sales Associate position, and he will retain his salary level,

his accrued years of service, and all his benefits as they

existed at the beginning of his leave of absence.

25. Petitioner erroneously perceives himself as having

been terminated and wants to go back to work, but he has not yet

presented any doctor’s release that allows him to perform

regularly the functions of a Garden Center Sales Associate.

26. There is no evidence herein that under similar

conditions Wal-Mart has treated any person of any race other

than African-American differently than Petitioner has been

treated.

27. There is no evidence herein that under similar

conditions Wal-Mart has treated any person of any age other than

66-68 years of age, differently than Petitioner has been

treated.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1), and Chapter 760,

Florida Statutes (2007-2008).

29. The initial burden of proof and duty to go forward

herein is upon Petitioner. This type of case is subject to a

“shifting burden of proof,” only if Petitioner can first

establish a prima facie case that some type of disparate

treatment has, in fact, occurred. Where Petitioner cannot

establish each element of a prima facie case of discrimination,

the burden of proof never shifts to the Respondent Employer to

articulate a legitimate, non-discriminatory reason or reasons

for taking the employment action(s) which Petitioner claims are

adverse to him and discriminatory. See Texas Dept. of Comm.

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981); Pace v. Southern Railway System, 701 F.2d 1383, 1391

(11th Cir. 1983).

30. An adverse employment action equates to a “significant

change in employment status, such as hiring, firing, failure to

promote, reassignment with significantly different

responsibilities or a decision causing a significant change in

benefits.” See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742,

761 (1998). See also Davis v. Town of Lake Park, Fla. , 245 F.3d

1232, 1239 (11th Cir. 2001), and Frederick v. Sprint/United

Management Co. , 246 F.3d 1305, 1311 (11th Cir. 2001). Without

initial evidence that such a significant change has occurred,

the burden does not shift.

31. Because there is no evidence of discrimination via

treatment of Petitioner, disparate from treatment of any other

employee, regardless of race or color, Petitioner has not

presented a prima facie case of racial discrimination. See

Texas Dept. of Community affairs v. Burdine, supra ; McDonnell-

Douglas v. Green , 411 U.S. 792 (1973); and Dept. of Corrections

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991).

32. Because there is no evidence of age discrimination via

treatment of Petitioner disparate from that of any other

employee, regardless of age, Petitioner has not presented a

prima facie case of age discrimination. See cases cited, supra ;

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

2000).

33. Petitioner was not terminated, let alone terminated by

reason of a handicap. Therefore, Petitioner could not prove he

was terminated solely by reason of a handicap, which is a

threshold requirement of a prima facie case of handicap

discrimination. See Hilburn v. Murata Electronics North

America, Inc. , 181 F.3d 1220 (11th Cir. 1999).

34. Petitioner also has not met the generally-accepted

presented none of the usual indicators that would establish that

he was "disabled" or "handicapped," as those terms are generally

understood in employment law. Therefore, the issue of whether

or not the Employer failed to "accommodate" Petitioner’s

disability/handicap need not be addressed. See cases cited

supra and Toyota Manufacturing, Kentucky, Inc. v. Williams , 534

U.S. 184, 122 S. Ct. 681 (2002); Albertson’s, Inc. v.

Kirkinburg , 527 U.S. 555, 119 S. Ct. 2162 (1999); Collado v.

United Parcel Service, Co. , 419 F.3d 1143 (11th Cir. 2005);

Sutton v. Lader , 185 F.3d 1203, 1209 (11th Cir. 1999); Hedberg

v. Indiana Bell Telephone Co., Inc. , 47 F.3d 928, 932 (7th Cir.

1995); Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th

Cir. 2001).

35. Also note that in Warren v. Volusia Co., Florida , 188

Fed Appx. 859 (11th Cir. 2006), a physician’s notation that the

employee could only perform light duty or sedentary jobs was

held not to be the equivalent of a request for accommodation.

36. However, assuming, arguendo , but not ruling, that

Petitioner were handicapped/disabled, and even assuming, again

without ruling and without any evidence to that effect, that the

two medical notes received by Wal-Mart’s personnel office, and

even the two medical notes not proven to have been received by

the personnel office, constituted Petitioner’s requests for

accommodation, no vacant position fitting Petitioner’s medical

restrictions existed in his Wal-Mart store at the crucial times.

At all times relevant, no People Greeter position or other light

duty position was vacant. An employer is not required to

displace another employee from an existing position or to create

a new position just so that a handicapped employee may fill it.

37. On the most important allegation, termination, this

case represents a situation in which pure lack of communication

between the parties has fostered and prolonged litigation.

Petitioner believed he was terminated, but Respondent was simply

waiting for Petitioner to present its store personnel office

with a medical release from his doctor stating Petitioner could

perform the essential functions of his job description before

putting Petitioner back in his Garden Center Sales Associate

position. Now, Petitioner runs the risk that Wal-Mart may

activate its policy to actually terminate Petitioner for failure

to return an appropriate medical note before the approved leave

of absence ran out on December 31, 2007, or before one year had

run from September 7, 2007. That would be tragic and totally

contrary to the evidence given at hearing, but the undersigned

cannot second-guess what may occur in the future. For now, the

Findings of Fact do not support a conclusion that Petitioner has

been discriminated against in any of the statutorily protected

classes.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner’s Complaint of

Discrimination and Petition for Relief.

DONE AND ENTERED this 2nd day of February, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 2nd day of February, 2009.

ENDNOTES

1/ Boxes for these categories/classes of discrimination were

checked on the complaint brought before the Florida Commission

on Human Relations (FCHR). Also in the body of his complaint

before FCHR, Petitioner claimed the Employer failed to

accommodate him as it had "older and perceived as disabled

employees who are white" with a light duty position. The

Petition for Relief, which FCHR referred to DOAH, specifies no

category(ies) or classes of discrimination, but the Petition was

not challenged for sufficiency, and at hearing, the foregoing

categories were orally stipulated to be at issue.

2/ The body of the Transcript accurately reflects that there is

no Exhibit P-2, but the Transcript’s Table of Contents page is

out-of-sync with the contents of the Transcript.

3/ However, no witness linked this policy to either of the

Associates Handbooks signed-for by Petitioner and described in

Finding of Fact 17.

in workers’ compensation practice, signifying that no further

improvement is possible because “maximum medical improvement”

has been reached. Medical physicians may disagree upon when a

particular disability becomes permanent. In the workers’

compensation forum, it is not up to physicians, but up to a

Judge of Compensation Claims, to determine whether PPD has been

reached. Neither party herein has asserted that this note

rendered Petitioner permanently handicapped for purposes of

Chapter 760, Florida Statutes. As to whether the note

specifying "limited lifting, pulling, and pushing" would have

permitted Petitioner to work as a People Greeter is moot, as no

People Greeter position was vacant. There is also a subsequent

medical note. ( See Findings of Fact 22-23 and Warren v. Volusia

County, Florida , cited in Conclusion of Law 35.)

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jimmy Oates

2115 Northeast 7th Avenue

Gainesville, Florida 32641

Lindsay C. O'Brien, Esquire

Ford and Harrison, LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

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.