11-005643 Window Mitchell vs. North Florida Sales Company/Budweiser Status: Closed Recommended Order on Friday, May 4, 2012.

Summary: Petitioner failed to prove an unlawful employment practice under section 760.10, Florida Statutes, for discrimination on the basis of handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINDOW MITCHELL , )

)

Petitioner, )

)

vs. ) Case No. 11 - 5643

)

NORTH FLORIDA SALES )

COMPANY/BUDWEISER , )

)

Respondent. )

)

R ECOMMENDED ORDER

On March 27 , 201 2 , a duly - noticed hearing was held in

Jacksonville , Florida, before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Window Mitchell , pro se

Apartment 245

2150 Emerson Road

Jacksonville , Florida 3 2207

For Respondent: Amy Reisinger Harrison Turci, Esquire

Ford and Harrison, LLP

Suite 710

225 Water Street

Jacksonville, Florida 3 2202

STATEMENT OF THE ISSUE

The issue is w hether the Respondent committed an unla wful

employment practice under s ection 760.10, Florida Statutes , by

discriminating against Petitioner on the basis of handicap or

disability, and if so, what is the appropriate remedy .

PRELIMINARY STATEMENT

On Ju ly 7, 2011 , Petitioner filed a complaint with the

Florida Human Relations Commission (Commission) , alleging that

North Florida Sales Company, Inc. , had discriminated against h im

based upon h is handicap or disability . On October 18, 2011 , the

Commission issued a Notice of Determination of No Cause, and on

October 31 , 2011 , Petitioner filed a Petition for Relief. On

November 3 , 2011 , the matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was noticed for hearing on January 12, 2012 , in

Jacksonville , Florida . After some discovery delays , the hearing

was re - scheduled for March 27, 2012. Petitioner testified and

offered no exhibits. Respondent presented the testimony of one

witness and offered 11 exhibits. Respondent ' s Exhibits R - 1

through R - 9 a nd Exhibit R - 11 were admitted. Respondent ' s

Exhibit R - 10 , a copy of Petitioner ' s Facebook page, was found to

be not relevant and was not admitted.

The one - volume Transcript of the proceedings was filed with

the Division on April 11, 2012 .

FINDINGS OF FACT

1. North Florida Sales Company (North Florida), the

Respondent in this case, is a beer and ale wholesaler that does

business in Florida and employs over 15 people .

2 . Window Mitchell , Petitioner in this case, began working

at North Florida as a custodian in the maintenance department on

June 22, 2009. His normal schedule at North Florida was Monday

through Friday.

3 . Near the time he was hired, Petitioner received a copy

of Respondent ' s " Employee Information Handbook. " The handbook

advised Petitioner of North Florida ' s " open door " policy that

permitted employees to take any complaints or problems directly

to the Human Resources Manager, the General Manager, or the

President. It further advised employees that it was North

Florida policy to treat all employees equally wit hout regard to

race, color, religion, sex, age, marital status, disability, or

national origin. It stated that any violation of North

Florida ' s equal opportunity policies must be reported

immediately to the Human Resources Manager or General Manager

witho ut delay.

4 . The employee handbook also advised Petitioner of North

Florida ' s policies on attendance . It required employees to give

advance notice of any absence or lateness , and noted that

employees who fail to maintain an acceptable attendance record

w ould be subject to disciplinary action.

5 . On September 10, 2009, Petitioner received a n Employee

Warning Report noting that Petitioner had missed six days of

work during his 90 - day probationary period. The report s tated

that this amount of absenteeis m was considered excessive and

that immediate improvement was expected. It was signed by

Petitioner and Petitioner ' s supervisor.

6 . On November 10, 2009, Petitioner received another

Employee Warning Report. It stated that Petitioner ' s attendance

continu ed to be a problem and that it was creating a burden on

the maintenance department. It stated that further incidents of

absenteeism, or arriving late or leaving early , would result in

termination. It was signed by Petitioner , Petitioner ' s

supervisor, and Margaret Lombardi, Human Resources Manager.

7 . There is no evidence that Petitioner ever received any

further " Employee Warning Reports . "

8 . On June 3, 2010, Petitioner received an Employee

Performance Review. In his review, Petitioner was given a

rat ing of " 3 " out of " 10 " on " dependability. " The comment under

that heading indicated that Petitioner was " out from work too

many days. " Petitioner received two other " 3 " s on his

evaluation and received no evaluation above a " 5 " in any area.

In the final section, entitled " Objectives for the Next Review

Period, " the first of two objectives listed was " keep all curbs

in warehouse painted. " The second was, " try to be at work all

of the time. "

9. On July 17, 2010, Petitioner was returning from a

barbecue with four friends . He testified that he had not been

drinking. T he car he was driving ran into a pole head - on.

Petitioner ' s knee and leg hurt and became badly swollen. He had

" little chunks of meat " missing from his left elbow and forearm .

He was seen by a n emergency doctor at Baptist Medical Center

about 9:45 p.m., released, and given discharge instructions.

10 . On July 19 or 20 , 2010, Ms. Lombardi received a paper

entitled Adult Discharge Instructions on a Baptist Health form

dated July 17, 2010. It indicated that Petitioner had been in

the vehicle collision and had been treated for abrasions and a

contusion on his right knee. In the instructions, Petitioner

was told to take medications as instructed, follow up with the

doctor in two days, and r eturn to the emergency room for

worsening symptoms. A box was checked indicating " no work for 2

days. " Ms. Lombardi interpreted the note as excusing Petitioner

from work on Sunday and Monday, and therefore expected

Petitioner to return to work on Tuesday , July 20, 2010.

11 . When Petitioner did not return to work on Tuesday ,

Ms. Lombardi called him. Petitioner said he did not realize

that the doctor ' s note had excused him for only two days.

Ms. Lombardi told Petitioner that it did, and she told him he

needed to come to work that day . Petitioner complained that his

arm and leg were still hurting. Petitioner said he would return

to work that afternoon , but did not.

12 . Petitioner did not come to work on Wednesday, July 21,

2010 . Petitioner left a me ssage for Ms. Lombardi and she called

him about 10 a.m. Petitioner told Ms. Lombardi that he had gone

to the doctor the day before and had a nother note excusing him

from work . Ms. Lombardi asked Petitioner why he had not called

her or the supervisor to l et them know. Petitioner stated that

he had called the supervisor, but had been unable to reach him

and had been asked to call back. Petitioner said he did not

call back because he did n o t get out of the doctor ' s office

until after 5:00 pm. Ms. Lombardi directed him to have the note

sent to her by facsimile transmission (fax) .

13 . Ms. Lombardi received a form faxed from Baptist Health

entitled " Discharge Instruction " about 4:38 p.m. that day , as

indicated in her note prepared for Petitioner ' s file. It had a

subtitle of " Work R elease Form. " The form stated that

Petitioner had been seen again on July 21, 2010 , and that he

could return to work on July 25, 2010. The form had date and

time blocks indicating " July 21, 2010 " and " 4:31 p.m. "

Ms. Lombardi testified that the form from Baptist Health

indicated that Petitioner had been seen by a doctor that same

day and that " I received it shortly after - Î there was a discharge

time on it. "

14 . On the following day, July 22, 2010, Ms. Lombardi

again called Pe titioner . When asked about a n excuse from the

doctor whom Petitioner had seen on July 20, 2010, Petitioner

replied , " Oh, that was a different doctor." Petitioner said

that the excuse from the visit on July 21, 2010, was from the

same doctor he saw on Jul y 17, 2010. Ms. Lombardi ' s file note

stated that this was " the second time that Mitchell has incurred

absences with inconsistency in the facts surrounding that

absence. "

15 . Petitioner gave evasive and inconsistent testimony at

hearing about whether the re was ever a third doctor ' s excuse , in

addition to the excuses o f July 17, 2010 and J uly 21, 2010 . Any

of Petitioner ' s testimony suggesting that there was third excuse

was not credible. There were only two doctor ' s excuses .

16 . On July 22, 2010, Ms. Lombardi filled out a

" Status/Payroll Change Report " that discharged Petitioner from

employment at North Florida. In the " Reason " portion of the

form, Ms. Lombardi wrote, " Excessive absenteeism and multiple

incidences of inconsist ent facts surrounding his absences. "

17 . Petitioner was immediately notified by telephone that

his employment had been terminated. In th at conversation,

Petitioner asked Ms. Lombardi why he was being discharged .

Ms. Lombardi told Petitioner that the b asis for his discharge

was his poor attendance .

18 . Petitioner was recovering from the injuries he

received in the accident for about a week - and - a - half. After

that he was fully recovered .

1 9. Petitioner ' s substantial interests are affected by

Respond ent ' s decision to discharge him. It has been difficult

to find work in the depressed economy and Petitioner has

financial responsibilities. Petitioner has three children.

Petitioner was employed by Wage Solutions, working the warehouse

at Liberty Furnit ure, unloading furniture and bringing it to the

showroom from March 2011 to August 2011. Petitioner lost that

job because that business closed . At the time of hearing

Petitioner was not employed.

20 . Petitioner went to the Florida Commission on Human

Relations. He did not complain to them that he had been

discriminated against on the basis of a handicap or disability.

He just wanted an investigation into his discharge because he

believed he had been terminated unfairly. He testified:

Doing Î I guess, telling my side of the

story to file whatever they wanted me to

file. I didn ' t even know it was doing Î

about the disability or not. I didn ' t know

they signed me up under that. The only

thing I thought, they were going to

investig ate to see why I got terminated.

* * *

A nd from there, I guess that Î that ' s it. I

knew I had to come to court from there, so I

was just really based on that. I knew I had

to show up to court for Î I wasn ' t looking

for all of this to come dow n to this. The

only thing Î I just wanted to know why I got

fired, because I Î about my attendance or

being absent, but I had excuses for them.

21 . On October 12, 2011, Petitioner filed a Petition for

Relief against Respondent claiming an unlawful employment

practice , alleging that he was wrongfully fired because of a

mishap , which was referred to the Division of Administrative

Hearings the same day.

C ONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case under sections 120.569 , 120.57(1), and 760.11(7), Florida

Statutes (2011) .

23 . This case was filed under t he Florida Civil Rights

Act, sections 760.01 Î 760.11 and 509.092 , Florida Statutes

(2010). 1/

24 . Respondent is an employer as that term is defined in

s ection 760.02(7) .

25 . Petitioner has standing to obtain an administrative

hearing .

26 . Section 760.11(1) provides that an aggrieved person

may file a complaint with the Commission within 365 days of the

alleged violation. Section 760.11(7) provides that an aggrieved

person may request an administrative hearing within 35 days

following a finding of no reasonable cause by the Commission.

Petitioner timely filed his complaint, and following th e

Commission ' s initial determination, timely filed his Petition

for Relief requesting an administrative hearing.

27 . Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. F la. Dep ' t of Transp. v . J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

28 . Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer 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, ag e, handicap, or marital

status. " The Florida Civil Rights Act thu s prohibits an

employer from discharging an employee based on a handicap,

unless the absence of the handicapping condition is necessary

based on a bona fide occupational qualification. Davidson v.

Iona - Mcgregor Fire Prot. & Rescue Dist. , 674 So. 2d 858, 8 60

(Fla. 2nd DCA 1996) .

2 9. Florida Civil Rights Act provisions prohibiting

discrimination on the basis of handicap are construed in

conformity with the federal Americans with Disabilities Act

(ADA). Greene v. Seminole Elec. Co - op., Inc. , 701 So. 2d 646,

647 (Fla. 5th DCA 1997) ; Brand v. Florida Power Corp. , 633

So. 2d 504 (Fla. 1st DCA 1994) .

30 . Discriminat ion can be established through direct or

circumstantial evidence . U .S. Postal Serv. Bd. of Gov ' nrs v.

Aikens , 460 U.S. 711, 714 (1983) .

31 . Di rect evidence of discrimination is evidence that, if

believed, establishes the existence of discriminatory intent

behind an employment decision without inference or presumption.

Wilson v. B/E Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004) .

32 . There was no direct evidence to suggest that

Responde nt regarded Petitioner as handicapped. Respondent

indicated that the basis for termination of employment was

absenteeism and untruthful statements about reasons for his

absences. Petitioner did not identif y any specific comments or

incidents which c ould be considered unambiguous examples of

discrimination, and did not argue that this was a direct -

evidence case .

33 . Petitioner sought to prove discrimination through

circumstantial evidence. In some disability 2/ cases , in which

the employer admits that challenged action was based in whole or

in part o n the employee ' s disability, the issue is whether the

employee is qualified despite disability, or what accommodations

are reasonably available. Here, however, Respondent maintains

that it did not consider Petitioner to be disabled, and that any

disability played no part in its decision - making process. In

making an inquiry into an employer ' s motivation , it is

appropriate to use the analysis established by the Supreme Court

for race and gender discrimination cases arising under Title

VII , as set forth i n McDonnell - Douglas Corp. v. Green , 411 U.S.

792 (1973 ) , later refined in St. Mary ' s Honor Center v. Hicks ,

509 U.S. 502 (1993) . Barth v. Gelb , 2 F.3d 1180, 1185 ( D.C.

Cir. 1993); Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla.

1 st DCA 1994).

34 . Under McDonnell - Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent has the burde n of articulat ing some

legitimate, non - discriminatory reason for the action taken

against Petitioner. It is a burden of production, not

persuasion. If a non - discriminatory reason is offered by

Respondent, the burden then shifts back to Petitioner to

demo nstrate that the offered reason is merely a pretext for

discrimination.

35 . To establish a prima facie case of discrimination

under the ADA, a plaintiff must demonstrate that (1) he has a

disability; (2) he is a qualified individual; and (3) he was

subj ect ed to unlawful discrimination as the result of his

disability. St. John ' s C ou n ty Sch . Dist . v. O ' Brien , 973 So. 2d

535 (Fla. 5 th DCA 2007).

36 . The Florida Civil Rights Act does not define the term

" handicap, " but the Fair Housing Act, immediately following it

in the Civil Rights Title of the Florida Statutes , does.

Section 760.22(7) provides that the term " handicap " means a

person has a physical or mental impairment which " substantially

limits one or more maj or life activities , " or he or she has a

record of having, or is regarded as having, such physical or

mental impairment; or a person has a developmental disability as

defined in s ection 393.063 . This Fair Housing Act definition

has been applied in employment discrimination cases. Greene v.

Seminole Elec. Coop., Inc. , 701 So. 2d 646, 648 (Fla. 5th DCA

1997)(applying F air Housing Act ' s definition of " handicapped " to

find that FCRA protect s persons with perceived disabilities).

This definition is also consistent with the definition of

disability in the Americans with Disabilities Act. Gordon v.

E.L. Hamm & Assocs., Inc. , 100 F.3d 907, 911 (11th Cir. 1996).

37 . Regulations promulgated by the Equal Employment

Opportunity Commission (EEOC) interpreting the ADA state that

major life activities include " caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking,

standing, sitting, reaching, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking,

communicating, interacting with others, and working . " 29 C.F.R.

§ 1630.2(i); Reed v. Heil Co. , 206 F.3d 1055, 1061 (11th Cir.

2000 ).

38 . While an impairment need not necessarily last for more

than six months to be considered " substantially limiting, " t he

duration of an impairment is one factor that is relevant in

determining whether the impairment sub stantially limits a major

life activity. Impairments that last for only a short period of

time are typically not covered, although they may be if they are

sufficiently severe. Lewis v. Fla. Default Law Group, P.L. ,

2011 U.S. Dist. LEXIS 105238 (M.D. Fla. Sept. 15, 2011) .

3 9. Petitioner failed to prove that he had an " actual "

disability under the Florida Civil Rights Act. While he

testified that he was in pain, he failed to offer any evidence

that impairment resulting from the accident " substantially

lim ited " the performance of any major life activity . Even if

Petitioner had testified as to a range of activities he could no

longer perform, the evidence was clear that at most Petitioner

would have been limited for only a few days . Given the lack of

evide nce of any substantial limitation and the undisputed short

term nature of the injuries, Petitioner did not demonstrate that

he was " substantially limited " in performing any major life

activities within the meaning of the statutes . Lewis v. Fla.

Default La w Group, P.L. , 2011 U.S. Dist. LEXIS 105238 (M.D. Fla.

Sept. 15, 2011). See also Richio v. Miami - Dade County , 163

F. Supp. 2d 1352, 1361 - 1362 (S.D. Fla. 2001 ).

40 . As noted earlier, the statutory definition s of

disability also may encompass individuals without an " actual "

disability. While there was no evidence in this case that

Petitioner " had a record " of having an impairment or suffered

from a developmental disability , the possib i lity that Respondent

migh t have regarded Petitioner as having an impairment should be

considered . 3 / See Davidson v. Iona - McGregor Fire Prot. & Rescue

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

41 . However, t here was no evidence that anyone, including

Petitioner and Respond ent , was under the impression that

Petitioner was disabled as a result of the accident. The

d octor ' s note originally provided to Respondent had indicated

that Petitioner was excused from work for only two days, and it

was in fact the belief of Respondent that Petitioner was fully

able to return to his duties after that time which prompted the

telephone call to him on Tuesday asking why he was not at work .

42 . Moreover, i mpairments that are transitory and minor

are not sufficient to support a claim of " being regarded as

having such an impairment . " The ADA was amended in 2008 4/ to

define this phrase as follows:

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of

" being regarded as having such an

impairment " if the individual establishes

that he or she has been subjected to an

action prohibited under this chapter because

of an actual or perceived physical or mental

impairment whether or not the impairment

limit s or is perceived to limit a major life

activity.

(B) Paragraph (1)(C) shall not apply to

impairments that are transitory and minor. A

transitory impairment is an impairment with

an actual or expected duration of 6 months

or less .

42 U.S.C. § 12102(3) . Thus, injuries with an actual or expected

duration of six months or less cannot be the basis of a

" regarded as " claim of disability discrimination . See White v.

Interstate Dist. , 438 Fed. Appx. 415 (6th Cir. Tenn. 2011)(leg

fracture with limitations la sting for a month or two was

" transitory " under ADA and petitioner could therefore not

establish a " regarded as disabled " claim ).

43. Neither was there any evidence of the third prong

necessary to prove a prima facie case of discrimination. There

was s imply no testimony or other evidence to suggest that

Respondent was subject ed to unlawful discrimination on the basis

of a real or perceived disability.

4 4 . Petitioner therefore failed to demonstrate a prima

facie case of discrimination on the basis of h andicap or

disability .

4 5 . Even had Petitioner been able to establish a prima

facie case of discrimination, Respondent articulated a

legitimate , non - discriminatory reason for terminating

Petitioner . Respondent met that burden of production with the

testimony of M s. Lombardi that Petitioner was terminated because

of his excessive absent ee ism and because Petitioner

misrepresented that he had already received a doctor ' s excuse

for missing work on Tuesda y and Wednesday, when actually he had

not yet received it.

4 6 . Petitioner offered no evidence to suggest that

Respondent ' s reason for terminating Petitioner w as simply a

pretext for unlawful discrimination. See Young v. Gen . Food

Corp. , 840 F.2d 825, 830 (11th Cir. 1988)( " Once a legitimate,

nondiscriminatory reason for dismissal is put forth by the

employer, the burden returns to the plaintiff to prove by

significant probative evidence that the proffered reason is a

pretext for discrimination. " ) .

4 7 . The evidence showed that Petitioner eventually

obtained written medical excuses for each day missed following

his unfortunate car accident. Under these circumstances, it is

understandable that Petitioner, and others, might believe that

his termination wa s unjustified. However, Respondent presented

a plausible business reason for the decision to terminate

Petitioner , based upon Petitioner ' s earlier attendance history

and his l ack of candor regarding this most recent absence, and

there was no evidence that the true motive was actually

discrimination. The decision to terminate Petitioner may have

been wrong , or even unfair, but there was no evidence that

Respondent ' s decision had anything to do with any actual or

perceived disability.

4 8 . The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful animus. See Nix v. WLCY Radio/Rahall

Commc ' ns , 738 F.2d 1181, 1187 (11th Cir. 1984) .

RECOMMENDATION

Upon consideration of the above fi ndings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Petitioner ' s complaint.

DONE AND ENTER ED this 4 th day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

F. SCOTT BOYD

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 w ith the Clerk of the

Division of Administrative Hearings

this 4 th day of May , 2012.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version, which was the law in effect

when the alleged unlawful employment practice took place.

2 / The Florida Civil Rights Act uses the term " handicap , " while

parallel federal legislation has been amended to substitute the

term " disability. " The terms have the same meaning in analysis

here. See Smith v. Avat a r Props. , 714 So. 2d 1103, 1105 (Fla.

5 th DCA 1998).

3 / The " regarded as " prong was included in the ADA to address

situations in which " unfounded concerns, mistaken beliefs,

fears, my ths, or prejudice about disabilities " resulted in

discrimination. Lewis v. Fla. Default Law Group, P.L. , 2011

U.S. Dist. LEXIS 105238 (M.D. Fla. Sept. 15, 2011) (citing a 2008

Senate Statement of Managers and the House Judiciary Committee

Report).

4/ AD A Amendments Act of 2008, Pub. L. No. 110 - 32, 122 Stat. 3553

(codified at 42 U.S.C. 12102).

COPIES FURNISHED:

Window Mitchell

Apartment 245

2150 Emerson Road

Jacksonville, Florida 32207

Amy Reisinger Harrison Turci, Esquire

Ford and Harrison LLP

Suit e 710

225 Water Street

Jacksonville, Florida 32202

[e-mail]

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

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.