09-002441 Cindy Burgholzer vs. Costco Wholesale Corp. Status: Closed Recommended Order on Tuesday, November 24, 2009.

Summary: Petitioner did not prove that Respondent discriminated against her based on an alleged disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CINDY BURGHOLZER, )

)

Petitioner, )

)

vs. ) Case Nos. 09-0999

) 09-2441

COSTCO WHOLESALE CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in these consolidated cases

on August 26 and 27, 2009, in Jacksonville, Florida, before

Suzanne F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Heather M. Collins, Esquire

Hnin N. Kaing, Esquire

Henrichsen Siegel, PLLC

1648 Osceola Street

Jacksonville, Florida 32204

For Respondent: John T. Murray, Esquire

Kathleen E. Mones, Esquire

Seyfarth Shaw, LLP

1545 Peachtree Street, Northeast

Suite 700

Atlanta, Georgia 30309-2401

STATEMENT OF THE ISSUES

The issues are whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based

on her disability and by retaliating against her, and if so,

what, if any, relief is Petitioner entitled to receive.

PRELIMINARY STATEMENT

On August 13, 2008, Petitioner Cindy Burgholzer

(Petitioner) filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent Costco Wholesale Corp. (Respondent) had discriminated

against Petitioner by failing to make reasonable accommodations

for Petitioner's disability and by placing Petitioner on an

indefinite medical leave of absence in retaliation for her

requests for accommodations.

On November 10, 2008, Petitioner filed a second Charge of

Discrimination/Amended Charge with FCHR, alleging that

Respondent retaliated against Petitioner by refusing to allow

her to return to work and forcing her to apply for long-term

disability.

On January 14, 2009, FCHR issued a Determination: No Cause

on Petitioner's original charge. Petitioner filed a Petition

for Relief on that charge on February 18, 2009. FCHR referred

the petition to the Division of Administrative Hearings (DOAH)

on February 20, 2009. The case was assigned to the undersigned

as DOAH Case No. 09-0999.

On February 27, 2009, the parties requested additional time

in DOAH Case No. 09-0999 to respond to the Initial Order. The

undersigned issued an Order Granting Extension of Time on

March 2, 2009.

A Notice of Hearing dated March 10, 2009, scheduled DOAH

Case No. 09-0999 for hearing by video teleconference on May 6,

2009.

On March 31, 2009, FCHR issued a Determination: No Cause on

Petitioner's second/amended charge.

On April 10, 2009, the parties filed an Agreed Protective

Order in DOAH Case No. 09-0999. On April 14, 2009, the

undersigned issued a Protective Order incorporating the parties'

agreement.

On April 15, 2009, the parties filed a Joint Motion to Stay

Discovery and the May 6, 2009, Hearing in DOAH Case No. 09-0999.

The motion sought a continuance of the hearing to allow

Petitioner time to determine whether she would file a second

petition. On April 16, 2009, the undersigned issued an Order

Canceling Hearing and Placing Case in Abeyance.

On May 5, 2009, Petitioner filed a Petition for Relief on

her second/amended charge.

FCHR referred Petitioner's second/amended petition to DOAH

on May 11, 2009. The second case was assigned to Administrative

Law Judge E.J. Davis as DOAH Case No. 09-2441.

On May 18, 2009, the parties filed a Status Report and

Motion to Consolidate DOAH Case Nos. 09-0999 and 09-2441. On

May 21, 2009, the undersigned issued an Order of Consolidation.

The parties filed an Amended Status Report on June 10,

2009. According to the report, the parties requested a two-day

live hearing on August 26 and 27, 2009, in Jacksonville,

Florida. Because there were no available hearing rooms on those

dates, the parties agreed to make arrangements for the location

of the hearing.

Pursuant to the agreement of the parties, the undersigned

issued an Order Rescheduling Hearing dated July 22, 2009. The

Order scheduled the hearing for August 26 and 27, 2009.

When the hearing commenced, the parties offered ten Joint

Exhibits, JE1-JE10, which were accepted as evidence.

Petitioner testified on her own behalf and presented the

testimony of four additional witnesses. Petitioner also

presented ten specific pages of the deposition testimony of one

witness in lieu of live testimony. Respondent's objections on

the record to the deposition testimony are hereby overruled.

Petitioner offered four Exhibits, P1-P4, which were accepted as

evidence.

Respondent presented the testimony of three witnesses.

Respondent offered one Exhibit, R1, which was accepted as

evidence.

The Transcript was filed on September 21, 2009. The

parties subsequently requested two extensions of time to file

their proposed recommended orders. On October 22, 2009, the

parties timely filed their proposed findings of fact and

conclusions of law. All references to Florida Statutes are to

the 2007 Codification, unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is Respondent's former employee who began

working for Respondent in 1993. Petitioner was most recently

assigned to the warehouse in eastern Jacksonville, Florida,

where she worked from October 2000 until September 2007.

2. When she first transferred to the warehouse, Petitioner

Petitioner was responsible for shipping out returned merchandise

to vendors and shipping salvaged items to the salvage companies.

3. In 2004, Petitioner transferred to the Receiving Clerk

position. Petitioner remained in the Receiving Clerk position

until September 19, 2007, when she began a medical leave of

absence.

4. Jason Zook became the manager of the warehouse in

May 2005. As the Warehouse Manager, Mr. Zook is responsible for

overseeing the entire warehouse, including the Receiving

Department. Mr. Zook is familiar with the requirements of the

Receiving Clerk position because he previously worked in that

position at another warehouse.

5. Michael Sinanian is one of the Assistant Warehouse

Managers. Mr. Sinanian transferred to the warehouse as an

Assistant Warehouse Manager in 2002. Prior to becoming an

Assistant Warehouse Manager, Mr. Sinanian worked in the

Receiving Department at other warehouses for a little over two

and a half years. During that time, Mr. Sinanian worked as a

Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a

Receiving Clerk.

6. The Receiving Department is located at the back of the

warehouse. The warehouse is approximately the length of a

football field from front to back.

7. At all times material here, the Receiving Department at

the warehouse had four positions: Receiving Manager, Receiving

Clerk, Receiving Secretary, and Forklift Driver. In 2007,

Deborah Lenox was the Receiving Manager, an employee named Sonya

was the Receiving Secretary, Petitioner was the Receiving Clerk,

and an employee named Valdean was the Forklift Driver.

8. The Receiving Secretary and the Receiving Clerk have

different job responsibilities. The Receiving Secretary is

responsible for answering the phone, making vendor appointments,

logging the appointments, dealing with paperwork, creating and

printing out receiving tags, and logging shipment information

into Respondent's computer system.

9. The Receiving Clerk is responsible for counting and

checking merchandise against freight bills, opening boxes and

cartons with a box knife to verify and count the product,

stacking bed-loaded merchandise or merchandise from damaged or

unacceptable pallets onto approved pallets, separating mixed

items from pallets for checking, wrapping pallets with plastic

wrap in preparation for movement onto the warehouse floor,

loading merchandise and emptying pallets onto trucks using a

manual pallet jack or hand cart, and cleaning and clearing the

receiving dock of any debris and trip hazards. Each of these

essential job functions requires standing, which is consistent

with the job analysis for this position.

10. Respondent has written job analyses, which identify

the essential functions of each job and are used to assist the

Company, the employee, and the employee’s doctor in determining

if the employee can perform the essential functions of his/her

job with or without reasonable accommodations. Respondent does

not remove or eliminate essential job functions, but will

sometimes modify the manner in which the function is to be

completed. Respondent will not displace another employee from

his position in order to accommodate a disabled employee.

11. A pallet of merchandise can be as much as 60 inches

high. A typical pallet coming in the warehouse is a 60-inch

cube.

12. An electric pallet jack is a double pallet jack and is

approximately 18 feet long. In order to operate an electric

pallet jack, an employee has to stand and lean in the direction

that she wants the machine to go and turn the handle. There is

no seat on an electric pallet jack.

13. Petitioner’s original foot condition was due to

osteomyelitis, an infection of the bone. Between 1998 and 1999,

Petitioner had four surgeries to address her foot condition. A

surgeon placed an artificial plastic bone in Petitioner's foot

in July 1999.

14. In September 1999, Petitioner returned to work with

medical restrictions that prevented her from standing for long

periods of time and from lifting more than 25 or 35 pounds. At

some point thereafter, while Petitioner was working at one of

Respondent’s warehouses in Memphis, Tennessee, her podiatrist

changed her restrictions to add limitations against cashiering,

stocking, and inventory.

15. Petitioner understood that the reason for these

additional restrictions was that she was not able to do these

tasks to the extent they required her to stand for a prolonged

period of time. Petitioner’s medical notes stated that she was

able to use her discretion as to her limitations, which

Petitioner understood to mean that she could sit and rest her

foot as needed. Each of these restrictions was permanent.

16. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware

that Petitioner had medical restrictions relating to her foot

condition that prevented her from standing for prolonged periods

of time. They were aware that Respondent had agreed to allow

Petitioner to sit down when she felt it was necessary, without

first having to ask for permission.

17. Despite her restrictions, Petitioner is able to ride

her bike, go the grocery store, and work out at the gym. During

the relevant time period, Petitioner worked out at the gym

approximately four days a week. Her work-out routine included

warming up on an elliptical machine for approximately 15-to-20

minutes or walking approximately one mile on the treadmill and

using a leg press machine.

18. Respondent performs inventory twice a year. It takes

an inventory at all warehouses in February and August.

19. The inventory process begins on Friday night and

continues until the following Wednesday. The back-stock is

counted on Friday night after closing and the stock on the sales

floor is counted on Saturday night after closing. The post-

audit process begins on Sunday morning before the warehouse

opens to its members and continues on Monday morning.

20. The Saturday night inventory count is more labor-

intensive and is considered “all hands on deck.” The Saturday

night inventory requires the staff to count approximately $9

million worth of inventory during roughly a five-hour period.

21. On Saturday, Respondent assigns two employees to count

the items in each aisle at the same time. The employees double-

check each other’s counts. If there is a discrepancy between

the employees’ counts, both will recount the items until their

counts agree.

22. If there are discrepancies after the Saturday counts

between the physical counts and the computer records, the items

are recounted during the Sunday post-audit. If variances still

remain after the three counts, then the variances are researched

during the Monday post-audit.

23. For the Monday post-audit, Respondent only focuses on

the larger-quantity, higher-dollar discrepancies. When

researching the discrepancies from the variance reports,

employees have to perform the following tasks: (a) count items

on the floor or up in the steel racks; (b) verify bin tags;

(c) research billing, shipment, and return-to-vendor records on

Respondent’s computer system; and (d) check the receiving

paperwork in an effort to locate and correct the source of the

discrepancy.

24. Some items will have been sold between the Saturday

night count and the Monday post-audit process. Therefore, the

Monday post-audit team also may have to research the sales

history on a computer and back out the Sunday sales from the

total count.

25. The variance reports reflect the aisle where the item

is located, the item count from the inventory count, the

computer system count, and the amount of the variance.

Employees are typically assigned to work in one department of

the warehouse, which may require them to walk from aisle to

aisle within that department.

26. In order to assist the Monday post-audit team, the

team is permitted to use computers throughout the warehouse.

Employees can sit down at the computers when they are

researching the variances in item counts. It can take anywhere

from 15-to-30 minutes to research one item.

27. The duties involved in the inventory post-audit

process are similar to the job duties of the Receiving Clerk

position. However, the post-audit does not require as much

standing and is less physically demanding because the focus

during post-audit is on researching the sources of the

variances, rather than simply receiving, counting, and checking-

in shipments.

28. In selecting employees to work on the Monday post-

audit team, Respondent prefers to schedule people who are

familiar with Respondent’s return-to-vendor and receiving

processes. Respondent also selects employees who are

knowledgeable about Respondent’s AS-400 computer system.

29. In February 2007, Petitioner worked the Saturday night

inventory. During that time, she counted the bread then worked

at the control desk. Petitioner's job at the control desk was

to key-in inventory count sheets into Respondent’s computer

system. Petitioner did not view this assignment as inconsistent

with her restrictions against working inventory because she was

seated for most of the time.

30. In August 2007, Mr. Sinanian was responsible for the

post-audit processes, including the scheduling of employees to

work post-audit. Due to the requirements of post-audit,

Mr. Sinanian selected people who, like Petitioner, were familiar

with Respondent’s AS-400 computer system. Approximately 20

employees worked during the Monday post-audit.

31. Mr. Sinanian and Ms. Lenox knew that Petitioner could

use her discretion to sit down whenever she felt it was

necessary. They had no reason to believe that the post-audit

process was inconsistent with Petitioner’s medical restrictions.

Therefore, she was selected to work the Monday post-audit.

32. On Saturday, August 25, 2007, Petitioner was again

assigned to count bread and then assist with keying inventory

count sheets into the system. Petitioner was able to sit down

while she was working at the control desk keying the inventory

count sheets. Petitioner did not consider her Saturday

assignments inconsistent with her restrictions.

33. Petitioner did not work or perform any inventory or

post-audit, inventory-related duties on Sunday, August 26, 2007.

34. On Monday, August 27, 2007, the post-audit process

lasted from approximately 5:00 a.m. until 10:00 a.m.

Petitioner’s shift began at 5:00 a.m.

35. After Petitioner clocked in, she reported to the

control desk, where Mr. Sinanian assigned her to check variances

for approximately 6 items in Department 14, the sundries

department. The sundries department runs along the back right

side of the building near the Receiving Department.

36. The sundries department includes items like paper

towels, cleaning chemicals, laundry detergent, water, juice, and

soda. Petitioner was assigned to research variances between the

physical counts and the computer system’s counts for Swiffers,

dog bones, dog beds, water, soda, and paper towels.

37. During the August 2007 post-audit process there were

at least 18 computers for the employees to use. The computers

were located in the Receiving Department, the front office, at

the membership desk, and at the podium on the front-end.

Employees were free to use any available computer and were able

to sit down at most of the computers while researching items.

38. Petitioner never had to wait to use a computer.

Petitioner went to whichever computer was closest to her at the

time to verify items.

39. After she finished researching all of the items on her

variance sheet, Petitioner, like all of the other employees who

worked post-audit, met with Mr. Sinanian at the control desk at

the front of the store to explain her findings. There was a

chair at the control desk for Petitioner to sit in while meeting

with Sinanian.

40. The process of meeting with Mr. Sinanian took anywhere

from 10-to-30 minutes. Other than discussing her assignment for

the day and the post-audit research results, Mr. Sinanian did

not have any other discussions with Petitioner on August 27,

2007.

41. Petitioner was able to use her discretion to sit down

during post-audit. She was never told that she could not sit

down nor was she reprimanded for sitting down. Petitioner

admits that she used her discretion to sit down at least twice

during post-audit and to kneel down a couple of times.

Petitioner also took a 15-minute break during the post-audit

process, during which she sat down.

42. After Petitioner finished working post-audit at

approximately 10:00 a.m. on August 27, 2007, she returned to the

Receiving Department, but left shortly thereafter to take her

lunch break. Petitioner’s lunch break lasted for approximately

a half-hour. Petitioner walked from the back of the warehouse,

where the Receiving Department is located, to the front of the

warehouse, where the break room is located, to take her lunch

and walked all the way back after the end of her break to return

to work.

43. After returning from lunch, Petitioner began working

on the UPS shipment. It was a busy day in the Receiving

Department, as the UPS shipment had arrived with approximately

72 packages stacked on one pallet that was taller than

Petitioner. Because Petitioner felt unable to stand, she could

not check in the entire UPS shipment. As a result, Petitioner

took it upon herself to take the UPS invoices and input the

invoices into Respondent’s computer system, which is one of the

Receiving Secretary’s job responsibilities.

44. At some point thereafter, Ms. Lenox asked Petitioner

why she was logging in items into Respondent’s computer system,

rather than receiving the UPS shipment. Petitioner told

Ms. Lenox that her foot was hurting and that she could not

stand. Ms. Lenox told Petitioner to take her break and, when

she returned from break, they would see how Petitioner’s foot

was feeling.

45. Petitioner walked to the front of the warehouse, where

she took her second 15-minute break in the break room.

Petitioner was able to sit with her foot up during her break.

46. After returning from her break, Petitioner reported to

the Receiving Department and told Ms. Lenox that she did not

feel she could not stand any longer that day. Petitioner asked

if there was something she could do other than her receiving

duties.

47. Ms. Lenox told Petitioner that if she could not stand,

then Ms. Lenox did not have any more work for her and told her

that she should go home. Accordingly, Petitioner went home

approximately one hour before her shift ended.

48. Petitioner reported to work the following day,

Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire

shift. At some point after her shift started that day,

Petitioner told Mr. Sinanian that Ms. Lenox would not allow her

to take a break during post-audit. Petitioner also told

Mr. Sinanian that her foot was swollen and hurting. She took

off her shoe to show him her foot.

49. Mr. Sinanian did not see anything unusual about

Petitioner’s foot. He did not see any swelling, graying, or a

red bump. From the conversation with Petitioner, Mr. Sinanian

did not understand that her foot was hurting due to a new

injury. Therefore, Mr. Sinanian did not fill out an incident

report. Petitioner’s and Mr. Sinanian’s conversation lasted

approximately two minutes.

50. At some point after speaking with Petitioner,

Mr. Sinanian asked Ms. Lenox if, at any point during post-audit,

she told Petitioner that Petitioner could not take a break.

Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no

reason to doubt Ms. Lenox.

51. Petitioner continued to work her job as Receiving

Clerk after August 28, 2007. She continued to use her

discretion to rest her foot on an as-needed basis. When

possible she would sit in a chair to work. She used the

electric pallet, letting her foot hang off the platform.

52. Petitioner waited three weeks to seek medical

treatment from her podiatrist in West Palm Beach, Florida. She

finally saw her doctor on Monday, September 17, 2007.

53. At her appointment, Petitioner’s podiatrist gave her a

note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE

TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY

FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.”

54. Petitioner understood that her podiatrist wanted her

to stay off her foot for a few weeks and to be in a sedentary

position during that time. Petitioner also understood that

these temporary restrictions were more limiting than her prior

permanent restrictions.

55. Petitioner reported to work on September 18, 2007, and

told Ms. Lenox that her doctor did not want her standing.

Ms. Lenox told Petitioner that they would need to speak with

Mr. Zook about her restrictions when he arrived at work that

day.

56. In the meantime, Ms. Lenox permitted Petitioner to sit

down and work on summary sheets. After returning from lunch,

Petitioner met with Mr. Zook about her new temporary

restrictions. The meeting lasted about an hour or more.

57. Based on Mr. Zook’s prior experience working as a

Receiving Clerk, his understanding of the essential job

functions of that position, and Petitioner’s podiatrist’s

statement that she needed to be off her foot for three weeks, he

did not believe that Petitioner could perform the essential

functions of that position without violating her doctor’s

restrictions. Mr. Zook, nevertheless, asked Petitioner how she

thought she could do her job from a seated position. Petitioner

did not have any suggestions.

58. There were no available sedentary positions in the

warehouse at that time that could have accommodated Petitioner’s

no-standing restrictions. As a result, Mr. Zook explained to

Petitioner that based on her doctor’s restrictions, which

required her to be in a sedentary position, he did not have any

work for her at that time.

59. Mr. Zook did not believe that Petitioner’s temporary

no-standing restrictions prevented her from working in any

capacity. Mr. Zook explained to Petitioner that she could take

a leave of absence and return to work after her temporary

restrictions expired. Because Petitioner’s restrictions were

temporary, Mr. Zook did not contact Respondent’s Human Resources

Department to schedule a job accommodation meeting.

60. Despite Mr. Zook’s statement, Petitioner returned to

work the following day and performed some work for a period of

time. After Mr. Zook arrived at the warehouse, he went back to

the Receiving Department and asked Petitioner why she was at

work. Mr. Zook reminded Petitioner that he did not have any

work for her to do at that time and that he could not allow her

to work in violation of her doctor’s restrictions.

61. After speaking with Mr. Zook, Petitioner clocked out,

signed some paperwork, and left the building. Petitioner did

not return to work after September 19, 2007.

62. On October 15, 2007, Petitioner saw her podiatrist

again. Petitioner’s podiatrist extended her temporary no-

standing restriction for another six weeks. Petitioner

understood, however, that her no-standing restrictions remained

temporary at that time.

63. Petitioner applied for and received short-term

disability (“STD”) benefits beginning around the end of

September 2007. Petitioner used paid time off until the STD

period benefits began.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 760.11, Florida

Statutes (2009).

65. Section 760.10(1), Florida Statutes, states as follows

in pertinent part:

(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 employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment

practice for an employer . . . to

discriminate against any person because that

person has opposed any practice which is an

unlawful employment practice under this

section, or because that person has made a

charge, testified, assisted, or participated

in any manner in an investigation

proceeding, or hearing under this section.

66. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes (2008), as amended, was

patterned after Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000 et seq. Disability discrimination claims brought

pursuant to the FCRA are analyzed under the same framework as

claims brought pursuant to the Americans with Disabilities Act

of 1990, as amended, 42 U.S.C. Section 12101 et seq. (ADA). See

Sicilia v. United Parcel Srvs., Inc. , 279 Fed. App'x 936, 938

(11th Cir. 2008).

67. Petitioner has limited the relevant time period at

issue here to events occurring between August 8, 2007, and

October 15, 2007. Therefore, Petitioner has the burden of

proving by a preponderance of the evidence that Respondent

discriminated against her based on her alleged disability and

retaliated against her by placing her on medical leave during

that period of time. See Florida Dep't of Transportation v.

J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).

68. Absent direct or statistical evidence of

discrimination, neither of which was offered here, claims of

discrimination and retaliation are evaluated by using the test

for circumstantial evidence, as set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973). In McDonnell Douglas , 411

U.S. at 792, and Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248, 253 (1981), the United States Supreme Court first

articulated the framework for use by trial courts in evaluating

the merits of discrimination claims of disparate treatment based

upon circumstantial evidence, including the basic allocation of

burdens and order of presentation of proof.

69. Under this analytical framework, the employee bears

the initial burden of establishing a prima facie case of

unlawful discrimination. See Burdine , 450 U.S. at 253. Only if

the employee establishes a prima facie case does the burden of

production shift to the employer to articulate a credible,

legitimate, non-discriminatory explanation for its decision.

See Burdine , 450 U.S. at 253.

70. Once the employer articulates such an explanation,

“the presumption [of discrimination] raised by the prima facie

case is rebutted and drops from the case.” See St. Mary’s Honor

Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The burden of

production then shifts back to the employee and merges with the

employee's ultimate burden to prove that he or she has been the

victim of intentional discrimination. See Burdine , 450 U.S. at

252.

71. In a claim for failure to accommodate a disability,

the McDonnell Douglas analyses is modified, requiring the

employee to establish the following elements of a prima facie

case: (1) she is a disabled individual; (2) she is a qualified

individual; and (3) the employer unlawfully discriminated

against her because of her disability. See Raytheon Co. v.

Hernandez , 540 U.S. 44, 49, n.3 (2003); Dangelo v. ConAgra

Foods, Inc. , 422 F.3d 1220, 1225-26 (11th Cir. 2005).

72. Additionally, in a failure to accommodate claim, the

Petitioner “must also identify a reasonable accommodation that

would allow her to perform the job.” See Terrell v. USAir , 132

F.3d 621, 624 (11th Cir. 1998). "Once the employee has met this

additional burden, the employer may rebut the claim by

presenting evidence that the requested accommodation imposes an

undue hardship on the employer." Id. Evidence of pretext plays

no role in the analysis of a claim based exclusively on failure

to accommodate. See Holly v. Clairson Industries, L.L.C. , 492

F.3d 1247, 1262-63 (11th Cir. 2007).

73. In order to establish that she was a disabled

individual, Petitioner was required to prove by a preponderance

of the evidence that: (1) she had a physical or mental

disability that substantially limited one or more of the major

life activities; (2) she had a record of such impairment; or (3)

she was regarded as having such an impairment. See 42 U.S.C.

§ 12102(2).

74. Here, Petitioner did not present competent persuasive

evidence that she was substantially limited in the major life

activity of standing. However, she provided Respondent with

medical documentation that referred to her inability to stand

for prolonged periods of time.

75. Petitioner also proved that Respondent regarded

Petitioner as being impaired. For years, Respondent accepted

Petitioner's physical limitations as permanent and allowed her

to use her discretion to rest her foot when necessary without

having to request permission.

76. Mr. Zook certainly accepted that Petitioner's

condition had at least temporarily become more disabling when he

received Petitioner’s September 17, 2007, doctor's note, stating

that she had to be off her foot for three weeks. At that time,

Mr. Zook told Petitioner to stay at home on medical leave until

her doctor lifted the restriction against standing.

77. To establish the second prong of the prima facie case,

the ADA defines a "qualified individual with a disability" as 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." See

42 U.S.C. § 12111(8).

78. The evidence establishes that as of September 17,

2007, and as to the Receiving Clerk position, Petitioner was not

a qualified individual with a disability due to her no-standing

restrictions. Petitioner offered no evidence at the hearing to

rebut Respondent’s position that the Receiving Clerk position

requires frequent standing and that there was no way that she

could perform all of the essential functions of that job from a

seated position. Accordingly, Petitioner failed to establish

that she was a qualified individual with a disability as of

September 17, 2007.

79. Petitioner has challenged Respondent’s decisions to

require her to work post-audit on August 27, 2007, and to

accommodate her temporary, no-standing restrictions by providing

her with a medical leave of absence. Turning first to

Respondent’s decision to require Petitioner to work post-audit

inventory, the evidence at the hearing establishes that

Respondent had no reason to believe that Petitioner could not

perform inventory post-audit, as that process was in many

respects similar to her responsibilities as the Receiving Clerk,

but less physically demanding.

80. Additionally, Respondent established that Petitioner

could have used her discretion to sit when she needed to during

that process just as she always did in the Receiving Department.

Accordingly, Petitioner failed to prove by a preponderance of

the evidence that Respondent failed to accommodate her no-

prolonged standing restriction during the post-audit process.

81. With respect to Petitioner’s claim that Respondent’s

decision to accommodate her temporary, no-standing restrictions,

by placing her on medical leave was somehow unlawful, her

argument is misplaced. An otherwise qualified individual is not

entitled to the accommodation of her choice, but only to a

reasonable accommodation. See Stewart v. Happy Herman’s

Cheshire Bridge, Inc. , 117 F.3d 1278, 1285-86 (11th Cir. 1997).

A medical leave of absence can be a reasonable accommodation.

See Stewart , 117 F.3d at 1286-87.

82. A reassignment to a vacant position may also qualify

as a reasonable accommodation. However, Respondent offered

testimony, which Petitioner failed to rebut, that there were no

available sedentary positions for which Petitioner was otherwise

qualified. Thus, it was entirely appropriate for Respondent to

accommodate Petitioner by offering her a leave of absence. See

Id.

83. Moreover, while Petitioner testified that the

Receiving Department personnel worked together as a team,

Respondent was not required to reallocate essential functions of

her position to other employees in order to accommodate

Petitioner’s restrictions. See Earl v. Mervyns, Inc. , 207 F.3d

1361, 1367 (11th Cir. 2000) (“an employer is not required by the

ADA to reallocate job duties in order to change the essential

functions of a job.”); Holbrook v. City of Alpharetta , 112 F.3d

1522, 1528 (11th Cir. 1997).

84. Petitioner asserts that she should have been permitted

to work, exercising her discretion to rest her foot as needed,

after receiving her doctor’s sedentary restrictions. This

suggestion is illogical as it would expose Petitioner to further

injury and Respondent to liability.

85. Petitioner argues that Respondent failed to provide

her a reasonable accommodation because Mr. Zook purportedly did

not engage in the interactive process with her during their

September 18, 2007, meeting or at any point thereafter. This

argument is without merit because Respondent provided Petitioner

with a reasonable accommodation in the form of a medical leave

of absence. Therefore, the alleged failure to engage in a

dialog beforehand does not give rise to liability. See Lucas ,

257 F.3d at 1256.

86. To the extent that Petitioner’s claim is based on

outright discrimination, as opposed to an alleged failure to

accommodate, it nevertheless fails. Petitioner did not

establish that Respondent’s legitimate, non-discriminatory

reasons for assigning her to work post-audit inventory or

placing her on a medical leave of absence were pretextual.

87. In order to establish her retaliation claim,

Petitioner was required to prove that: (1) she engaged in

statutorily protected activity; (2) she suffered an adverse

action; and (3) there was a causal link between the adverse

action and her protected activity. See Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1260 (11th Cir. 2001).

88. It is arguable that Petitioner engaged in statutorily

protected expression when she complained about her foot to

Ms. Lenox on August 27, 2007, after the post-audit, and to

Mr. Sinanian on August 28, 2007. Therefore, Petitioner has

proved the first prong of her retaliation claim.

89. With respect to the second prong of the retaliation

claim, an employment action is considered “adverse” if “a

reasonable employee would have found the challenged action

materially adverse, which . . . means it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” See Burlington Northern & Santa Fe Ry. v.

White , 548 U.S. 53, 68 (2006).

90. A failure to provide a requested accommodation,

including light duty work, or a failure to engage in the

interactive process does not constitute an adverse employment

action. See Lucas , 257 F.3d at 1261; Stewart v. Happy Herman’s

Cheshire Bridge, Inc. , 117 F.3d 1278, 1288 (11th Cir. 1997)

(“The acts Stewart describes relate directly to her ‘reasonable

accommodation’ discrimination claim, not her retaliation claim,

and accordingly provide no basis for denying summary judgment on

that issue.”).

91. Similarly, requiring an employee to take a medical

leave of absence cannot establish a claim for retaliation when

the employer can provide legitimate, non-retaliatory reasons for

the leave. See Basith v. Cook Cty. , 241 F.3d 919, 933 (7th Cir.

2001).

92. As discussed above, Petitioner failed to establish

that Respondent’s decision to accommodate her temporary, no-

standing restrictions by allowing her to take a leave of absence

was pretextual. Accordingly, because Petitioner did not

identify any challenged actions that constitute an adverse

employment action, she failed to establish the second prong of

her prima facie case.

93. Respondent had no sedentary position for Petitioner

that would comply with her doctor's orders. The only reasonable

accommodation that Respondent could make was to place Petitioner

on medical leave. That decision was not based on retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter an

order dismissing the Petitions for Relief in these consolidated

cases.

DONE AND ENTERED this 24th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November, 2009.

COPIES FURNISHED :

Hnin N. Khaing, Esquire

Henrichsen Siegel, PLLC

1648 Osceola Street

Jacksonville, Florida 32204

Kathleen Mones, Esquire

Seyfarth Shaw LLP

1545 Peachtree Street Northeast, Suite 700

Atlanta, Georgia 30309

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

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.