10-002586 Derek Griffin vs. Wyndham Vacation Ownership Status: Closed Recommended Order on Wednesday, August 18, 2010.

Summary: Petitioner did not prove that Respondent discriminated against him based on his alleged disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEREK GRIFFIN, )

)

Petitioner, )

)

vs. ) Case No. 10-2586

)

WYNDHAM VACATION OWNERSHIP, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case in Shalimar,

Florida, on July 9, 2010, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Derek Griffin, pro se

1136 Sweetbriar Station

Ft. Walton Beach, Florida 32547

For Respondent: W. Douglas Hall, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301-1866

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice by discriminating or retaliating against Petitioner based on an alleged disability.

PRELIMINARY STATEMENT

On October 29, 2009, Petitioner Derek Griffin (Petitioner)

filed an Employment Complaint of Discrimination with the Florida

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

Respondent Wyndham Vacation Ownership (Respondent) had

discriminated and retaliated against Petitioner based upon a

disability by terminating his employment following a work-

related injury.

On April 9, 2010, FCHR issued a Determination: No Cause.

On May 10, 2010, Petitioner filed a Petition for Relief. FCHR

referred the case to the Division of Administrative Hearings on

May 13, 2010.

A Notice of Hearing, dated May 26, 2010, scheduled a

hearing for July 9, 2010.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of two witnesses. Petitioner

offered 21 exhibits that were received into evidence.

Respondent presented the testimony of two witnesses.

Respondent offered 17 exhibits that were received into evidence.

A hearing Transcript was filed with the Division of

Administrative Hearings on July 30, 2010. Petitioner filed a

Proposed Recommended Order on August 10, 2010. Respondent filed

a Proposed Recommended Order on August 9, 2010.

Hereinafter, all references shall be to Florida Statutes

(2009) unless otherwise noted.

FINDINGS OF FACT

1. Petitioner was hired by Respondent as a Maintenance

Technician III in March 2007. He held that position until his

employment ended in January 2009.

2. Petitioner was responsible for performing maintenance

duties at two of Respondent's properties. The Majestic Sun is a

96-room, 10-story high-rise. Beech Street has 48 units in 24

two-story buildings. Both properties are located in Destin,

Florida.

3. A Maintenance Technician III is required to perform a

wide range of maintenance duties. The position involves the

following: (a) moving and lifting furniture, refrigerators,

stoves, televisions, and washers and dryers; (b) stooping and

kneeling to repair toilets, sinks, water heaters and air

conditioners; (c) climbing on ladders to change light bulbs,

repairing ceiling fans and performing other work; and

(d) climbing stairs.

4. The written Job Description Summary for the Maintenance

Technician III position describes the physical requirements as

follows: “Lift and carry up to 50 pounds; stand, sit and walk

for prolonged periods of time; climb up and down several flights

of stairs; frequent reaching, stooping, bending and kneeling;

manual dexterity and mobility; extensive prolonged standing and

walking.”

5. Petitioner injured his knee in a job-related incident

on September 6, 2008. He was treated at the Destin Emergency

Care Center and placed on restrictions requiring “no work for

now.” He was unable to work for approximately a week and a

half.

6. On September 17, 2008, Petitioner was given a Workers’

Compensation Uniform Medical Treatment Status Reporting Form

imposing medical restrictions of no lifting, pushing or pulling

greater than 10 pounds, and no ladders or stairs for four weeks.

With those restrictions, Petitioner returned to work on light

duty on September 18, 2008.

7. While on light duty, Petitioner was given only those

functions of his job that did not require him to exceed his

medical restrictions. Other employees had to perform all of

Petitioner’s other functions.

8. Petitioner's work restrictions were extended for

another four weeks by a Workers’ Compensation Uniform Medical

Treatment Status Reporting Form dated October 15, 2008. The

October 15 form imposed the same medical restrictions as the

September 17 form.

9. Petitioner aggravated his knee injury approximately a

week later. On October 22, 2008, he was given a Workers’

Compensation Uniform Medical Treatment Status Reporting Form

imposing the following work restrictions: (a) desk duty only;

(b) no lifting, pushing, or pulling at all; and (c) no standing

or walking for more than 15 minutes at a time.

10. Petitioner returned to work for a day or two after

being restricted to desk duty. Respondent, however, had no

desk-duty position available for him, so Petitioner was placed

on a leave of absence beginning October 24, 2008.

11. Petitioner requested leave under the Family Medical

Leave Act (FMLA). His request was denied on November 21, 2008,

because he did not provide all of the required information. The

obligation to provide that information is the employee’s. FMLA

leave was denied not by Respondent but by Cigna, which is a

third-party administrator for these benefits.

12. Because FMLA leave had been denied, Petitioner’s

employment was protected from termination for only 30 days from

the date he went on leave, through November 24, 2008. Employees

receiving workers’ compensation benefits are not protected from

termination. If a worker is not on FMLA leave, Respondent's

policy is that he or she may be terminated after 30 days of

leave.

13. Even though Respondent could have terminated

Petitioner after November 24, 2008, it did not do so.

Petitioner was medically restricted to desk duty throughout

November and December 2008. He remained on a leave of absence

during that time and began receiving workers’ compensation

benefits from the date his leave of absence commenced.

14. On December 16, 2008, Petitioner’s supervisor, John

Diaz, e-mailed the Assistant Resort Manager at the Majestic Sun

to ask about Petitioner’s status. Mr. Diaz had hired a

temporary employee to cover for Petitioner while he was on

leave. The cost of the temporary employee was significantly

more than the cost of a regular employee. Mr. Diaz was

concerned about the impact of the temporary help on his budget.

Mr. Diaz also was concerned about the lack of information that

he had received regarding the date Petitioner would return to

work.

15. Mr. Diaz's inquiry was forwarded to Raina Ricks, a

Human Resources Generalist in Respondent’s Human Resources (HR)

Department. Ms. Ricks responded on December 16 and 18, 2008,

reporting that Petitioner’s physician had recommended surgery.

She expected to have information about his surgery schedule and

recovery period within a few days.

16. The next day, December 19, 2008, Ms. Ricks e-mailed

Melanie Doubleday, an Analyst in Respondent’s HR Department, to

ask about Respondent’s policy on the length of time an employee

can remain on active status and not be terminated while unable

to work due to a job-related injury. Ms. Doubleday is located

in Respondent’s office in Orlando, Florida. Ms. Ricks asked

Ms. Doubleday at what point Petitioner would possibly be

terminated if he could not return to work soon.

17. Ms. Doubleday responded on December 22, 2008,

providing Respondent’s approved guidelines for processing

workers’ compensation injuries. She explained that if the

employee is eligible for FMLA, they would remain on workers’

compensation for the duration of their FMLA leave and not be

terminated during that leave. If not eligible for FMLA, the

employee would receive 30 days of leave.

18. Ms. Ricks updated Mr. Diaz and Chrysse Langley, the

Resort Manager, by e-mail the following day, December 23, 2008.

Ms. Ricks explained that, since Petitioner’s FMLA leave had been

denied, he was subject to termination 30 days following the

commencement of his leave on October 24, 2008. Ms. Ricks had

also been told by Petitioner’s workers’ compensation caseworker

that they still did not have an exact date for Petitioner’s

surgery, but that once the procedure was complete, he should be

able to perform his normal job duties without restrictions

within two to four weeks, or six weeks at the most. Ms. Ricks

asked Mr. Diaz and Ms. Langley for their thoughts on terminating

Petitioner.

19. Mr. Diaz responded later that day, stating that he was

“not trying to have [Petitioner] terminated.” Mr. Diaz's

concern was that he had not received any information about when

Petitioner would be required to return to work, and Petitioner

himself did not seem particularly motivated to return. If

Petitioner could return to work without restrictions within

eight weeks, Mr. Diaz was prepared to “live with that.”

20. Ms. Langley also responded later that day and

confirmed that she and Mr. Diaz both wanted to keep Petitioner,

if feasible. She also said that Respondent should proceed with

hiring the temporary employee who had been covering for

Petitioner during his absence, because Mr. Diaz was planning to

terminate one of the other Maintenance Technician III’s for poor

job performance. Subsequently, the temporary employee was hired

to replace the other Maintenance Technician III.

21. Two weeks later, on January 5, 2009, Ms. Doubleday

e-mailed Ms. Ricks regarding Petitioner’s “exhausted leave of

absence.” She said Petitioner was entitled to 30 days of leave

and must then either return to active status or be terminated.

For consistent application of Respondent’s policies, she

instructed Ms. Ricks to send Petitioner a Return to

Work/Administrative Termination Letter.

22. Ms. Ricks’ employment with Respondent ended a few days

later as part of a corporate restructuring. She did not send

the “Return to Work” letter before she left.

23. Denise Sniadecki, one of Respondent's HR Managers,

assumed Ms. Ricks’ responsibilities. She did not know about

Ms. Doubleday’s earlier e-mail or the denial of Petitioner's

FMLA leave. Respondent’s HR system, Oracle, showed Petitioner's

employment status as “Leave - Workers Comp - FMLA,” indicating

that he was on FMLA leave, despite the denial of his FMLA

application two months earlier. Ms. Sniadecki thus assumed

Petitioner was nearing the end of his FMLA leave, which would

have expired on January 24, 2009, 12 weeks after his medical

leave began on October 24, 2008. Ms. Sniadecki e-mailed

Ms. Doubleday on January 20, 2009, asking what letter she should

send to Petitioner in light of the fact that his leave would

soon be ending.

24. After a further exchange of e-mails, Ms. Sniadecki

e-mailed Ms. Doubleday on January 21, 2009, and explained that

Petitioner was listed in Oracle as being on FMLA leave, that he

had not been terminated after 30 days, and that she was just

getting involved because of Ms. Ricks’ departure. She asked

whether she should process Petitioner’s employment as having

been terminated 30 days after his leave commenced on October 24,

2008.

25. Ms. Doubleday responded later that day. She said that

Petitioner’s status should be changed in Oracle to "WC/Non FMLA"

and suggested he be terminated that day.

26. Coincidently, Petitioner came to the workplace that

same day, January 21, 2009, to drop off his latest Workers’

Compensation Uniform Medical Treatment Status Reporting Form.

Petitioner's knee surgery had taken place a week to 10 days

earlier. The form he brought in on January 21, 2009, imposed

job restrictions of no lifting, pushing or pulling greater than

10 pounds, no ladders, and limited kneeling or squatting for

four weeks.

27. Mr. Diaz informed Ms. Sniadecki of Petitioner’s new

work restrictions by e-mail that day. Mr. Diaz was not

comfortable having Petitioner return to work on light duty

because the medical restrictions severely limited his ability to

do what the job required and he might further injure his knee.

Mr. Diaz assumed Respondent still planned to administratively

release Petitioner later that week. Mr. Diaz copied Ms. Langley

on the e-mail.

28. Ms. Langley responded a short time later, stating that

there was no position that would fit Petitioner’s latest job

restrictions.

29. Ms. Sniadecki responded shortly afterward and told

Mr. Diaz that Petitioner “will not be returning as we do not

have light duty available for him.”

30. Petitioner was terminated effective January 24, 2009.

Ms. Doubleday and Ms. Sniadecki made the decision to terminate

Petitioner based solely on the application of company policy.

Mr. Diaz was not involved in the decision to terminate.

31. Ms. Sniadecki sent Petitioner a letter dated

January 26, 2009, stating he had been administratively

terminated for failure to return from leave because he could not

perform the essential functions of the Maintenance Technician

III position with his medical restrictions. The reference to

failure to return from leave referred to Petitioner’s inability

to return to work without medical restrictions. Petitioner was

invited to reapply for employment upon receiving a release to

return to work. All of this was consistent with Company policy.

32. Petitioner continued to be subject to medical

restrictions for six months after his employment with Respondent

ended. According to Workers’ Compensation Uniform Medical

Treatment Status Reporting Forms given to Petitioner in March

and April 2009, he was subject to restrictions against lifting,

pushing, or pulling greater than 20 pounds until the end of July

2009. The form given to him on July 29, 2009, stated he had

reached maximum medical improvement and imposed a permanent

restriction against pushing, pulling or pulling greater than 50

pounds. He was given a two percent permanent impairment rating

of the body as a whole.

33. Petitioner never reapplied to Respondent for

employment. He continued to receive workers’ compensation

benefits until he reached maximum medical improvement.

34. At the time of the hearing, Petitioner had found other

employment.

35. Petitioner presented no credible evidence showing that

he has a disability for purposes of the Americans with

Disabilities Act (“ADA”) or the Florida Civil Rights Act

2009, the date he attempted to return to work, he believed he

could do everything the job required, with the possible

exception of squatting down. Petitioner failed to present

persuasive evidence that he has any impairment that

substantially limits one or more major life activities.

36. Petitioner likewise failed to demonstrate that he was

a qualified individual for purposes of the ADA or FCRA. At the

time he was terminated, Petitioner was subject to medical

restrictions prohibiting him from lifting, pushing or pulling

greater than 10 pounds, using ladders, and kneeling or squatting

for more than a limited period of time. These are essential

functions of the Maintenance Technician III position. The

greater weight of the evidence demonstrates that Petitioner was

unable to perform the essential functions of the job at the time

he was terminated, either with or without a reasonable

accommodation.

37. Petitioner presented no evidence that he engaged in

any protected activity that would support a retaliation claim.

When asked why he thought Respondent had retaliated against him,

Petitioner responded that it was “because of his injury” and

“because [Mr. Diaz] was upset because he didn’t have the staff

to do the job.” Even if this testimony is accepted as true, it

does not constitute protected activity and will not support a

claim for retaliation.

38. In addition, Petitioner failed to demonstrate a causal

connection between his termination and any protected activity.

The greater weight of the evidence demonstrated that Petitioner

was terminated because he could not perform the essential

functions of the Maintenance Technician III position, not

because he engaged in any sort of protected activity.

Petitioner failed to prove any facts to support a retaliation

claim.

39. Petitioner attempted to demonstrate that other injured

employees received more favorable treatment than he did. None

of the alleged comparators identified by Petitioner was

similarly situated to him. One of them had a knee injury, but

her position required that she work at a desk, so the injury did

not interfere with her ability to perform the essential

functions of her job. The other alleged comparators were

maintenance technicians, but none of them had an injury like

Petitioner's that required a lengthy leave of absence. None of

them was subject to medical restrictions limiting them to desk

duty for even a short period of time.

40. Even if the other employees were similarly situated to

Petitioner, such a showing would not support a claim of

discrimination or retaliation. Petitioner would need to present

evidence demonstrating that non -disabled employees were treated

more favorably than he was, and he did not do that. In short,

Petitioner failed to identify any comparators that would support

his claim for discrimination or retaliation.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Florida Statutes.

42. Section 760.10(1)(a) of the FCRA provides that it is

unlawful for an employer to discriminate against any individual

based on such individual’s handicap.

43. Disability discrimination claims brought pursuant to

FCRA “are analyzed under the same framework as the ADA.” See

Chanda v. Engelhard/ICC , 234 F.3d 1219, 1221 (11th Cir. 2000);

Wimberly v. Securities Tech. Group, Inc. , 866 So. 2d 146 (Fla.

4th DCA 2004); and Razner v. Wellington Regional Medical Ctr.,

Inc. , 837 So. 2d 437, 440 (Fla. 4th DCA 2002).

44. To prove disability discrimination, a claimant must

establish a prima facie case, showing the following: (a) he or

(c) he or she was subjected to unlawful discrimination because

of a disability. See Earl v. Mervyns, Inc. , 207 F.3d 1361, 1365

(11th Cir. 2000). The burden of proof is on the plaintiff. Id.

at 1367.

45. A disability is “a physical or mental impairment that

substantially limits one or more major life activities.” See 42

U.S.C. § 12102(1)(A). For a major life activity to be

substantially limited, a person must either be unable to perform

it or be “significantly restricted as to the condition, manner

or duration” under which he can perform it, as compared to the

average person in the general population. See 29 C.F.R.

§ 1630.2(j).

46. In making the “substantially limited” determination,

the permanent or long-term impact, or expected impact of the

condition must be considered. See Chanda , 234 F.3d at 1222.

Temporary injuries and impairments of limited duration are not

disabilities under the ADA. See Wimberly 866 So. 2d at 147.

47. The evidence here indicates that Petitioner’s knee

injury was an impairment. However, the knee injury did not

significantly restrict a major life activity.

48. Major life activities include “walking” and “working

in a broad class of jobs.” See 42 U.S.C. § 12102(2)(A). In

this case, Petitioner produced no persuasive evidence that he

was significantly restricted in either activity. Accordingly,

Petitioner did not prove the first prong of his prima facie

case, that he was disabled.

49. Even if Petitioner’s knee injury was a disability, his

claim still would fail. The ADA does not protect all disabled

persons from discrimination in employment; it only protects a

“qualified individual.” See 42 U.S.C. § 12112(a). A “qualified

individual” is “an individual who, with or without reasonable

accommodation, can perform the essential functions of the

employment position.” See 42 U.S.C. § 12111(8). That is, the

ADA does not protect a complainant unless he or she can prove

that some reasonable accommodation would have allowed him or her

to perform the essential functions of the job. See LaChance v.

Duffy’s Draft House, Inc. , 146 F.3d 832, 835 (11th Cir. 1998).

50. There is no dispute that the essential functions of

Petitioner’s Maintenance Technician III job include much

strenuous labor. The written description of the job states as

follows: “Lift and carry up to 50 pounds; stand, sit and walk

for prolonged periods of time; climb up and down several flights

of stairs; frequent reaching, stooping, bending and kneeling;

manual dexterity and mobility; extensive prolonged standing and

walking.”

51. Petitioner’s medical limitations precluded him from

doing most, if not all, of those essential functions. Moreover,

Petitioner never identified (in the workplace or at hearing) any

accommodation that would have allowed him to perform those

functions.

52. Petitioner essentially contends that Respondent should

have allowed him to take continuing leave until he was fully

able to return to work, or create a light-duty position for him

until he could return to his job. Neither of these is required

by the law.

53. There is no obligation for an employer to create a

light duty position. See Terrell v. U.S. Air , 132 F.3d 621, 626

(11th Cir. 1998).

54. One court put it succinctly: “There is no obligation

under the Act to employ people who are not capable of performing

the duties of the employment to which they aspire.” See Sutton

v. Lader , 185 F.3d 1203, 1211 (11th Cir. 1999) (judgment for

employee reversed; employee contended he should have put on

light duty until he was able to return to work).

55. It was Petitioner’s burden to identify an

accommodation that would have allowed him to perform the

essential functions of his job—including the lifting. See

Gaston v. Bellingrath Gardens & Home, Inc. , 167 F.3d 1361, 1364

(11th Cir. 1999). Petitioner did not identify such an

accommodation.

56. It follows that an employer has no duty to allow an

employee to continue in a light-duty position the employer had

created for him. See Holbrook v. City of Alpharetta , 112 F.3d

1522, 1528 (11th Cir. 1997).

57. For all of these reasons, Petitioner did not prove his

prima facie case. His claim of disability discrimination is

without merit.

58. To establish a prima facie case of retaliation, a

complainant must prove the following: (a) that he or she

engaged in a statutorily-protected expression or protected

activity; (b) that he or she suffered an adverse employment

action; and (c) that a causal link exists between the protected

expression and the adverse action. See Hairston v. Gainesville

Sun Publishing Co. , 9 F.3d 913, 919 (11th Cir. 1993).

59. Petitioner here presented no evidence that he engaged

in any protected activity. He testified that Respondent

retaliated against him because of his injury and because

Mr. Diaz was upset that he did not have the staff to do the job.

Being injured and/or creating problems with covering the job are

not statutorily-protected expressions.

60. Petitioner likewise failed to prove a causal

connection between his termination and any protected activity.

The greater weight of the evidence demonstrates that Petitioner

was terminated because he could not perform the essential

functions of the Maintenance Technician III position, not

because he engaged in some sort of unidentified protected

activity.

61. It is beyond the scope of this case for the

undersigned to determine whether Respondent’s decision to

terminate Petitioner’s employment was wise or overly harsh. The

only issue is whether the termination was based upon unlawful

discrimination. “`The employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

discriminatory reason.’” See Department of Corrections v.

Chandler , 582 So. 2d 1183, 1187 (Fla. 1st DCA 1991), quoting Nix

v. WLCY Radio/Rahall Communications , 738 F.2d 1187 (11th Cir.

court must not “second-guess the wisdom of [that] decision.”

See Chapman v. AI Transport , 229 F.3d 1012, 1030 & n.18 (11th

Cir. 2000) ( en banc ).

62. More particularly, an employer does not have to hold

open the job of an employee who is on leave due to a work-

related injury. A policy protecting an employee on leave from

termination is a business decision that must not be second-

guessed. Respondent could have terminated Petitioner much

earlier than it did, without committing disability

discrimination. Workers’ compensation benefits, of course,

would continue after the termination, as they did here.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 18th day of August, 2010, 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 18th day of August, 2010.

COPIES FURNISHED :

Derek Griffin

1136 Sweetbriar Station

Fort Walton Beach, Florida 32547

Jae W. Im, Esquire

Wyndham Vacation Ownership

8427 South Park Circle, Suite 500

Orlando, Florida 32819

W. Douglas Hall, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32301

Denise Crawford, 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

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.