12-002441 Teresa Urbina vs. Sanmar Status: Closed Recommended Order on Friday, November 30, 2012.

Summary: Petitioner did not meet her burden of proving that Respondent discriminated against her on the basis of disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA URBINA , )

)

Petitioner, )

)

vs. ) Case No. 12 - 2441

)

S ANMA R , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held, pursuant to notice, on September 13 ,

14 , and 25, 20 12 , in Jack s on ville, Florida, before the Division

of Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Teresa Urbina , pro se

Apartment 1102

1535 Blanding Boulevard

Middleburg , Florida 32068

For Respondent: Michael G. Prendergast , Esquire

Lindsay Dennis Swiger, Esquire

Holland and Knight, LLP

50 North Laura Street, Suite 3900

Jacksonville , Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on December 26 , 20 11 .

PRELIMINARY STATEMENT

On December 26 , 20 11 , Petitioner, Teresa Urbina , filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) , which alleged that Respondent, Sanmar

Corporation, violated s ection 760.10, Florida Statutes, by

discriminating against her o n the basis of disability .

The allegation s were investigated and on July 2, 20 12 , FCHR

issued its determination of "no cause" and Notice of

Determination: No Cause.

A Petition for Relief was filed by Petitioner on July 12 ,

20 12 . FCHR transmitted the case to the Division of

Administrative Hearin gs (Division) on or about July 1 3 , 20 12 .

A Notice of Hearing was issued setting the case for formal

hearing on September 13 and 14 , 20 12 . 1/ The hearing took place

as scheduled , but was not completed in two days . The hearing

was reconvened on September 25, 2012, and concluded that day.

At hearing, Petitioner presented the testimony of Maria

Roch a, Manuel Sanchez , and William Rocha, and testified on her

own behalf. Petitioner 's E xhibits numbered 1 through 5, 9

through 13, and 15 through 17 were admitted into evidence.

Exhibit 6 was admitted in part, and E xhibit 8 was admitted for a

limited purpose. Respondent presented the testimony of Lo ri

Schutter , Alice Torres , Becquer Rosado, Terri Andrews, Tasha

Porter, Christy Hammond, Paul Rhodes, and Olivia Thur mond .

Respondent offered Exhibits numbered 1 through 15 , 17 through

23, 25 through 32 , 34 through 50, 52 through 54, and 56 through

59, which were admitted into evidence.

A Transcript consisting of five volume s was filed on

October 10 , 20 12 . On October 22 , 20 12 , Petitioner filed a

written post - hearing submission. On November 9 , 2012,

Respondent filed a Proposed Recommended Order. The parties'

respective submissions have been duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner , Teresa Urbana, began employment with Sanmar

Corporation (Sanmar) i n August 2008 as a seasonal employee and

worked there until November 2008. She was rehired in July 2009

in a Re - stocker position. She was promoted to Order Processor

and was made a full - time regular employee later that year.

2. Sanmar is a distributor of promotional apparel and

accessories to companies that sell promotional apparel. The

Jacksonville lo cation is one of seven distribution centers (DC)

throughout the country. The Jacksonville DC fulfills customer

orders by receiving, picking, checking, packing and shipping

them. Respondent is an employer as contemplated by c hapter 760,

Florida Statutes.

3. An O rder P rocessor is responsible for picking and

checking the order, and then packing the order for distribution

to Sanmar's customer s . The position description for Order

Processor includes the following:

PHYSICAL DEMANDS :

While performing the dutie s of this job , the

employee is constantly required to walk and

stand . The employee is frequently required

to reach with hands and arms, handle or feel

product, to pull/push cart with product,

grasp and perform repetitive hand, wrist and

arm motions. The employee is frequently

required to climb, kneel/squat, bend and

carry. The employee occasionally lifts

and/or moves up to 40 pounds, and seldom

lifts and/or moves up to 50 pounds.

Specific vision abilities required by this

job include close vision, color vision,

peripheral vision, depth perception and

ability to adjust focus.

WORK ENVIRONMENT :

Work environment is moderately noisy. The

employee is occasionally required to work

near conveyor systems. There is exposure to

dust and changes in weath er conditions.

Employee must be able to handle stress that

is involved in meeting strenuous customer

deadlines, working in high volume areas, and

be flexible and able to interact with

employees at all times.

4. Paul Rhodes is the Distribution Manager an d Alice

Torres is Human Resources Manager for Sanmar's Jacksonville DC .

Ms . Torres reports to Olivia Thurmond, Senior Manager of Human

Resources. Ms. Thurmond is in the corporate headquarters for

Sanmar , which is located in Issaquah, Washington.

5. Sanmar's Employee Handbook includes an Equal Employment

Opportunity Policy, an Anti - Harassment and Non - Discrimination

Policy, and a Reasonable Accommodation Policy. Petitioner

received a copy of the Employee Handbook.

Allegations Related to Dis ability

6. On April 21, 2011, Petitioner approached Ms. Torres to

inform her of pain Petitioner was having in her wrists and

hands. Petitioner informed Ms. Torres that she believed that

this condition was work - related. With the help of Ms. Torres'

assistant, Y adira Batlle, Petitioner completed an

Accident/Incident Report. Ms. Batlle actually completed the

form based on information provided by Petitioner, because

Petitioner is not fluent in English, as her primary language is

Spanish. The Accident/Incident Rep ort was signed by Petitioner

and references carpel - tunnel in both hands as the description of

the injury.

7. On that same day, Sanmar provided Petitioner with

contact information for Solantic Baptist Occupational Health

(Solantic) so she could receive evaluation and treatment for her

injury which Petitioner claimed was work related. While there

was some dispute as to whether Petitioner's condition was work

related and covered by workers' compensation , it is undisputed

that Sanmar r eported the injury to its workers' compensation

carrier and Petitioner did receiv e benefits and medical

treatment through workers' compensation.

8. On April 22, 2011, Petitioner was evaluated at

Solantic. As a result of her evaluation, Petitioner was

released to return to work with a work restriction of wearing

wrist braces. Petitioner continued to perform her Order

Processor job duties wearing wrist braces.

9 . Petitioner also was evaluated by her personal

physician, Dr. Esquivia - Munoz, who provided a note dated June 1,

2011, which stated as follows :

This patient has bilateral moderate carpal

tunnel l [sic] syndrome worse at right wrist,

which is interfering with her regular duties

and regular activities for which she will

need surgical decompression i n the future.

10. When Ms. Torres received this doctor's note, she

explained to Petitioner that the note did not include any

specifics as to any work restrictions. As a result, Ms. Torres

advised Petitioner she could not allow her to return to work

until the company received work restrictions from her doctor.

Therefore, Sanmar placed Petitioner on a leave of absence under

the Family and Medical Leave Act (FMLA).

11. On June 2, 2012, Ms. Torres sent a fax to

Dr. Esquivia - Munoz with a request that he complete an attached

certification of Petitioner's health condition. He completed

the form, but the information he provided essentially repeated

what he wrote on the June 2, 2011, note, and did not provide

specific working restrictions which Sanmar requested and needed

to be able to provide appropriate and safe working restrictions

for Petitioner. Ms. Torres forwarded these documents to Christy

Hammond, Sanmar's L eave Supervisor, who is located in the

Washington office.

12. On June 3, 2012, Lori Shutter, S a nmar's Benefits

Manager, faxed a request to Dr. Esquivia - Munoz, requesting that

he complete an enclosed "release to return to work" form

identifying work restr ictions. She also attached a position

description for the Order P rocessor p osition. Sanmar did not

receive a completed form or further specific work restrictions

from Dr. Esquivia - Munoz despite this request.

13 . Petitioner went back to Concentra, the workers'

compensation medical provider, for further evaluation.

Concentra identified her activity status as "modified activity"

and identified her work restrictions as no pushing , pulling or

lifting over zero pounds, and referred her to a hand surgeon.

The facsimile shows that this information was faxed to Sanmar on

June 13, 2011.

14 . Ms. Torres forwarded this information to Ms. Hammond

in the corporate office, and discussed it with Mr. Rhodes. The

Order Processor position involved frequent reaching, pushing,

grasping, and performing repetitive hand motions. Pushing,

pulling, and lifting are essential functions of the Order

Processor job. Accordingly, the work restrictions received from

Concentra prevented Petiti oner from performing essential

functions of the job of Order Processor, with or without

reasonable accommodations.

1 5 . Sanmar found light - duty work that Petitioner could do

within the work restrictions as set forth by Concentra . She was

assigned to do " go - backs," which is part of the order processing

job, but not the entire job. Go - backs are items, such as hats

or t - shirts, found in the wrong bins. The go - back work required

Petitioner to use a computer to find the product's correct

location, write down that location, and carry the product to the

correct location. There is no regular go - back position at

Sanmar. This was a temporary assignment created to accommodate

Petitioner by eliminating many of the regular functions of the

O rder P rocessor position, including pushing, pulling, picking,

and packing items to fill customer orders.

16. On June 13, 2011, Ms. Torres called Petitioner to

a dvise her that Sanmar had light - duty work within Petitioner's

work restrictions. Petitioner ret urned to work on June 15,

2011, performing go - backs at her regular rate of pay , i.e., as

when she could perf orm all functions of the Order P rocessor

position.

17. On June 17, 2011, Petitioner submitted a Leave of

Absence Request Form, requesting to comm ence leave on June 20,

2011. Ms. Torres then provided a Notice of Eligibility and

Rights and Responsibilities for leave under FMLA to her . This

document notified Petitioner that she was eligible to receive

FMLA leave, and further notified her that she ne eded to provide

sufficient certification to support her request for FMLA leave

by July 1, 2011.

18. On June 2 0, 2011, Petitioner clocked in at work at

approximately 12:24 p.m., after an appointment with Petitioner's

hand specialist, Dr. Greider. Petitioner immediately went to

the Human Resources office and provided a note from Dr. Greider

which confirmed that she had an appointment with him that

morning, and left his office at 11:30.

19 . Petitioner also provided a doctor's note from

Dr. Greider detailing Petitioner's work restrictions . She gave

the note to Ms. Batlle, because Ms. Torres was out of the office

at that time. The note reads as follows:

LIGHT DUTY WORK RESTRICTIONS

No repetitive gripping and pinching.

No repetitive pulling and push ing.

No lifting greater than 5 pounds.

No production keying (until further notice)

Frequent rest breaks - 5 minutes per hour.

Effective until pending surgery.

20. Ms. Batlle left copies of these doctor's notes for

Ms. Torres , along with a handwritten no te stating that

Petiti oner was going home for the day .

21. Ms. Thurmond happened to be visiting the Jac ksonville

DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes,

along with Ms. Hammond by telephone, discussed Petitioner's new

work restrictions and concluded that, because processing go -

backs required keyboarding, gripping and pinching, Petitioner

cou ld no longer perform that light - duty work. 2/ Accordingly,

Sanmar approved Petitioner's request for FMLA leave.

2 2 . Beginning June 21, 2011, Petitioner began taking the

FMLA leave she had requested. During this leave, Petitioner had

surgery on her right hand on July 21, 2011. Petitioner remained

on FMLA leave until September 13, 2011, at which point she had

exhausted her FMLA leave entitlement and had still not been

released to work. Rather than terminating Petitioner's

employment at that time, Sanmar provided additional leave until

the company was able to determine whether Petitioner would be

able to return to work. Sanmar provided Petitioner an FMLA

Designation Notice which informed her that her absence from

September 14 through September 25 would be provided to her "as a

re asonable accommodation under the Americans with Disability Act

(ADA). "

23 . On September 16, 2011, Ms . Hammond prepared a letter

to Dr. Greider outlining the modified work description in doing

go - backs, and asking him to advise whether or not she would be

able to perform those duties . Dr. Greider faxed a reply to

Ms. Hammond on September 20, 2011, advisi ng that the activities

described in Ms. Hammond's letter would be acceptable.

24 . M s. Torres and Ms . Hammond prepared a letter to

Petitioner dated September 22, 2011, advising her that Sanmar

had received a written confirmation from Dr. Greider that she

had been approved to return to work with the modified duties

(performing go - backs) . The letter further notified Petitioner

that she was expected to return to work on September 26, 2011,

which she did. Ms . Torres did not receive any complaints from

Pe titioner during the September to November timeframe regardin g

her ability to perform the go - backs duty.

25 . On November 2, 2011, Petitioner provided Ms. Torres

with a note from Dr. Grieder confirming Petitioner would be out

of work for surgery on her lef t hand from November 7 through 10,

2011. The note states the following:

Patient is scheduled for hand surgery on

11/7/11 and may remain out of work from

date of surgery until 11/10/11 at which

point patient may return to work with no

use of the left han d until follow up

appointment on 11/21/11.

26 . Ms. Torres and Petitioner had a discussion regarding

Dr. Greider's note during which Petitioner expressed doubt that

she would be able to return to work November 10 as she still had

restrictions on the use of her right hand and did not know what

kind of wo rk she would be able to perform after surgery on her

left hand.

27 . Ms . Torres than contacted Ms. Hammond via e - mail

requesting her assistance in confirming the work restrictions,

if any, on Petitioner's use of her right hand. On November 8,

2011, Ms. H ammond, through the company's workers' compensation

carrier, received confirmation from Dr. Greider's office that

s he was released from work restrictions with regard to her right

hand as of October 17, 2011 . 3/

28 . On November 9 and 10, Petitioner left v oice mail

messages for Ms. Torres and her assistant regarding her

inability to work .

29 . On November 11, 2011, Petitioner did not report to

work. Because this was the date that had been indicated by

Dr. Greider as the date she was released to return to work

(regarding her right hand), and after receiving guidance from

Ms. Hammond and input from the workers' compensation carrier,

Ms. Torres called Petitioner and inform ed her that Sanmar had

not rece ived any additi onal information from Dr. Grieder and

advised Petitioner that it was Petitioner's responsibility to

obtain a new note from her doctor if she cou ld not work.

Ms. Torres reminded Petitioner that she needed to come in to

discuss her restrictions and possible light - duty work.

30 . Ms. Torres received another call from Petitioner on

November 14, 2011. Ms. Torres reiterated to Petitioner that she

needed to report to work with her restrictions so Sanmar could

attempt to accommodate her appropriately.

31 . Pet itioner reported to work later that same day. She

met with Mr. Rhodes and Ms. Torres to discuss her ability to

work and what accommodations would be necessary. Mr. Rhodes

first advised Petitioner that she would be doing go - backs which

could be performed without the use of her left hand. When

Petitioner expressed concern about her ability to perform that

task, Mr. Rhodes agreed to assign her a temporary light - duty

position auditing the restock until they could review the matter

further. Petitioner agreed to perform the restock work. Also

on November 14, 2011, Ms. Torres rec eived a fax from

Dr. Grieder's office which attached the same November 2, 2011 ,

note regarding Petitioner's restrictions. Nothing in the

November 14, 2011 , fax from D r. Grieder's office changed

Petitioner's work restrictions.

32 . Auditing the restock is not a regular position at

Sanmar , but is one part of the many duties of the inventory

department . In offering this temporary work to Petitioner,

Sanmar eliminated ma ny of the e ssential functions of the O rder

P rocessor job .

33 . Petitioner left the November 14 meeting with

Ms . Torres and Mr. Rhodes and worked for about two hours. After

about two hours, Petitioner apparently fainted and left work in

an ambulance which transported her to the hospital . That was

the last day Petitioner worked for Sanmar.

34 . Petitioner received notes from Dr. Greider dated

November 21, 2011, and December 9, 2011, listing the same light

duty restrictions (i.e., no repetitive gripp ing and pinching, no

repetitive pulling and pushing, no lifting greater than five

pounds, no production keying, and frequent rest breaks ) , valid

for the left hand only. Petitioner also received a note from

Dr. Greider dated January 23, 2012, indicating th at she may

continue previous restrictions until February 6, 2012, at which

time the patient may return to work full duty. However ,

Ms . Hammond , Ms. Thurmond, and Ms . Torres, all testified that

they did not receive this note . Petitioner was seen by an

orthopedic doctor in August 2012. The doctor's note indicate s

that she has a permanent work restriction which preclude s her

from lifting more than 10 to 15 pounds.

Facts regarding disciplin ary action

35 . Through an employee lo an program, Sanmar approves

loans to employees under certain circumstances. In late

December 2010, an incident arose involving Petitioner and her

request for an employee loan.

36 . On December 28, 2010, Ms. Torres he ard Petitioner

speaking in a lou d voice outside of Ms. Torres' office. She

heard Petitioner accusing her assistant at that time, Sandra

Colindres, of refusing to help her with papers required for such

a loan. Petitioner spoke in a tone of voice that Ms. Torres

felt was n ot appropriate for the office. She then asked

Petitioner to meet with her in her office. While in Ms. Torres'

office, Petitioner complained that Ms. Colindres was unwilling

to help her with the loan paperwork. Petitioner had not been

scheduled to work that day.

37 . M s. Torres informed Petitioner that the loan process

had very recent ly been changed, and that the l o a n would need to

be approved by Human Resources if it were determined that there

was a critical need. Ms. Torres considered Petitioner's tone of

voice durin g this conversation in her office to be

disrespectful, demanding and rude.

38 . At the end of this meeting, Ms. Torres told

Ms. Colindres to give Petitioner the employee loan form. When

Petitioner left Ms . Torres' office, Petitioner approached a co -

worke r who was also in the o ffice and began talking in a lou d

voice about what had just happened. Ms. Torres overheard

Petitioner talking about their meeting to another employee and

asked Petitioner to discuss the issue in her office. Ms. Torres

told Petition er that her conduct was disruptive, unprofessional,

and unacceptable. She told Petitioner that she had caused a

disturba nce in the workplace , that Ms . Torres would be informing

the DC manager about this incident, and that Petitioner would

likely be receiv ing corrective action. 4/

39 . Shortly thereafter, Ms . Torres accompanied a pest

control representative to the break room. When they arrived in

the break room, Ms. Torres observed Petitioner telling a group

of employees her version of the events in her office. The

empl oyees dispersed when they saw Ms . Torres enter the break

room. When Ms. Torres turned to leave the break ro om, she saw

Petitioner complaining to yet another group of employees about

the incident. Ms. Torres considered this behavior to be

extremely disruptive. Ms. Torres then asked a supervisor, Tasha

Porter, to instruct Petitioner to leave the premises.

40 . Ms. Torres was relatively new to the company, and she

consulted with Paul Rhodes and Olivia Thurmond to determine

appropriate disciplinary action that would be consistent with

the company's response to similar instances of conduct.

41 . Mr. Rhodes was out of the office from December 27,

2010, through January 2, 2011. On January 3, 2011, Mr. Rhodes

and Petitioner met to discuss the December 28, 2010 , incident.

Tasha Porter also attended the meeting and s upervisor Daniel

Serrano attended the meeting as an in terpreter. Mr. Rhodes also

spoke to and received written statements from Alice Torres,

Sandra Colindres and Tasha Porter regarding the incident .

42 . After reviewing the matter, a decision was made to

give Petitioner a final Written Warning for unprofess ional

conduct and disruptive behavior which had taken place on

December 28, 2010. Petitioner refused to sign the final Written

Warning , did not acknowledge that she committed the actions

described, but acknowledged that the conduct described would be

unac ceptable and that a p erson engaging in such conduct c ould be

terminated. The final W ritten W arning was given to Petitioner

on January 10, 2011, by Mr. Serrano, who also speaks Spanish.

43 . Prior to receiving this final W ritten W arning,

Petitioner had not reported a disability to anyone at Sanmar .

There is nothing in the record to establish or suggest that any

one at Sanmar knew, perceived or regarded Petitioner as having a

disability at that time .

44 . On the evening of April 18, 2011, Group Lead Terri

Andrews was supervising the employees on the lo - bay floor.

Employees were working overtime to get all customer orders

shipped by the end of the day. Ms. Andrews was at the print

station, as Petitioner approached her. Ms . Andrews directed

Petitioner to re port to the pack line. Petitioner told

Ms. Andre ws that she wanted to go home. Ms. Andrews told

Petitioner again to report to the pack line and Petitioner left

the floor. Ms. Andrews described Petitioner as appearing

agitated.

45 . Petitioner arrived at the pack line where Becquer

Rosado, another Group Lead, was directing employees w here they

were needed the most. Mr. Becquer saw Petitioner approaching

and before he could direct her to a position, she put her hand

up in the air, walked past him, and tol d him that she would only

take instructions from Patricia Alonso and not from him. This

was done in front of other employees.

46 . Patricia Alonso was a Department Lead for the pack

line. A Group Lead is superior to a Department Lead because

Group Leads oversee several functions, while Department Leads

only supervise a single function. Employees are expected to

follow the directions of both Group and Department Leads.

47 . Mr. Rosado reported this incident to his supervisor,

Lori Pritc h ard , and complet ed an Employee Concern form the

following day. Ms. Andrews also reported Petitioner's behavior

to Ms. Pritchard, and completed an Employee Concern form on

April 21, 2011. It was that day that Petitioner approached

Ms . Torres to talk about pain that Petitioner was having in her

wrists and hands as more fully discussed in paragraph 6 above.

4 8 . Petitioner was not at work from April 21 until

April 26, 2011. After reviewing the Employee Concern forms,

Ms. Torres met with Petitioner regarding the April 18, 2011 ,

incident. During this meeting, Petitioner denied being

disrespectful to Ms. Andrews and Mr. Rosado. After speaking to

Petitioner on April 26, 2011, Ms. Torres recommended that

Petitioner be terminated for her actions of April 18, 2011,

because Petitioner had just received a final Written W arning for

her behavior on January 10, 2011.

49 . However, Mr. Rhodes decided to give Petitioner another

chance and, instead of terminating Petitioner, decided that

Sanmar would issue a Final Warning Follow U p Discussion Memo to

Petitioner , which was done on May 5, 2011 . This Discussion Memo

reiterat ed that any future violation of company policy by

Petitioner would result in further corrective action up to and

including terminat ion of employment .

50 . During May an d June 2011, and pursuant to San mar's

Voluntary Time Out (VTO) procedure, Petitioner volunteered on

several occasions to go home when production was slow and Sanmar

asked for volunteers. Employees interested in VTO simply had to

write their names on the "Go Home Early Sheet." Sanmar then

selected employees for VTO in the order in which the employees

volunteered to go home early. Petitioner's name appears on the

VTO sheets in evidence, and her name is near the top of the list

on most days . She was not sent home early on days that she had

not signed up for VTO on the Go Home Early sheet.

51 . On June 20, 2011, after leaving the doctor's notes

referenced in paragraph 18 through 20 with Ms. Bat t le,

Petitioner proceeded to the break room where Tasha Por ter, a

supervisor, found her engaged in a conversation with co - workers

while on the clock and not on a break. When Ms. Porter asked

Petitioner why she was in the break room while clocked in,

Petitioner replied that she taking her break. Ms. Porter

report ed this to Ms. Torres. Afterwards, Petitioner returned to

work processing go - backs , although another employee was doing

the keyboarding, as further explained above.

52 . As dis cussed in paragraph 21 above, Ms . Thurmond was

visiting the Jacksonville DC on June 20, 2011. Ms. Torres,

Ms. Thurmond, and Mr. Rhodes discussed the incident in the break

room and decided to issue a final Written Warning to Petitioner

for falsification of time records for this incident of being "on

the clock" while in the break room . This was the same meeting

in which they discussed Petitioner's June 20, 2011 , work

restrictions.

53 . Ms. Torres and Ms. Thurmond issued a final Written

Warning to Petitioner at the same meeting in which they notified

her that Sanmar had approved Petiti oner's request for FMLA

leave. The weight of the evidence shows that this took place on

June 21, 2011.

5 4 . On or around November 3, 2011, prior to Petitioner

going on leave for her second hand surgery, Ms. Torres learned

of an incident involving Petitio ner and her son, Manuel Sanchez,

who also worked for Sanmar. Spe cifically, M s . Torres learned

that Mr. S an chez may have forged Petitioner's signature on a

time - off request which asked for permission to be off work on

October 28 , 2011. After discussing th is with Mr. Sanchez,

Ms. Torres concluded that he had forged his mother's name on the

time - off request at her request. Sanmar considered this to be

falsification of company records. This is an offense for which

Sanmar has disciplined employees in the pas t. 5 /

5 5 . On Friday November 4, 2011, which was Petitioner's

las t day at work before taking lea ve for her second hand

surgery, Ms. Torres discussed the forged time off request with

Petitioner. Petitioner admitted that she had asked her son to

fill out the request and sign her name. At the end of their

conversation, Ms. Torres told Petitioner not t o discuss their

meeting or the situation with anyone, not even Petitioner's son,

because the company was continuing to investigate the matter.

56 . Despite this instruction, Lori Pritchard, a

supervisor, reported to Ms. Torres that Petitioner went directly

to her son and had a heated discussion with him at the print

station. Although Ms. Pritchard was unable to fully understand

their conversation because it was in Spanish, Ms. Pritchard

advised Ms. Torres that she believed they were discussing

Ms. Torres' meeting with Petitioner.

57 . Following this incident, Ms. Torres met again with

Mr. Sanchez and Mr. Sanchez admitted he and Petitioner were

discussing the forged time off request at the print station on

November 4. Ms. Torres, however, was unable to spea k to

Petitioner about this incident until November 14, 2011, when

Petitioner returned to work after her November 7 (second)

surgery.

58 . During the meeting with Petitioner upon her return to

work on November 14, 2011 , (see paragraph 30), Mr. Torres and

Mr . Rhodes told Petitioner the company was still reviewing the

incident regarding the forged time - off request. They advised

Petitioner that they had confirmation she and Mr. Sanchez

discussed the forged time off request at the print station.

While Petitione r denied this, she admitted she talked about the

incident with her son at home , where Mr. Sanchez also resided .

59 . Ms. Torres and Mr. Rhodes believed Petitioner should

be terminated for the November 4 incident, because it involved

an incident of insubord ination, following the previous warnings

of unprofessional conduct issued In January and May 2011.

However, they wanted to discuss their recommendation with

Ms. Thurmond and Marty Rask, Operations Manager, in keeping with

the company's normal practice. Although they planned to talk to

Ms. Thurmond and Mr. Rask and, with their concurrence, terminate

Petitioner later during the day on November 14, they were not

able to do so because of Petitioner unexpectedly became ill on

that day . This began a lengthy l eave of absence from which she

never returned.

60 . Mr. Rhodes and Ms. Torres recommended that Sanmar

terminate Petitioner for her insubordination on November 4, when

she discussed the document falsification issue with her son in

violation of Ms. Torres' i nstructions, a s well as her dishonest

and evasive response on November 14, when Mr. Rhodes and

Ms. Torres spoke to her about the incident.

61 . The final decision to terminate Petitioner was made on

November 30, 2011. However, Sa nmar did not communicate the

termination decision to Petitioner until January 24, 2012. This

delay resulted from circumstances related to Petitioner' s

medical leave and on - going w o r kers' compensation proceedings. 6 /

Sanmar decided to move forward with its November 30, 2011 ,

termination decision.

6 2 . Sanmar's usual practice of communicating employee

termination is to inform the employee in person. However,

Christy Hammond had been communicating with Petitioner and

respected Petitioner's request that she not be required to c ome

to the workplace only to be fired. Therefore, Sanmar decided to

issue the termination letter via mail.

63 . Accordingly, on January 24, 2012, Sanmar sent

Petitioner a termination letter signed by Olivia Thurmond.

Enclosed with the letter was a documen tation form explaining the

reasons for Petitioner's termination , i.e., Petitioner's

insubordination on November 4 and her dishonest and evasive

behavior on November 14, combined with her prior discipline.

CONCLUSIONS OF LAW

64 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fl a. Stat. (2012).

65 . The Florida Civil Rights Act ( FCRA ) states that it is

an unlawful employment practice for an employer to discharg e or

otherwise discriminate against an indivi dual on the basis of

handicap. § 760.10(1), Fl a. Stat.

66 . The FCRA is to be construed in conformity with federal

law. Specifically, courts have looked to the Rehabilitation

Act, 29 U.S.C., et seq. , and the A mericans With Disabilities Act

(ADA), 42 U.S.C. s ection 12101, et seq. , as well as related

regulations and judicial decisions, in construing claims

relating to handicap or disability. Knowles v. Sheriff , 460 F.

App'x 833, 835 (11th Cir. 2012); Chanda v. E ngelhard/ICC , 234

F.3d 1219 (11th Cir. 2000); Brand v. Florida Power Corp . , 633

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

6 7 . In construing the FCRA in accordance with federal law,

the method of proving discrimination is normally analyzed by a

tribunal based upon an approach set forth in the United States

Supreme Court cases of McDonnell Douglas v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); and Texas Dep 't of

C mty . Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.

Ed. 2d 207 (1981). In this method of analysis, the employee has

the burden of establishing by a preponderance of the evidence a

prima facie case of unlawful discrim ination. If the employee

succeeds, a presumption of discrimination arises and the burden

shifts to the employer to produce evidence articulating a

legitimate, nondiscriminatory reason for its action. If the

employer produces such evidence, the employee m ust prove that

the employer's proffered reason was not the true reason for the

employment decision, but was, in fact, a pretext for

discrimination. The burden shifting analysis of employment

discrimination cases applies to the ADA and, therefore, FCRA

cla ims. Holly v. Clairson Indus., L.L.C. , 492 F.3d 1247, 1255

(11th Cir. 2007): and s ee Dep ' t of Cor r. v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of

proof in discrimination cases).

68 . In this case, Petitioner's burde n is to establish a

prima facie case of employment discrimination by proving by a

preponderance of the evidence (1) that she is a handicapped or

disabled individual under the ADA; (2) that she was a qualified

individual at the relevant time, i.e., that she could perform

the essential functions of the job in question with or without

reasonable accommodations; and (3) that she was discriminated

again st because of her handicap or disability. Holly v.

Clairson Indus., L.L.C. , supra ; Lucas v. Grainger , 257 F.3d

1249, 1255 (11th Cir. 2001), ( citing Reed v. Heil , 206 F.3d

1055, 1061 (11th Cir. 2000) ) . If Petitioner is unable to

establish a prima facie ca se, the burden of producing rebuttal

evidence does not shift to the employer , and judgment should be

entered for the employer. Brand , supra , 633 So. 2d at 510 - 511.

69 . In the event that Petitioner does meet her burden of

proof, the employer then has the burden of showing that the

Petitioner's handicap is such that it cannot be accommodated or

that the proposed accommodation is unreasonable because it

results in an undue hardship on defendant's activities. Brand ,

supra , at 511 - 512. The plaintiff bears the burden of

identifying an accommodation and demonstrating that the

accommodation allows her to perform the essential functions of

the job. Lucas v. Grainger , supra , at 1255 - 1256.

70 . Once the employer places in evidence valid reasons for

the challenged action, Petitioner cannot remain silent, but must

rebut the employer's position, if she can. Cleveland v. Home

Shopping Network, Inc. , 369 F.3d 1189, 1193 (11th Cir. 2004);

Brand , supra , at 512. In this connection, the ultimate burden

of persua ding the trier of fact that the employer intentionally

discriminated against Petitioner remains at all times with the

employee (Petitioner). Id.

71 . The ADA defines a disability as a physical or mental

impairment that substantially limits one or more of the major

life activities of an individual, a record of such impairment

or being regarded as having such an impairment. 42 U.S.C.

§ 12102(2); Rossbach v. City of Miami , 371 F.3d 1354, 1357 (11th

Cir. 2004) .

7 2 . Major life activities are defined as "functions such

as caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning and working." Hilburn v.

Mu rata Elec. N . Am . , Inc. , 181 F.3d 1220, 1227 (11th Cir. 1999) .

The inability to perform one particular type of job does not

constitute a substantial limitation on one's ability to work.

Rossbach v. City of Miami , supra , at 1359; Aucutt v . Six Flags

over Mid - America , 85 F.3d 1311 (8th Cir. 1996).

73 . Applying the above case analysis to the instant f a cts ,

it is not entirely clear whether Petitioner's medical condition

of carpal tunnel syndrome qualifies as a handicap or disability

under the law. Petitioner's treating physician(s) did not

testify. However, Sanmar did provide what it described as a

reasonable accommodation , at least on a temporary basis, under

the ADA when it approved FMLA leave. It appea rs that San mar did

regard her as having a d isability at least for that period of

time.

74 . Assuming that Petitioner meets the first prong of

establishing a prima facie case, the second prong requires

Petitioner to establish that she is a qualified individual, who

could perform the essential functi ons of the job with or without

an accommodation.

75 . The Eleventh Circuit addressed the issue of

determining what functions of a particular job are deemed to be

essential:

The ADA provides that in determining what

functions of a given job are deemed to be

essential, 'consideration shall be given to

the employer's judgment . . . and if an

employer has prepared a written description

before advertising or interviewing

applicants for the job, this description

shall be considered evidence of the

essential fun ctions of the job. ' 42 U.S.C.

§ 12111(8).

Holbrook v. City of Alpharetta, G a. , 112 F.3d 1522, 1526 (11th

Cir. 1997).

76 . The Order Processor job requires many activities that

Petitioner could not perform. When it off ered Petitioner

temporary light - duty work, it eliminated ess ential elements of

the position , i.e., repetitive gripping and pinching, pulling

and pushing, and lifting as found in the job description for the

Order Processor job .

77 . Sanmar placed Petitioner on temporary work duty after

she reported her injury. An employer is not required to make

fundamental alterations in its program or create a new job for

the plaintiff /petitioner . Brand , supra ( citing Alexander v.

Choate , 469 U.S. 287, 300 (1985) ) ; Sch . Bd . of Nassau County v.

Arline , 480 U.S. 273 (1987).

78 . Accordingly, as to the second prong of a prima facie

case, Petitioner has failed to establish that she could perform

the essential functions of the job of Order Processor with or

without reasonable ac commodations.

79 . As to the third prong of the prima facie test,

Petitioner did not prove that she was discriminated against

because of her handicap or disability.

80 . Even if Petitioner established a prima faci e case,

Respondent has offered legitima te, non - discriminatory reasons

for its actions. The days that Petitioner left work early were

a result her request to do so as part of the VTO process. The

final written warnings were issued because of distinct actions

of Petitioner which were found to b e unacceptable to the

company's management . That is, the January 10, 2011 , written

warning was issued because of behavior directed to the company's

Human Resources Manager; the final written warning dated May 5,

2011 , was issued as a result of this type o f behavior to two

Group Leads; and the final written warning dated June 21, 2011,

was for falsification of records.

81 . Finally , Petitioner's termination was for discussing

an ongoing investigation with her son in violation of directions

given to her, and the accumulation of past behavior that

resulted in disciplinary action, including termination. Whether

the company's request th at she not discuss th is matter with her

son was realistic or not is irrelevant. "The employer may fire

an employee for 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. " Dep't of Corr. v.

Chandler , supra at 1187 ( quoting Nix v. WLCY Radio/Rahall

Communic ' n , 738 F. 2d 1181, 1187 (11th Cir. 1984) ) .

82 . Finally, Petitioner did not meet her burden of proving

that Sanmar's proffered reasons for its actions wer e not the

true reasons but were, in fact, a pretext for unlawful

discrimination. While the timeframes of her injuries were

intertwined to some degree with the timeframes of the events

leading up to her termination, the undersigned is not persuaded

that Sa nmar disciplined and terminated Petitioner's employment

because of her disability. In summary, Petitioner has failed to

carry her burden of proof that Respondent engaged in disability

discrimination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Reli ef filed by

Petitioner, Teresa Urbina .

DONE AND ENTERED this 30 th day of November , 20 12 , in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of November, 2012 .

ENDNOTES

1/ On August 1, 20 12 , Petitioner filed a r equest for an

interpreter, as Petitioner's primary language is Spanish and she

does not speak much English . This request was relayed to FCHR,

requesting that an interpreter be provided. By e - mail dated

August 13, 2012, FCHR responde d that "the Commission does not

provide interpreters for hearings outside the Commission.

Ms. Urbina will have to get an interpreter for the hearing."

Petitioner is pro se. The Division made arrangements to provide

a Spanish interpreter at the hearing t o afford Petitioner due

process.

2/ Ms. Torres, Ms. Thurmond, and Mr. Rhodes also discussed a

pending disciplinary matter regarding Petitioner, which will be

addressed later in this O rder.

3/ Dr. Greider's patient's notes reveals that as of her office

visit with him on October 17, 2011, he "was not going to place

any work restrictions on her at this point."

4 / Ms. Torres speaks Spanish and was able to converse with

Petitioner without an interpreter.

5/ Foll owing Sanmar's investigation of this incident,

Mr . Sanchez received a final Written Warning for falsification

of records on November 9, 2011.

6/ Sanmar and Petitioner, through their respective workers'

compensation counsel, were in the process of negotiating a

settlement of Petitioner's workers' compensation claim. This

would have included Petitioner's agreement to sign a release of

all claims and resign her employment, which would have obviated

the need to terminate Petitioner. These settlement

negotiations, which were ultimately unsuc cessful, are only

relevant as explanation of the delay in informing Petitioner of

her termination.

COPIES FURNISHED :

Teresa Urbina

Apartment 1102

1535 Blanding Boulevard

Middleburg, Florida 32068

Michael G. Prendergast, Esquire

Lindsay Dennis Swiger, Esquire

Holland and Knight, LLP

50 North Laura Street , Suite 3900

Jacksonville, Florida 32202

Cheyanne Costilla, Interim Gen eral Co unsel

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 .