09-006222 Deborah Mcrae vs. Kash N' Karry, D/B/A Sweetbay Supermarket Status: Closed Recommended Order on Friday, October 29, 2010.

Summary: Petitioner is still employed by Respondent, but out on temporary disability; Petitioner did not suffer an adverse employment action; did not prove she was permanently disabled; and did not show that she was treated differently. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH MCRAE , )

)

Petitioner , )

)

vs. ) Case No. 09 - 6222

)

KASH NÓ KARRY, d/b/a SWEETBAY )

SUPERMARKET , )

)

Respondent . )

)

RECOMMENDED ORDER

Pur suant to notice, the final hearing in this case was

heard before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings, on May 18, 19 , and 20,

2010, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Geralyn Farrell Noon an, Esquire

Law Office of Geralyn F. Noonan

8250 College Parkway, Suite 202 - B

Post Office Box 07338

Fort Myers, Florida 33919

For Respondent: Peter W. Zinober, Esqui re

Jay P. Lechner, Esquire

Greenberg Traurig, P.A.

625 East Twiggs Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

Whether Petitioner was subjected to age, marital sta tus,

and disability or perceived disability discrimination while

employed by Respondent, in violation of Subsection 760.10(1)(a),

Florida Statutes (2009). 1

Whether Petitioner was subjected to retaliation while

e mployed by Respondent, in violation of Subsec tion 760.10(7),

Florida Statutes .

PRELIMINARY STATEMENT

Petitioner filed her Charge of Discri m i n ation with the

Florida Commi s sion on Human Relations ( FCHR) on June 12, 2009.

Following an investigation, a Notice of Determination : No Cause

was issued on Oc tober 23, 2009. A Petit ion for Relief was

timely filed, with the FCHR on November 10, 2010 and referred to

the Division of Administrative Hearings on November 12, 2009 ,

and discovery ensued. This matter was continued once at the

request of Petitioner. R espondentÓs Motion to Strike

PetitionerÓs Demand for Compensatory and Punitive Damages was

granted.

At the hearing, P etitioner testified in her own behalf and

presented the testimony of five fact witnesses and one expert

witness, Everett Tessner, Ph . D. Re spondent presented the

testimony of 11 witnesses : Patrick Fung, Anna Lowry, Edward

Pitts, Dina Harker, Carten D. Thomas, Nancy Nieradha, Erin

Goffena, Opal Gagliardo , Diane Faga n , Christine S t ills , and Anna

Winters .

Petitioner offered three exhibits , whic h were admitted in

evidence . Respondent offered nine exhibits , which were

admitted.

The three - volume T ranscript was filed on June 15, 2010.

The parties timely filed their proposed recommended orders.

They have been given careful consideration in the pre paration of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Deborah McRae, is a r egistered p harmacist,

licensed in Florida and Georgia since January 25, 1978.

Petitioner has been employed by Respondent, Kash N' Karry, d/b/a

Sweetbay Supermarket ( Sweetbay or Respondent ) , from January 2005

to the present. Petitioner is currently on an extended leave of

absence, but remains employed by Respondent .

2. Respondent is an employer under the Florida Civil

Rights Act ( FCRA ) of 1992 .

A. PetitionerÓs Emplo yment at the Daniels Parkway Store

3. From January 2005 until December 2008, Petitioner

worked as an a ssistant p harmacy m anager inside Sweetbay store

located on Daniels Parkway in Fort Myers, Florida. Her job

duties included filling and dispensing prescr iptions, counseling

customers, screening for drug interactions or patient allergies,

communicating with physicians to clarify prescriptions , and

contacting insurance companies when necessary.

4. Although the Daniels Parkway pharmacy was relatively

slow, R espondent never promised Petitioner that she would not be

required to work at a high - volume store. In fact, during the

time she was employed at the Daniels Parkway store , she covered

shifts at higher - volume stores, including the North Fort Myers

store, wh ose pharmacy had at least double the weekly volume of

the Daniels Parkway store .

5. Although upper management had not been informed of

problems with PetitionerÓs job performance at the Daniels

P arkway store, the pharmacy manager and store management

recei ved some complaints from customers about Petitioner being

rude and providing poor customer service. Store management

handled these complaints informally by speaking directly to

P etitioner about them.

6. PetitionerÓs pharmacy manager at the Daniels Parkwa y

store was Patrick Fung (Fung) . In addition to a few customer

complaints to Fung , Petitioner w ould leave a lot of tasks for

Fung to complete the following day and would create difficulties

with respect to the pharmacy schedule.

7. In February 2009, Resp ondent permanently closed the

Daniels Parkway store. Earlier, in mid - January 2009, the

company announced to the associates that the Daniels Parkway

store would be closing.

8. In December 2008, Petitioner took a medical leave of

absence for back surgery. Although she mentioned that she was

having back surgery, Petitioner did not inform anyone in

Respondent 's management that she had a permanent disability

concern ing her back or th at she had any other disability.

9. Respondent's management did not know Pet itioner had,

nor did it regard Petitioner as having , a permanent disability.

Petitioner never asked for an accommodation for her back pain or

any mental health disability. Indeed, Petitioner never

submitted any documents to Respondent , stating that she h ad a

disability or any type of mental health condition.

10. Petitioner never told Respondent that she had a mental

health condition. No one in Respondent's management knew or

thought that Petitioner had a mental condition and never saw any

documentation to that effect.

11. Petitioner was still on a medical leave of absence in

early February 2009, when the Daniels Parkway store closed.

B. Employment and Promotion to Pharmacy Manager Position at

Lehigh Acres

12. In mid - January 2009, when the compa ny announced the

Daniels Parkway store closing, there were only two open pharmacy

positions in the region: t he a ssistant p harmacy manager

position at the store in Lehigh Acres near Fort Myers , Florida ,

and the a ssistant p harmacy manager position in the st ore in

Estero, F lorida .

13. The r egional p harmacy b usiness s upervisor during the

relevant time period was Diane Fagan (Fagan) . Fagan made an

effort to place Petitioner and Fung into the two open pharmacy

positions. Fagan felt both Fung and Petitioner we re good

pharmacists and wished to retain them with Respondent .

14. Because Fung was a pharmacy manager and actively on

the payroll , he was give n the option of accepting either of the

two open assistant pharmacy manager positions or, alternatively,

to acce pt a severance package. Fung voluntarily selected the

Estero position, to become effective after the Daniels Parkway

store closed. In doing so, Fung voluntarily accepted a demotion

with a concomitant reduction in pay. It is undisputed that Fung

was qual ified for the Estero position, he was PetitionerÓs

supervisor at the time , and , therefore, it was reasonable that

he be offered the position first.

15. By allowing Fung to decide between the two positions,

Fagan did not consider PetitionerÓs or FungÓs age , marital

status, or disability status. Petitioner failed to provide any

evidence as to FungÓs age, marital status or disability status,

and whether they differed from PetitionerÓs. There is no

evidence on this issue that demonstrated that any decisions made

by Respondent regarding PetitionerÓs employment were made

because of age, her marital status, disability or the perception

that she had a disability.

16. After Fung selected the Estero position, Petitioner

was offered the remaining assistant pharmacy manager position at

the Lehigh Acres store, to become effective after the Daniels

P arkway store closed , and when she returned from medical leave.

At the time, Petitioner did not yet have a projected release

date to return to work. Alternatively, she was offered a

severance package.

17. In late February 2009, the pharmacy manager at the

Lehigh Acres store abruptly resigned her position. On March 5,

2009, the two positions were offered to Petitioner. The

following day, Petitioner voluntarily accepted th e position of

pharmacy manager . This was a promotion for Petitioner, which

came with an increase in salary and additional benefits.

18. During these discussions, Petitioner was offered the

option of either a 30 - hour or 36 - hour work week (the 36 - hour

week came with the pro rata increase in pay). Petitioner

voluntarily selected the 30 - hour work week.

19. Petitioner expressed that a 30 - hour work week would be

a positive for her . Petitioner never informed Respondent that

she could not go to the Lehigh Acre s store or that working at

the Lehigh Acres store , in any way , would or did affect her back

condition or any other alleged disability she may have had.

20. Petitioner never informed Respondent that she had a

permanent disability of any kind. Petitioner c laims that she

told Fagan that Ðshe does not do well under stress.Ñ Assuming

that to be true , that statement does not qualify as informing

Respondent that she had a mental health disability, and

Petitioner never asked for a reasonable accommodation for an y

mental condition or disability . She never filed a request in

writing for reasonable accommodation . The discussions about the

job transfer and promotion were communicated to Petitioner while

she was out on leave for the back surgery . Petitioner never

i ndicated that the phone calls made to her by Fagan were

inappropriate or unwelcomed.

21. To the extent Petitioner contends the Lehigh Acres

store was stressful due to high volume, the evidence shows that

the Lehigh Acres pharmacy, although busier than the Daniels

Parkway store , was a low - volume pharmacy, in comparison to other

pharmacies in the region.

22. Petitioner started in her pharmacy manager position at

the Lehigh Acres Pharmacy on M arch 15, 2009, after she had been

released by her doctor to return to work without restrictions of

any kind. The job duties of a pharmacy manager are

substantially the same as the job duties of an assistant

pharmacy manager, the position Petitioner held at the Daniel s

Parkway store . The primary addition al duty was that Petitioner

was charged with the duty of working out the schedule between

her and the assistant pharmacist and has input as to the

pharmacy technicianÓs work schedule.

23. PetitionerÓs assistant pharmacist at the Lehigh Acres

store was Opal Gagliard o (Gag liardo) . Petitioner presented no

evidence as to GagliardoÓs age or disability status, but

testimony showed that she was married. In addition, Eron

Goffena worked as a pharmacy technician at the Lehigh Acres

pharmacy on Mondays and Tuesdays.

24. Shortly after Petitioner started at the Lehigh Acres

store, Respondent started receiving customer complaints about

her . These includ ed complaints about disorganization,

inaccurate and incomplete filling of prescriptions, failure to

fill prescriptions in a timely manner, and talking on the phone

while ignoring customers for extended periods of time. Some

customers became so dissatisfied that they transferred their

prescriptions to another store.

25. The Lehigh Acres pharmacy was open six days per week

and was clo sed on Sundays. Petitioner was scheduled to work

three 10 - hour shifts per week. When Petitioner started at the

Lehigh Acres store, Gagliardo was scheduled to work two 10 - hour

shifts per week, and the other shift was covered by another

rotating pharmacist . Soon thereafter, in March 2009, Gagliardo

agreed to become full - time and, like Petitioner, worked three

10 - hour shifts per week.

26. C onsisten t with normal practice, Petitioner and

Gagliardo worked together to agree to a mutually - a cceptable

schedule: t wo - day - on/ two - day - off , with each having every other

weekend off. However, Petitioner later decided she no longer

wanted to work this schedule and sought to make changes to it .

This gave rise to an ongoing disagreement between Petitioner and

Gagliardo reg arding the schedule, which was not resolved by the

time Petitioner went out on her second leave of absence.

27. In addition, Petitioner failed to complete many of her

daily pharmacist duties. The testimony is credible that she

failed to consistently fill the prescriptions that came in

during her shift; instead, leaving them for the next shiftÓs

pharmacist. Petitioner was disorganized and did not follow the

proper workflow procedures. This result ed in customersÓ

prescriptions not being completed i n a tim e ly manner .

Additionally, P etitioner did not answer the telephone often

while she was working, failed to put up the stock that came in

during her shift, left the pharmacy messy , and would not empty

her garbage, leaving it overnight for the next pharmacist to do.

28. Petitioner did not work well with her coworkers and,

unlike other pharmacists, delegated problems and insurance

issues to the pharmacy technician s , or left them for Gagliardo.

29. On Saturday, March 21, 2009, Gagliardo wrote a note to

Petitio ner setting forth her concerns about her work and

customer complaints, and how it was affecting GagliardoÓs

working conditions. Gagliardo left the note next to the

pharmacy computer for Petitioner to read during her next

scheduled shift.

30. When Fagan l earned of customer complaints about

Petitioner and issues regarding the timeliness of processing

prescriptions, she asked her pharmacy specialist, Christine

Stills (Stills) , to visit the store to introd uce the companyÓs

pharmacy work flow program to P etitio ner , in order to reduce the

level of stress and improve customer service.

31. On March 23, 2009, Stills, Anna Winters (Winters) , and

P etitioner met in WintersÓ office to discuss the workflow

procedures. In response, Petitioner indicated that she wanted

a dditional technician hours to help with the workflow.

Petitioner did not express or suggest that her desire for more

technician hours was , in any way , due to, or a request for

accommodation for any disability.

3 2 . R espondent has company - wide guidelines f or determining

the number of pharmacy technician hours that can be used in each

store, based on the number of prescription filled by the store

per week. The staffing at the Lehigh Acres pharmacy was

consistent with these guidelines and was consistent with

staffing before and after P etitioner worked there. Although

Petitioner disagreed with the guidelines, PetitionerÓs pharmacy

technician hours actually exceeded the company guidelines.

33. Pursuant to the guidelines, a pharmacy with Lehigh

AcresÓ volume w as allotted six hours of technician help per

week. During PetitionerÓs tenure, the Lehigh Acres pharmacy was

provided at least 13 hours of technician help. In addition ,

P etitioner had a trainee helping her on the cas h register for at

least two days. The Lehigh Acres pharmacy also was staffed

similarly pursuant to the guidelines under the previous p harmacy

m anager, Anna Lowry. The customer volume (and number of

technician hours) at the Lehigh Acres pharmacy has remained

approximately the same since Petit ioner went out on a second

leave of absence.

34. Following the March 23, 2009 , meeting, Petitioner went

back to the pharmacy and found the note Gagliardo had left by

the computer. Petitioner returned t o Stills and acc used

Gagliardo of ÐsabotagingÑ her. Petitioner also called Gagliardo

at home that evening and was very belligerent, accusing

Gagliardo of ÐsabotageÑ and stating that Gagliardo had

Ðcrucified herÑ and Ðnailed her to the cross.Ñ

35. On Friday, April 3, 2009, a meeting was held at the

Lehigh A cres store between Petitioner, Fagan, Stills and

W inters. This meeting was to be a fact - finding meeting to let

Petitioner know her performance was not at the expected level,

to discuss the customer complaints and concerns, and to get some

feedback from P e titioner as to why this was happening.

36. During this meeting, Petitioner was counseled with

respect to the customer complaints about her. In response,

Petitioner blamed Gagliardo for at least one of the complaints

and again accused Gagliardo of Ðsabota gingÑ her. The only

example Petitioner could provide of purported ÐsabotageÑ was

that a box of paper clips she had placed on the pharmacy counter

had been move d , and she believed that Gagliardo hid them

(although the paper clips later were found in a draw er marked

Ðpharmacy suppliesÑ). Fagan asked Petitioner for other examples

of Ðsabotage,Ñ to which Petitioner pulled out a bundle of notes ,

which , she suggested may reflect additional examples, but

Petitioner would not turn them over or allow anyone to rea d

them.

37. Petitioner also responded that the pharmacy manager

duties were overwhelming . W hen asked for specifics, she could

not provide any examples of duties she had as a pharmacy manager

that were over and above what she previously had as the

assista nt pharmacy manager. Instead, Petitioner again requested

that she needed more pharmacy technician hours. The pharmacy

staffing guidelines were again explained to her, and her request

was denied. Near the conclusion of the meeting, Fagan asked

Petitioner if she had any questions or comments in response to

what had been presented, but Petitioner did not offer any

questions or comments. At no time during the meeting did

Petitioner say anything about age or disability discrimination ,

or retaliation.

38. At no time during the meeting was P etitioner ever told

that her employment was being terminated, that she was being

suspended or demoted, or that she was being subjected to a

reduction in salary or benefits , or any other adverse employment

action. Petitione rÓs counseling ha d no tangible impact on

terms, conditions , or privileges of her employment. Petitioner

was never suspended, her employment was not terminated , and her

salary and benefits were not reduced.

39. Following the meeting, Petitioner went to th e store

pharmacy, gathered her personal belongings and pharmacy license ,

packed them up , and left the store. She was not asked to do

this, nor was it even suggested; rather, she took it upon

herself to behave as if she would not be returning to the store.

40. A Counseling Memo was prepared specifying the concerns

and issues shared with Petitioner during the meeting. A

Counseling Memo is a document on which company management

highlights an issue related to job performance . It coaches an

associate , as to , how that issue can be addressed and resolved.

Neither the meeting nor the C ounseling M emo were in any way

based on PetitionerÓs age, marital status, disability or any

perceived disability.

41. Because Petitioner had removed her possessions from

the phar macy, management was concerned she may not be returning

for her next scheduled shift: Monday, April 6, 2009. Thus,

Stills (who was responsible for insuring pharmacy coverage)

called Petitioner and asked her if she was reporting to work on

Monday. Winter s also called P etitioner to see how she was

doing. Although Petitioner was offended, t hese calls did not

constitute adverse employment actions.

42. Petitioner reported to work for her next shift on

Monday, April 6, 2009, where she was presented the Couns eling

Memo. Petitioner was not being demoted, fired, suspended or

otherwise suffering adverse employment action. In response,

Petitioner wrote management , stating that she Ðdid not realize

the full responsibilities of pharmacy manager,Ñ but did not make

any reference to age or disability discrimination , or

retaliation.

C. Petitioner Ós Second Leave of Absence

43. The following day, April 7, 2009, was the last day

Petitioner worked before going back out on a medical leave of

absence. The reason for this second leave of absence was a

recurrence of her back pain. Prior to taking this leave of

absence, Petitioner had not told anyone that her back condition

was bothering her while at the Lehigh Acres store.

44. Since going out on this second leave of absenc e,

P etitioner has not submitted any documentation to Respondent ,

which indicat ed that she is able to return to work in any

capacity . Petitioner did testify that she expects to be

released to return to work in the future. In June 2009,

Petitioner did rece ive documentation from her physician

indicati ng she was able to return to light - duty work, but

Petitioner never submitted this documentation to Respondent and

never requested Respondent to provide her any kind of light - duty

work. Instead, she went to a di fferent doctor , who state d that

she was unable to return to work at that time, and submitted

that documentation to Respondent .

45. Petitioner remains employed by Respondent and is still

on a leave of absence. She received short - term disability

benefits o f 100 percent of her salary for six months after going

out on a leave of absence on April 7, 2009. Following the

expiration of short - term disability benefits , and up to the

present, Petitioner has received long - term disability benefits

equivalent to one - t hird of her monthly salary.

46. Since going out on a leave of absence, Petitioner has

not sought any other employment except to submit an application

for employment to Publix. She did not disclose to Publix that

she had a disability.

D. Alleged Discrimi nation/Retaliation

47. Respondent has an anti - discrimination policy, which

contains a complaint procedure under which employees are

required to report any discrimination that they feel they are

experiencing in the workplace. Petitioner was familiar with

this policy and kn e w how to report perceived discrimination.

48. Petitioner never reporte d any form of discrimination to

Respondent. Therefore, no decisions made by Respondent

regarding PetitionerÓs employment were made in retaliation for

reporting discr imination.

49. The evidence does not show that any decisions made by

Respondent 's officials regarding PetitionerÓs employment were

mad e due to her age, marital status, disability , or any

perceived disability. Petitioner speculates that Respondent's

manag ement may have viewed her personal pharmacy records and saw

that she took anti - depressants and/ or anti - anxiety medication

and, from that, concluded that she suffered from a me n tal

disability . Petitioner introduced no evidence supporting this

theory. Peti tioner admitted that she has no personal knowledge

whether Respondent's management viewed her personal pharmacy

records.

50. Petitioner admits that the conditions she alleges were

discriminatory ( e.g. , the allegedly stressful environment at the

Lehigh Acr es store) were not in any way related to her back

condition. Rather, Petitioner theorizes that the allegedly

stressful environment exacerbated her alleged mental condition.

51. Petitioner failed to prove that she suffered age,

marital status , or disabili ty discrimination.

CONCLUSIONS OF LAW

52. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to Section 120.569

and Subsections 120.57(1) and 760.11(6), Florida Statutes.

53. Section 7 60.10, Florida Statutes, pro vides that:

( 1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of em ployment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any indivi dual of employment

opportunities, or adversely affect any

individualÓs status as an employee, because

of such individualÓs race, color, religion,

sex, national origin, a ge, handicap, or

marital status.

54. Section 760.10, Florida St a tutes, is a remedial

statute and should be liberally construed. Speedway Super

America , LLC v. Dupont , 993 So. 2d 75, 86 (Fla. 5th DCA 2006).

55. Florida courts have long determined that decisions

under the Florida Civil Rights Act of 1992 (FCRA) should be

analyzed using the same framework as cases under Title VII of

the Civil Rights Act of 1964 (Title VII), as amended. Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

56. In Nadler v. Harvey , 2007 U.S. App. LEXIS 20272

(11th Cir. Aug . 24, 2007) , the c ourt stated:

A plaintiff may prove (handicap)

discrimination in two ways, disparate

treatment and a failure to make a reasonable

accommodation . . . Disparate treatment

involves discriminatory animus or intent and

occurs when a disabled individual is trea ted

differently than a non - disabled or less

disabled individual because of his

disability. By contrast , a failure to make

reasonable accommodation claim requires no

animus and occurs when a covered entity

fails to fulfill its affirmative duty to

make reas onable accommodation to the known

physical or mental limitations of an

otherwise qualified applicant or employee

with a disability , without demonstrating

that the accommodation would impose an undue

hardship on the operation of the business.

See also No rris v. University Hospital , Case No. 09 - 6130 , at

paragraph 66 and 67 (DOAH April 12, 2010 , FCHR June 25, 2010 ) .

57. Petitioner did not assert a failure to provide

reasonable accommodation claim in her charge of discrimination,

and, indeed, admitted durin g the hearing that she did not

request a reasonable accommodation for any known physical or

mental limitations. Accordingly, this aspect of the case has

not been considered.

58. In the absence of direct evidence of discriminatory

intent, a complainant ma y attempt to prove discriminatory intent

through circumstantial evidence. Where a complainant attempts

to prove intentional discrimination using circumstantial

evidence, the burden - shifting framework established by the

Supreme Court in McDonnell Douglas C orp. v. Green , 411 U.S. 792

(1973) , and Texa s Dep't of Community Affairs v. Burdine , 450

U.S. 248 (1981) , is applied.

59. First , Petitioner must establish a prima facie case of

handicap or age discrimination under the F CRA . Petitioner must

prove: (1) she was qualified for the position and belongs to a

protected class ( e.g. , is a "qualified individual with a

disability"); (2) she suffered an adverse employment action; and

(3) Respondent treated similarly - situated employees outside the

protected class mo re favorably. See McDonnell Douglas , 411 U.S.

at 802; D avidson v. Iona - McGregor Fire Protection & Rescue

Dist. , 674 So. 2d 858, 860 (Fla. 2d DCA 1996).

60. Petitioner's discrimination claims fail , because she

has not proven all three prongs of the prima facie test.

Petitioner: (1) did show that she was a qualified pharmacist,

but not that she was an otherwise "qualified individual with a

disability " or, if so, that she ever informed Respondent of the

nature of her disability; (2) did not suffer an adver se

employment action; and (3) has not proven that Respondent

treated similarly - situated employees outside of her protected

class more favorably.

E. Petitioner Did Not Suffer an Adverse Employment Action

61. To constitute an adverse employment a ction, "Th e

employer's action must impact the terms, conditions or

privileges of Petitioner's job in a real or demonstrable way",

Crawford v. Carroll , 529 F.3d 961 (11th Cir. 2008); Davis v.

Town of Lake Park , 245 F . 3d 1232, 1239 (11th Cir. 2001). See

also McCaw Ce llular Comm. v . Kwiatek , 763 So. 2d 1063, 1066

(Fla. 4th DCA 1999) (requiring material change in terms and

conditions of employment).

62. When Petitioner transferred to the Lehigh Acres store,

she received a promotion to the position of p harmacy m anager a nd

an increase in salary and benefits. Obviously, th is was not an

adverse employment action. Moreover, although she was counseled

at the new store for performance de ficiencies and customer

complaints, it is well established that negative performance

eval uations, discipline or counseling, standing alone, do not

constitute adverse employment action. Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1261 (11th Cir. 200 1 ) ("To the extent

that . . . Petitioner alleges age and disability discrimination,

the 'disci pline' about which she complains falls short of the

type of 'adverse em ployment action' needed to supp ort such an

allegation . . ."). Petitioner 's counseling had no tangible

impact on terms , conditions , or privileges of her employment.

She was never susp ended, her employment was not terminated , and

her salary and benefits were not reduced. "Where negative

performance evaluations d[o] not result in any effect on

[Petitioner's] employment, [and Respondent] d[oes] not rely on

the evaluations to make any emp loyment decisions," no adverse

employment action occurs. Lucas , 257 F.3d at 1261; see also

Davis , 245 F.3d at 1239 (even "undeserved" negative job

evaluations do not constitute an adverse action where that

criticism has no tangible impact on terms, condit ions, or

privileges of employment); Brown v. Sybase , 287 F. Supp. 2d 1330

(S.D. Fla. 2003) (placing employee on performance improvement

plan does not constitute adverse action); Akins v. Fulton

County, Ga. , 420 F.3d 1293 (11th Cir. 2005) (threat of job los s

is not adverse action).

63. To the extent Petitioner is claiming her promotion to

the Lehigh Acres store , and the counseling that followed,

somehow constituted a constructive discharge, the 11th Circuit

Court stated: "[t]o show constructive discharge, the employee

must prove that his working conditions were so difficult or

unpleasant that a reasonable person in the employee's shoes

would have felt compelled to resign ." Wardwell v. School Bd. o f

Palm Beach County , 786 F.2d 1554, 1557 (11th Cir. 1 9 86 )

(a ffirming judgment notwithstanding the verdict , because

evidence of reprimands, criticism, and supervisor's withdrawal

of support was insufficient to prove constructive discharge).

In evaluating a claim of constructive discharge , courts have

give n us an ob jective standard that does not consider the

Petitioner's subjective feelings. Hipp v. Liberty Nat'l Life

Ins. Co. , 252 F.3d 1208, 1231 (11th Cir. 2001).

64. Petitioner has not proven that her working condition

was intolerable , or so difficult or unpleasa nt that a reasonable

person in her shoes would have felt compelled to resign.

Indeed, the undisputed evidence reflects that she did not resign

and, in fact, still r emains employed by Respondent, albeit on an

extended leave of absence.

65. Moreover , Respo ndent claims that the workload at the

Lehigh Acres Pharmacy was excessive and that the staffing was

insufficient . These assertions were contradicted by the

evidence, which undisputedly showed that staffing at the Lehigh

Acres pharmacy was consistent with , or in excess of, company

guidelines , based on the number of pre script ion s filled per

week , and consistent with staffing before and after Petitioner

worked there. Moreover, the a ssistant p harmacy m anager and

p harmacy t echnician at the Lehigh Acres store b oth testified

that the working condition s in the Lehigh Acres pharmacy are

acceptable and have continued to work there to the present, with

no complaints. The evidence simply fails to establish

c onstructive discharge.

F. Petitioner H as N ot Established Sh e H as a Disability

6 6 . To prevail on a handicap discrimination claim, a

complainant must prove that, at the time in quest ion , s he had a

"handicap." When a charge of discrimination is based on a

handicap, the FCRA ha s construed that term in accordance wit h

the definition of "disability" under the Americans with

Disabilities Act (ADA). Razner v. Wellington Reg'l Med. Ctr.,

Inc. , 837 So. 2d 437 (Fla. 4th DCA 2002). In relevant part, the

ADA defines "disability" as a physical or mental impairment that

subst antially limits one or more major life activities, a record

of such an impairment, or having been regarded as having such an

impairment. See 42 U.S.C. § 12102(1).

67. "The term 'substantially limits' means '[u]nable to

perform to major life activity that the average person in the

general population can perform' or is [s] s ignificantly

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 and duration un der which the

average person in the general population can perform that same

major life activity." Lenard v. A.L.P.H.A. "A Beginning" , Inc. ,

945 So. 2d 618 , 621 (Fla. 2d DCA 2006).

68. "Factors to consider when determining whether an

individual is 'substa ntially 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 impair ment'"; Wimberly v. Securities Tech.

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

6 9 . "[A] temporary impairment, such as recuperation from

surgery, will generally not qualify as a disability under ADA.

An impairment simply cannot be a substantia l limitation on a

major life activity if it is expected to improve in a relatively

short period of time." Pollard v. High's of Baltimore, Inc. ,

281 F.3d 462, 468 (4th Cir. 2002) (citation omitted); see also

Rinehimer v. Cemcolift , Inc. , 292 F.3d 375, 380 (3d Cir. 2002)

(a temporary, non - chronic impairment of short duration is not a

disability covered by the ADA); Danyluk - Coyle v. St. Mary's Med.

Ctr. , 2001 U.S. Dist. LEXIS 24574 *5 (E.D. Pa. Apr . 5, 2001)

("Petitioner herself alleges that her impairment be gan in August

of 1999 when she fractured her ankle and began a period of

recuperation. Only four months later . . . Petitioner was

authorized by her doctor to return to work . . . 'without any

restrictions.' During the four - month period, Petitioner elect ed

to take leave . . . and received Short Term Disability benefits.

As Petitioner offers no substantial or persuasive evidence that

Petitioner 's fractured ankle was anything more than a temporary,

non - chronic impairment, we find , as a matter of law , Petit ioner

was not actually disabled within the meaning of the ADA.") .

70 . Petitioner has presented no credible evidence that she

has a physical or mental impairment that substantially limits

one or more major life activities. Nor is there any evidence

that s he had a record of, or was regarded as having, such an

impairment. Indeed, the only medical condition of which

Petitioner informed Respondent of was the back surgery for which

she took a leave of absence. However, Petitioner's back

condition was temporar y; she went out on leave of absence in

December 2008 and was authorized by her doctor to return to work

less than four months later, on March 16, 2009, without any

restrictions. She went out again in April 2009 and has

testified that she intends to return to work. T his is not a

disability for purposes of the FCRA.

71 . The only evidence, other than Petitioner's own

testimony, in support of her claim that she has a mental health

disability was the testimony of Everett Tessmer , Ph.D.

(Tessmer) . He was qual ified as an expert only in the area of

rehabilitation counseling. Tessmer is not a physician or

psychiatrist and admitted he was not qualified to diagnose

medical or mental conditions or disabilities. Moreover, Tessmer

did not perform a single phy sical o r mental health examination

of Petitioner and relied exclusively on documents hand - picked by

Petitioner, without performing any independent research , or

asking for additional relevant documents. Accordingly,

Tessmer's testimony , with respect to whether Pe titioner has a

disability or impairment , is not credible.

G. Petitioner Never Informed Respondent t hat She h ad a

Disability

7 2 . Petitioner admits that the conditions she alleges were

discriminatory ( e.g. , the allegedly stressful environment at the

Lehig h Acres store) were not in any way related to her back

condition. Rather, the theory that has evolved during these

proceedings is that she was discriminated against because she

has a mental disability ( e.g. , she allegedly was intentionally

promoted to the p harmacy m anager position , because Respondent

knew the allegedly stressful environment at the Lehigh Acres

store would exacerbate an alleged mental condition). However ,

Petitioner admits that she never informed Respondent and never

submitted any document s re f lecting that she suffered from a

mental condition. Petitioner also never informed Respondent

that her temporary back pain was a disability. At most,

Petitioner claims she told Fagan that "she does not do well

under stress" and that Fagan should have deduced from this

statement that she suffered from a mental disability.

73. This theory was rejected in the similar case of Keeler

v. Florida Dep't of Health , 324 Fed. Appx. 850 (11th Cir. 2009),

in which the p etitioner admitted that she did not disclose her

mental disabilities to her supervisors until after the alleged

adverse employment action had been taken. Nonetheless, the

p etitioner argued that the r espondent should have known of her

mental disability , because she took lots of notes, cried while

sp eaking to her supervisor about her transfer, and advise d her

supervisor that her position was "too stressful" and that the

"stress and volume" of work was "overwhelming." The court ruled

"[t]his behavior was not . . . sufficient to put the

[Respondent] on notice that [ the Petitioner ] was disabled

because it in no way suggested that [ the Petitioner ] was

substantially limited in any major life activity." Id. The

court concluded that " [b]ecause the [Respondent] did not have

sufficient knowledge of Petitione r's mental impairments, the

district court correctly concluded that the Respondent could not

be liable [under the ADA]." See also Cordoba v. Dillard's Inc. ,

419 F.3d 1169, 1186 (11th Cir. 2005) (holding that, in

discriminatory discharge case, employer cou ld not have fired the

employee , "because of" a disability that she kn e w nothing

about).

7 4 . Here, Petitioner never informed anyone that she

suffered from a mental condition or any permanent disability,

and the uncontradicted evidence reflects that Respond ent's

m anagement had no independent knowledge or perception of any

such condition.

H. Petitioner is not a "Qualified Individual w ith a Disability "

7 5 . To state a prima facie claim of handicap

discrimination under the FCRA, Petitioner also must prove she is

a "qualified individual with a disability . " A "qualified

individual with a disability" under the FCRA is an "individual

with a disability who, with or without reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds or desires." 42 U.S.C. § 1211(8);

29 C.F.R. § 1630.2(m); Holbrook v. City of Alpharetta, Ga. ,

112 F.3d 1522 (11th Cir. 1997). "Essential functions" are the

fundamental job duties of the position and do not include

marginal functio ns of the position. 2 9 C. F . R . § 1630.2(n).

7 6 . Petitioner testified that, due to her back condition,

she was unable to perform the essential functions of her job

after she went on leave. " If a plaintiff is unable to perform

the essential functions of th e job, the "Plaintiff" has the

burden of proving that reasonable accommodations were available

and that with these accommodations he could perform the

essential functions of the job." Reed v. Heil Co. , 206 F.3d

1055, 1062 (11th Cir. 2000). Yet, Petitione r never asked for

any reasonable accommodation for her back pain. Where an

employee fails to identify a reasonable accommodation, the

employer has no duty to investigate whether one exists. Earl v.

Mervyn's, Inc. , 207 F.3d 1361, 1365 (11th Cir. 2000).

I. Petitioner Did Not Prove t hat Similarly - Situated Employees

Outside t he Protected Class Were Treated More Favorably

7 7 . Petitioner also did not establish that similarly -

situated employees outside her protected class were treated more

favorabl y . "In ord er to meet the comparability requirement a

plaintiff is required to show that [s]he is similarly situated

in all relevant aspects to the non - minority employee." Silvera

v. Orange County Sch. Bd. , 244 F.3d 1253, 1259 (11th Cir.),

cert. denied , 534 U.S. 976 (2001). In other words, Petitioner

must be "matched with a person or person s who have very similar

job - related characteristics and who are in a similar situation."

MacPherson v. Univ. of Montevallo , 922 F.2d 766, 776 (11th Cir.

1991).

7 8 . Petitioner ha s testif ied that she fe lt that she ,

rather than Fung, should have been transferred to the Estero

store after the closure of the Daniels Parkway store. However,

there was no evidence presented during the hearing regarding

Fung's age or disability status. Moreover, to the extent ,

Petitioner is now claiming that Gagliardo is a comparator .

Petition er also failed to present any evidence t o Gagliardo's

age or disability status. Therefore, Petitioner has not proven

that Fung or Gagliardo are employees outside Petitioner's

protected class.

79. Regardless, neither Fung nor Gagliardo is similarly -

situated. Fung and Petitioner held different positions , as he

was Petitioner's manager at the Daniels Parkway store. At the

time the Estero position needed to be fille d, Petitioner was on

leave for back surgery and had not yet informed Respondent when

she was going to return from leave. In contrast, Fung was

available to fill the position at the time, whereas Petitioner

was not, and there were no open pharmacy position s at the Estero

store when Petitioner returned from leave. Moreover, Gagliardo

held the a ssistant p harmacy m an a ger position at the Lehigh Acres

store , a position that Petitioner did not request . Further,

Petitioner seems to be arguing that , because Gagli ardo was

married , she received more favorable treatment. However, there

is no evidence that Gagliardo received more favorable treatment

in any way .

J. Petitioner Failed to Establish a Prima Facie Retaliation

Claim

80 . In addition to accusing Respondent of age and

disability discrimination, Petitioner alleged that Respondent

engaged in retaliation prohibited by Subsection 760.10(7),

Florida Statutes.

81 . Subsection 760.10( 7 ), Florida Statutes, provides, in

pertinent part:

(7) It is an unlawful employme nt practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or b ecause that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

82 . Petitioner's retaliation claim under the FCRA must

also be appropriately analyzed using the same framework as that

used in analyzing retaliation claims under Title VII of the

Federal Act . See , e. g . , Sanders v. Mayer's Jewelers, Inc. , 942

F. Supp. 571, 573 (S.D. Fla. 1996). An employee can establish

that she suffered retaliation under FCRA by proving : (1) she

engaged in an activity protected by the FCRA; (2) she suffered

an adverse employment action; and (3) there was a causal

connection between the protected activity and the adverse

employment action. Pennington v. City of Huntsville , 261 F.3d

1262 , 1266 (11th Cir. 2001); Russell v. KSL Hotel Corp. , 887 So.

2d 372, 379 (Fla . 3d DCA 2004).

K. Petitioner Did Not Engage in Protected Conduct

83 . T o establish a violation of Subsection 760.10(7),

Florida Statutes, a complainant must show, as a threshol d

matter, that she engage d in activity protected by the FCRA (by

having "opposed any practice , which is an unlawful employment

practice under this section , " or by having "made a charge,

testified, assisted, or participated in any manner in an

investigation , proceeding, or hearing under this section").

"Merely complaining in general terms of discrimination or

harassment, without indicating a connection to a pro te cted class

or providing facts sufficient to create that inference, is

insufficient [to constitut e protected activity under FCRA ]."

Tomanovich v. City of Indianapolis , 457 F.3d 656, 663 (7th Cir.

2006); see also Cavazos v. Springer , 2008 U.S. Dist. LEXIS

58317, at *25 - 26 (S.D. Tex . Aug. 1, 2008) ("in order for an

employee's complaint to a supervisor to constitute protected

activity necessary to establish a prim a facie case of

retaliation under the opposition clause of Section 2000e - 3(a),

the complaint must concern , and be in opposition to , conduct

made unlawful by Title VII").

84 . Petitioner admitted at the hearing that she never

complained of discrimination to anyone in Respondent 's

management , despite the fact that she was aware of Respondent

discrimination policy and knew how to report discrimination, if

it had occurred. Absent evidence that Petit ioner opposed any

discrimination, she has failed to establish a prima facie case

in retaliation.

L. Petitioner Did Not Suffer a n Adverse Employment Action

85 . In addition, a complainant alleging retaliation in the

FCRA must also show that she suffered an "adverse employment

action" and that there was "a ca us al connection between the

participation in the protected expression and the adverse

action." Russell , 887 So. 2d at 379. As discussed above,

supra , Petitioner did not suffer an adverse employment act ion.

M. Petitioner has F ailed to P rove C ausation

86 . Having admitted that she did not engage in protected

activity and having presented no evidence demonstrating that she

suffered adverse employment actions , Petitioner is unable to

prove the third prong of a prima facie case of retaliation : a

causal connection between the participation in the protected

expression and the adverse action.

87 . During the hearing, Petitioner call ed Tessmer , an

expert on a variety of topics, one of which was potential

damage s . To the extent Tessmer testified with respect to

alleged emotional distress or related damages, this tribunal h as

already ruled in limine that neither DOAH nor the FCHR ha s

authority to a ward compensatory or punitive damages. Nor is

such relief availab le under the applicable provision of the

FCRA. See also §§ 760.10 and 760.11(6), Fla . Stat . (available

relief does not include compensatory or punitive damages) ; City

of Miami v. Wellman , 976 So. 2d 22, 27 (Fla. 3d DCA 2008) ("non -

quantifiable damages . . . are uniquely within the jurisdiction

of the courts"); Southern Bell Tel. & Telegraph Co. v. Mobile

Am. Corp. , 291 So. 2d 199 (Fla . 1974) (an administrative agency

(as opposed to a court) has no authority to a ward money

damages).

88 . To the extent Tessm er testified with respect to

alleged back pay damages, Tessmer did not take into

consideration the fact that Petitioner's employment has not been

terminated , and, therefore, Petitioner is not entitled to back

pay. Tessmer also failed to consider Petitione r 's receipt of

disability benefits and her failure to otherwise mitigate back

pay damages.

89. It is well established that Petitioner has a duty to

mitigate back pay damages. Ford Motor Co. v . EEOC , 458 U.S. 219

231 N.15 (1982) (stating the general rule that , " it is incumbent

upon the [person wronged] to use such means as are reasonable

under the circumstances to avoid or minimize the damages. The

person wronged cannot recover for any item of damage which could

thus have been avoided."). As a result, Pe titioner fa iled to

mitigate and , therefore, is not entitled to back pay damages.

90 . Even if Petitioner had been unlawfully terminated, if

a petitioner is unable to mitigate back pay damages , due to a

disability not caused by a discriminatory employer tha t

disability cuts off back pay liability. Latham v. Dep't of

Children & Page Youth Servs. , 172 F.3d 786, 794 (11th Cir. 1999)

("Courts exclude periods where a plaintiff is unavaila b le to

work, s uch as periods of disability, from the back pay award.") .

Pe titioner testified, and has represented to Respondent's

disability carrier, that she has been unable to work due to back

and leg pain. Accordingly, back pay is not available for the

entire period of time since she went out on her second leave of

absence. Moreover, Respondent would be entitled to a set - off

against any back pay liability for all disability benefits paid

to Petitioner w hile on a leave of absence.

91 . Petitioner faile d to prove a prima facie case of

handicap/disability or age discrimination under the FCRA . I n

that she failed to show : that she suffered an adverse

employment action, that she has a disability, that she never

informed Respondent that she had a disability, that she is a

"qualified individual with a disability" under the F CRA , or that

Respondent treated similarly - situated employees outside of her

protected class more favorably.

92 . Petitioner failed t o prove a prima faci e case of

retaliation under the FCRA in that: she failed to show that she

engaged in any statutorily - protected conduct, that she suffered

an adverse employment action , or that there was a causal

connection between protected conduct and the adverse action.

RECOMMENDATION

Based upon the above F indings of F act and C onclusions of

L aw, it is

RECOMMENDED that the Flori da Commission on Human Relations

enter a final order dismissing Petitioner's petition for age and

disability discrimination and retaliation under the Florida

Civil Rights Act.

DONE AND ENTERED this 2 9 th day of October , 2 010 , in

Tallahassee, Leon County, Fl orida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of October , 20 10 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2009), unless otherwise indicated.

COPIES FURNISHED :

Geralyn Farrell Noonan , Esquire

Law Office of Geralyn F. Noonan

8250 College Parkway, Suite 202 - B

Post Office Box 07338

Fort Myers, Florida 33919

Peter W. Zinober, Esquire

Jay P. Lechner, Esquire

Greenberg Traurig, P.A.

625 East Twiggs Street

Tampa, Florida 33602

Denise Cra wford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOT ICE 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.