15-005979 Susan Sweatt vs. Walt Disney World Status: Closed Recommended Order on Thursday, June 16, 2016.

Summary: Petitioner failed to prove she was terminated because of her disability or age. Instead, the evidence established that she was terminated because she falsified her time records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN SWEATT,

Petitioner,

vs. Case No. 15 - 5979

WALT DISNEY WORLD,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 24, 2016, an evidentiary hearing was co nducted by

video teleconference, with sites in Orlando and Tallahassee,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Amber Nichole Williams, Esquire

Coye Law Firm

730 Vassar Street

Orlando, Florida 32828

For Respondent: Patrick M. Muldowney, Esquire

Baker and Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent terminated

PetitionerÓs employment because of her disability or age.

PRELIMINARY STATEMENT

On April 2, 2015, Susan Sweatt (Petitioner) filed with t he

Florida Commission on Human Relations (FCHR) a charge of

discrimination against her former employer, Walt Disney World

(Respondent or Disney), in which she alleged that she was

terminated because of her disability and age. FCHR conducted an

investigati on, after which it determined there was no reasonable

cause to believe that an unlawful employment practice occurred.

Petitioner timely requested an administrative hearing, and FCHR

referred the case to DOAH to conduct the requested hearing.

The hearing w as first scheduled for January 14, 2016, to be

conducted by video teleconference with sites in Tallahassee and

Orlando. PetitionerÓs unopposed motion for continuance was

granted, and the video teleconference hearing was rescheduled for

March 24, 2016.

Pri or to the hearing, the parties filed a Joint Pre - Hearing

Stipulation, in which they stipulated to a number of facts and

legal conclusions. The stipulations have been incorporated in

the findings and conclusions below, to the extent relevant.

At the hearin g, Petitioner testified on her own behalf, and

also presented the testimony of Rodney Jones and William Bohn.

PetitionerÓs Exhibits 1 through 3 were admitted in evidence.

Respondent presented the testimony of Christine Neuberg,

Susan Morgan, Jennifer Fall on ( nee Zignauskas), 1/ Kathy Behrens,

and Daniel Wilkes. RespondentÓs Exhibits 1 through 16 were

admitted in evidence.

The parties offered Joint Exhibit 1, which was admitted.

At the conclusion of the hearing, post - hearing deadlines

were discussed. A tra nscript was ordered, and the parties

jointly requested that they be afforded 20 days after the filing

of the transcript in which to file their proposed recommended

orders (PROs). Their request was granted.

The two - volume Transcript of the final hearing wa s filed on

April 19, 2016. Both parties filed PROs one day after the

deadline; however, both PROs have been fully considered in the

preparation of this Recommended Order. 2/

FINDING S OF FACT

1. Petitioner was employed by Disney from October 1996

until Jan uary 19, 2015.

2. At the time her employment was terminated, Petitioner

was 60 years old, and she had been working as a concierge at the

Old Key West Resort (OKW) for the past seven or eight years.

3. PetitionerÓs job performance was considered Ðadequat e.Ñ

Over her many years working for Disney, she received some awards ,

as well as some performance - related discipline. However, her

termination was not related to her performance as a concierge.

4. The incident giving rise to her termination occurred o n

January 2, 2015. That day, Disney records show that Petitioner

was scheduled to work for eight hours: her work shift was to

begin by clocking in at 8:45 a.m.; she was allotted a 30 - minute

uncompensated lunch break from 1:45 p.m. to 2:15 p.m.; and then

she was scheduled to end her workday by clocking out at 5:15 p.m.

5. OKW employees such as Petitioner documented their work

hours two different ways: first, they employed a Ðcard swipeÑ to

clock in and out at a card - reader time clock located inside the

e mployee entrance to OKW; second, on a printed daily schedule

worksheet (also called a P/U sheet) that listed employee names

and each employeeÓs scheduled Ð in Ñ time and Ð out Ñ time, in blank

columns for ÐactualÑ times next to the scheduled times, the

employe es would handwrite their actual in times and out times,

and initial the entries.

6. Petitioner left her home on time on the morning of

January 2, 2015, 3/ and recalled no particular incidents during her

commute that would have made her late. However, Disn ey had been

very busy during the holiday weeks leading up to January 2, 2015,

and Petitioner acknowledged that it had been very difficult to

find a parking spot. There is open parking in several parking

areas adjacent to OKW, with spots available for use by guests and

employees alike.

7. Petitioner was unable to quickly find a spot in the

parking areas nearest to the OKW employee entrance. Before

proceeding to the next closest parking area, she drove to the

front of the OKW employee entrance. She stoppe d her white SUV in

the road and put her emergency flashers on, not because there was

a vehicle emergency, but presumably to call attention to her

vehicle stopped in the middle of the road so another vehicle

would not hit it. Petitioner then left her vehic le and went in

the employee entrance and swiped her employee card to clock in.

8. Rather than proceed to work, as represented by the act

of clocking in, Petitioner went back outside to her vehicle, and

drove off to go find a parking spot.

9. By leaving h er vehicle in the middle of the road to go

inside and clock in, Petitioner managed to clock in at 8:44 a.m.,

one minute before she was scheduled to clock in. Had Petitioner

not clocked in until after she had parked her vehicle, she would

have clocked in l ate. As she admitted, the reason she parked in

the middle of the road, put her flashers on, and ran inside to

clock in was Ðso I wouldnÓt be late.Ñ

10. Petitioner repeated the representation that she began

her workday on time when she handwrote on the da ily schedule

worksheet for January 2, 2015, next to her scheduled ÐinÑ time of

8:45 a.m., that her actual ÐinÑ time was 8:45 a.m.

11. PetitionerÓs card swipe to clock in at 8:44 a.m. and

her handwritten entry on the daily schedule worksheet that she

was i n at 8:45 a.m. were false representations by Petitioner on

her employee time records.

12. PetitionerÓs clocking - in actions -- stopping her vehicle

in the middle of the road with emergency flashers on, running

into the employee entrance to clock in, and then getting back in

her vehicle and driving off -- were observed by two OKW employees.

13. One eyewitness was Maniala Lucien, the OKW front desk

supervisor. Ms. Lucien reported what she observed to Jennifer

Zignauskas, and also reported that another employe e had witnessed

the incident. Ms. Zignauskas was one of six OKW Ðguest

experienceÑ managers to whom cashiers, concierges, and other

staff report. Ms. Zignauskas was in her office when she was

informed of the incident, and she went to the office next to h ers

to report the matter to Daniel Wilkes, the OKW guest service

operations manager with supervisory authority over the guest

experience managers, including Ms. Zignauskas. Mr. Wilkes

instructed M s. Zignauskas to collect statements from witnesses

and from Petitioner.

14. Ms. Zignauskas obtained a witness statement from

Ms. Lucien. She then approached Susan Morgan -- an OKW cashier

working that morning -- to ask whether she had seen anything that

morning that might have been unsafe. Ms. Zignauskas did not

de scribe what might have been unsafe, nor did she name

Petitioner. Ms. Morgan responded by asking Ms. Zignauskas

whether she meant something like Ðthe SUV that was parked outside

in the middle of the road.Ñ Ms. Zignauskas said yes, and asked

if Ms. Morgan would be able to write a witness statement about

what she saw. Ms. Morgan said she would.

15. The procedures employed and steps taken to investigate

the reported incident were standard means employed by

RespondentÓs managers to investigate a report of an employee

matter, such as Ms. LucienÓs report of PetitionerÓs feigned

vehicle emergency. Petitioner contends that the question posed

to Ms. Morgan regarding whether she saw anything unsafe that

morning was unduly suggestive, apparently conceding that

Peti tionerÓs feigned car emergency was, indeed, unsafe. However,

the question does not suggest the answer. The question would not

have enabled Ms. Morgan to describe an SUV parked in the middle

of the road if she had not actually witnessed it. And nothing i n

the question would have implicated Petitioner, whose actions were

described in the witness statement written by Ms. Morgan.

16. Near the end of the day, Ms. Zignauskas asked to see

Petitioner, after arranging to have a room available and a union

shop steward, William Hause (who was a fellow concierge at OKW),

present. Ms. Zignauskas asked Petitioner to provide a statement

regarding what happened that morning with regard to clocking in

and parking her car. Ms. Zignauskas provided a blank witness

stat ement form and left the room so that Petitioner could confer

with Mr. Hause and provide the statement regarding that morningÓs

incident. Petitioner was entitled to that shop steward

representation, since she was the employee being investigated. 4/

17. P etitionerÓs statement on January 2, 2015, was as

follows, in its entirety:

Because of the holiday crowd [and] the resort

being at 100%, the past few weeks have been

very difficult to find a parking spot. Even

coming in earlier you have to drive around

[an d] around looking for a parking spot.

This morning the lots surrounding the area

were all full [and] upon a second trip around

I left my car running [and] put my hazards on

outside the back door, ran inside [and]

clocked so I wouldnÓt be late [and] drove

around till I found a guest who pulled out of

a spot near bldg. 23 [and] came into work.

Guest[s] have commented that they also didnÓt

have enough parking spots; [and] theyÓve

complained when cast members park in ÐtheirÑ

spots in designated parking areas.

18. PetitionerÓs statement, at least with respect to her

feigned vehicle emergency and clocking - in actions, were

corroborated by the statements of the two eyewitnesses.

Ms. Morgan stated that when she was walking to the employee

entrance, she Ðnotice d a white SUV parked just before the bridge

on Peninsular Road. . . . [T] he vehicle had its flashers on but I

could not see if anyone was in the vehicle. As I got closer to

the entrance door, I saw another cast member, Susan Sweatt, come

out of the same d oor and cross the street. She got into the

white SUV on the driverÓs side and drove over the bridge.Ñ

19. Similarly, Ms. Lucien, the eyewitness who reported the

incident to Ms. Zignauskas, wrote that she saw PetitionerÓs car

parked Ðin the middle of the street with the emergency light on,Ñ

and then saw Petitioner cross the street to move her car. She

stated: ÐI guess she park[ed] and [went to] clock in[; I] am not

sure why she did that.Ñ

20. At Mr. WilkesÓ direction, Ms. Zignauskas provided the

stat ements to RespondentÓs Labor Relations Department. Labor

Relations requested some follow - up investigation. In particular,

supplemental witness statements were requested, to address what

happened after Petitioner parked her vehicle, and what time

Petition er arrived in the lobby and assumed a concierge station. 5/

21. Petitioner offered several different versions of what

happened after she found a parking spot. According to her

Petition for Relief and her January 2, 2015, witness statement,

she went right to work after parking her vehicle. According to

her PRO, however, she remained in the vehicle to do breathing

exercises to overcome a panic attack. Her testimony at hearing

seemed to indicate that after she parked her vehicle, she

proceeded into the OKW building, and called her husband on her

cell phone either before or after entering the building so that

he could calm her down. Yet another variation was that

Petitioner may have gone into the break room to do breathing

exercises after entering the build ing, before Ðgoing onstage.Ñ 6/

22. In addition to speaking to her husband and possibly

going to the break room, Petitioner proceeded through the work -

related steps necessary to equip herself to go onstage and begin

providing services to OKW guests. These steps included storing

her personal items, getting her keys, retrieving her laptop,

getting her bank in the bank - out room, and counting her bank to

reconcile it with the records.

23. It was expected that a concierge such as Petitioner

would be able to co mplete the necessary work steps to assume a

concierge station in OKWÓs lobby within 15 minutes after clocking

in. Therefore, Petitioner would have been expected to assume a

concierge station by 9:00 a.m.

24. Instead, it was 9:11 a.m. before Petitioner lo gged onto

the computer system; it may have been later than that when she

actually assumed a concierge station in the lobby.

25. Petitioner acknowledges that she was late, suggesting

that she was onstage by 9:11 a.m., and arguing that such a slight

episode of being tardy should be excused. However, Petitioner

did not admit that she was late in her time records. Instead,

she falsely represented on two different time records that she

was on time.

26. Petitioner contends that she ÐflexedÑ her own time and

m ade up for being late, by taking only 30 minutes for lunch when

she would normally be allowed an hour. Her time records do not

bear that out; they show that her scheduled lunch break on

January 2, 2015, was from 1:45 p.m. to 2:15 p.m. -- 30 minutes.

27. Pe titioner contended in her Charge of Discrimination

that Disney employees often ÐflexÑ their time to make up for

being late, by shortening their lunch breaks, and that this was

permissible with a supervisorÓs approval. Petitioner offered no

evidence that t his was an actual practice that was approved by

Respondent, either expressly or tacitly. Petitioner offered no

evidence that she informed a supervisor that she was late on

January 2, 2015, much less that a supervisor approved her

ÐflexingÑ her time to com pensate for being late.

28. Due to a guest situation near the end of the day on

January 2, 2015, Petitioner clocked out and signed ÐoutÑ on the

P/U sheet at 5:30 p.m., when her scheduled out time was 5:15 p.m.

The result was 15 minutes of overtime, which had to be approved

by a supervisor. In a ÐcommentsÑ section on the P/U sheet for

that day, Petitioner handwrote: Ðextend per [guest] situation

per Maria.Ñ Maria OÓNeil was an OKW guest experience manager and

one of PetitionerÓs immediate supervisors.

2 9. The P/U sheet does not reflect in the comments section

or anywhere else that Petitioner was actually late to work on

January 2, 2015, or that Maria OÓNeil or another manager had

approved Ðflex timeÑ to make up for the late start. PetitionerÓs

false re presentation on her time records resulted in her being

paid time - and - a - half pay for a quarter - hour of overtime on

January 2, 2015, when, in fact, she did not work more than eight

hours that day.

30. On January 19, 2015, PetitionerÓs employment was

termina ted for falsifying her time records. William Bohn was the

union steward representing Petitioner at the meeting at which she

was informed of her termination.

31. Petitioner contends that the incident on January 2,

2015, was used as a pretext, because othe r Disney employees have

engaged in similar conduct and were treated more favorably.

Petitioner offered no proof of a single person who engaged in the

same or similar conduct who was not terminated.

32. Instead, Respondent offered evidence of several form er

employees w ho w ere terminated for falsifying company documents.

While the details were scant, the evidence certainly did not

support PetitionerÓs claim that she received disparate treatment.

33. Petitioner ended up unwittingly offering the most

compel ling evidence to refute her position that others were not

treated as harshly for similar offenses. Mr. Bohn was called as

a witness by Petitioner at the hearing. His testimony, elicited

by Petitioner, was as follows:

Q: Okay. Were you involved as a uni on

steward at any point on Mrs. SweattÓs behalf?

A: Yes, I was.

Q: Do you recall being involved in an

incident that occurred in January of 2015?

* * *

A: . . . Yes.

Q: Can you tell us briefly the nature of

that incident?

A: From what I remem ber it was -- it had

something to do with her parking illegally,

coming in and clocking in while her car was

parked in an illegal spot. . . . And parking

it Î

* * *

Q: Okay. Mr. Bohn, what was your reaction

to DisneyÓs decision to terminate Ms. Swe att

on that day?

A: I was not surprised.

Q: Okay. And can you tell us why that was?

A: Because of what had happened, what she

had done and the statements that I had seen

from the other cast members that had Î that

had noticed what she had done.

* * *

Q: Are you aware of any incidents involving

a Disney employee clocking in and then not

reporting to their shift?

A: Yes.

Q: Okay. And were those employees

terminated?

A: Yes. The one I was -- the one I was

involved with was terminated.

Q: Are you aware of any employees who had

done that who were not terminated?

A: No.

(Tr. 110 - 114).

34. After Petitioner was terminated, the union filed a

grievance on her behalf, protesting her termination as ÐunjustÑ

in violation of Article 18 of the u nion contract (addressing

discipline, standards of conduct, and discharge), and Ðall other

[articles or sections of the union contract] that may apply.Ñ

35. Article 18 of the Union Agreement provides than an

employee may be discharged for just cause, whic h includes:

ÐFalsification of records, such as medical forms, time cards, or

employment applications.Ñ Art. 18, £ 7(c), Union Agreement.

Similarly, RespondentÓs Employee Policy Manual provides:

Certain actions by employees can result in

immediate termin ation. Such actions include,

but are not limited to:

* * *

L. Making false entries on, or material

omissions from, Company records.

M. Altering or falsifying, or materially

omitting information from, any time record[.]

Employee Policy Manual at 55 - 56 (Jan. 2004).

36. Consistent with the tenor of the policy manual,

Respondent presented evidence reflecting its zero tolerance for

falsifying records. Petitioner offered no persuasive evidence

that this policy was inconsistently applied.

37. Petit ionerÓs grievance was heard through all four steps

of the grievance process, and she did not prevail in her claim

that her termination was unjust. The last step was consideration

by a Joint Standing Committee comprised of a Disney

representative and a Uni on representative, both of whom denied

the grievance.

38. During the course of the grievance process, for the

first time Petitioner disclosed to Respondent that her actions on

January 2, 2015, should be excused as an accommodation under the

Family Medical Leave Act (FMLA).

39. Throughout her tenure at Disney, Petitioner sought and

received both leave and workplace accommodations under the FMLA.

Insofar as relevant to this case, Petitioner has suffered from

post - traumatic stress disorder (PTSD) for the la st ten years.

She and her husband witnessed a motorcycle accident on a highway

ten years ago, and they stopped to aid the motorcyclist who died

on the scene. Since that time, Petitioner experiences

intermittent panic attacks. Sometimes, at the onset of an

attack, she is able to calm herself down with breathing

exercises, or her husband can calm her by talking her down,

before a full - blown attack sets in.

40. The evidence established that Respondent was very

accommodating of PetitionerÓs need for intermi ttent leeway,

whether it be actual leave (coming in late, leaving early, or

missing one or more whole days), or simply a few moments to go

ÐoffstageÑ to collect herself.

41. In 2006, Petitioner applied to Respondent and was

approved for intermittent FMLA leave, which she could invoke when

needed to deal with her PTSD. Petitioner has applied for and

renewed the intermittent FMLA leave approval since then, so that

it has been in effect continuously from 2006 through the date of

her termination.

42. During her grievance process, Petitioner acknowledged:

ÐPrior to January 19th[, 2015], reasonable accommodation had been

provided to me by a compassionate management team for my

disability.Ñ

43. Petitioner elaborated on these accommodations at the

hearing. She explained that everyone she worked with was aware

of her need for FMLA. If she had a panic attack before her shift

started, she Ðwould call in the call - in line and just say IÓm

calling FMLA late.Ñ This would occur several times a month.

44. If Petition er was already at work when she experienced

a panic attack, she would go ÐoffstageÑ and she Ðwould tell the

front desk adviserÑ and also let Ða manager know if one was

available. . . . [I f ] it was bad enough, the manager would have

to count my bank and I j ust would have to go home.Ñ

45. On January 2, 2015, however, Petitioner did not call

the call - in line to invoke her right to ÐFMLA lateÑ leave. She

did not inform the front desk adviser/supervisor, Maniala Lucien,

that she needed to take FMLA leave for a ny part of her workday,

nor did she inform a manager at any time during the day that her

workday was shortened somewhat because she had needed to take

some FMLA leave time that morning.

46. Petitioner claimed, but did not prove, that a Disney

change in po licy described to her by three different managers

would have required her to call in at least 30 minutes before her

shift was to begin if she was going to be late. Instead, the

evidence established only that there was a change in general

policy to require employees to call in at least 30 minutes before

the scheduled start time of their workday if they were going to

be absent that day. Without the 30 - minute advance notice for an

absence, the employee absence had the potential of being treated

as a Ðno - call , no show.Ñ 7/

47. Even if Petitioner was under the misimpression that

there was a change in policy that applied to late arrivals as

well as absences, in this context of an unanticipated need to

invoke approved FMLA leave, it is difficult to imagine any ne w

general employee policy taking precedence over the need to claim

FMLA leave to which an employee is entitled. See, e.g. , Union

Agreement, Art. 17, £ 6 (ÐThe Company and the Union acknowledge

that the provisions of the [FMLA] apply to the employees worki ng

under this Agreement. Thus, nothing in this Agreement shall be

construed as being inconsistent with the requirements of the

[FMLA]. In this regard, the Company and the Union commit to meet

to resolve potential conflicts between the [FMLA] and the

Agre ement.Ñ).

48. The timing of PetitionerÓs assertion of this claim, and

the inadequacy of her explanations for not asserting it sooner,

cast doubt on the credibility of her claim. But even if the

belated claim of a need for FMLA leave were accepted, that c laim

would not excuse falsifying time records.

49. Petitioner failed to explain why she did not invoke her

right to FMLA leave on January 2, 2015, if not by calling in on

the call - line, then at least by explaining to the front desk

adviser, Ms. Lucien, wh en she took the station right next to her

sometime after 9 :00 a.m., that she was late going onstage because

she needed some FMLA time. Petitioner could have offered that

same explanation to one of the managers who were there that day.

While Petitioner cl aims she could not find one when she arrived

late, she could have reported the matter later in the day.

50. While invoking FMLA would not excuse PetitionerÓs

feigned vehicle emergency to clock in just under the wire before

continuing her search for a park ing spot, perhaps Petitioner

could have mitigated the consequences of her errant card swipe by

honestly writing her actual ÐinÑ time on the P/U sheet, and

noting in the comment section that she was ÐFMLA late.Ñ Indeed,

Petitioner was able to find a manage r to approve her ÐovertimeÑ

when she stayed 15 minutes past the end of her scheduled shift to

address a guest situation; she could have informed that same

manager that the 15 extra minutes at the end of the day should be

offset by 15 minutes (or 30 minutes ) at the beginning of the day,

because she was ÐFMLA late.Ñ

51. Petitioner did not mention that she needed to invoke

her right to FMLA leave in her witness statement on January 2,

2015, nor in the supplemental witness statement on January 7,

2015. Petiti oner sought to defend this omission two different

ways. First, she said was tired and just wanted to go home, so

she just answered the specific question asked of her. The

January 2, 2015, statement itself refutes this claim. More than

half of the 13 lin es of her statement dealt with matters other

than what happened that morning. Petitioner put quite a bit of

effort into attempting to excuse her behavior by pointing the

blame elsewhere, embellishing on the holiday parking problems and

relaying complaints she had heard from guests about insufficient

parking spots and about employees parking in their spots.

52. Petitioner also sought to explain the omission by

stating that FMLA leave was a private matter, and that it was

none of the managersÓ business. That claim is inconsistent with

PetitionerÓs testimony regarding the procedures she followed to

take FMLA leave: she would either call the call - in line, or

inform the front desk adviser/supervisor and a manager that she

was FMLA late, needed FMLA time d uring the day, or needed FMLA to

leave early. As confirmed by one manager, Mr. Jones, although

Petitioner was not required to inform a manager of the medical

condition she was experiencing, she was required to inform a

manager that she needed to take FMLA leave or call in FMLA late.

53. Also inconsistently, Petitioner testified to an

apparent change of heart sometime after January 7, 2015,

regarding this so - called private matter that was none of the

managersÓ business. According to Petitioner, she asked Maria

OÓNeil for a blank witness statement form. She said that she

intended to supplement her prior witness statements so she could

Ðadd the additional information about my FMLA.Ñ Petitioner said

she did not get a form from Ms. OÓNeil (who did not refus e the

request; apparently she just did not follow through). Petitioner

did not communicate the additional information regarding FMLA by

any other means (e.g., verbally or in a written statement on a

blank sheet of paper) to any supervisor or manager, to t he office

that processed her FMLA applications, or to anyone else at Disney

prior to her termination on January 19, 2015.

5 4 . It was not until after Petitioner was terminated and

the union filed a grievance on her behalf that Petitioner

apparently wrote t o the union representative to explain that she

needed FMLA leave time that morning because she was feeling

panicky when she could not find a parking spot right away. The

written explanation, dated February 10, 2015, was provided to

Respondent in the griev ance proceeding. 8/ That was the first time

that Respondent was informed, formally or informally, that

Petitioner needed FMLA time on the morning of January 2, 2015.

5 5 . Even more belatedly, Petitioner raised for the first

time in her filings with FCHR th e claim that she was terminated,

if not because of her disability, then because of her age.

5 6 . No credible evidence was offered to substantiate the

charge of age discrimination. Petitioner offered only a few

instances in which she interpreted comments as age - related. In

each instance, her interpretation was conclusively refuted by the

more credible testimony of the persons to whom the comments were

attributed.

Ultimate F indings of F act

5 7 . Petitioner failed to prove that she was terminated

because of her handicap.

5 8 . Petitioner failed to prove that she was terminated

because of her age. 9/

5 9 . Instead, the credible evidence established that

Petitioner was terminated because she falsified her time records.

Though that result may be viewed as harsh, Petitioner failed to

prove that she was singled out for such harsh treatment or that

others who were not in PetitionerÓs protected classes engaged in

the same or similar conduct and were treated more favorably. To

the contrary, the only evidence offered o n the subject suggested

that Respondent was equally harsh in its response to similar

actions by others. Thus, while RespondentÓs actions may have

been harsh, they were not discriminatory.

CONCLUSIONS OF LAW

60 . The Division of Administrative Hearings has

jurisdiction over the parties and the su bject matter of this

proceeding, pursuant to sections 120.569, 120.57(1), and

760.11(7), F lorida Statutes (2015) . 10/

6 1 . Section 760.10(1) provides that it is an unlawful

employment practice for an employer to disc harge or otherwise

discriminate against an employee Ðbecause ofÑ the e mployeeÓs age

or handicap/disability.

6 2 . Respondent is an "employer" within the meaning of the

Florida Civil Rights Act (FCRA). § 760.02(7), Fla. Stat.

6 3 . FCHR and Florida court s have determined that federal

discrimination law should be used as guidance when construing the

FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

6 4 . To establish a prima facie case of age discrimination

under the FCRA, Petitioner must show that: (1) she was a member

of a protected age group; (2) she was subject to an adverse

employment action; (3) she was qualified to do the job; and

(4) that she w as replaced by, or treated less favorably than, a

person of a different age. McQueen v. Wells Fargo , 573 Fed.

Appx. 836, 839 (11th Cir. 2014); see Ellis v. Am . Aluminum ,

Case No. 14 - 5355 (Fla. DOAH July 14, 2015; modified , Fla. CommÓn

on Human Relations, Sept. 17, 2015), F O at 2 - 3 (noting different

interpretation of FCRA regarding whether comparator must be

younger or just of a different age ).

6 5 . To establish a prima facie case of handicap

discrimination under the FCRA, Petitioner must show that:

(1) sh e has a handicap, or is regarding as having a handicap;

( 2 ) she is a qualified individual; and (3) she was unlawfully

subjected to discrimination because of her handicap (used

interchangeably with disability ) . St. Johns Cnty. Sch. Dist. v.

OÓBrien , 973 So . 2d 535 (Fla. 5th DCA 2007); Corning v. LodgeNet

Interactive Corp. , 896 F. Supp. 2d 1138, 1144 (M.D. Fla. 2012).

6 6 . A ÐhandicapÑ is an impairment that substantially limits

a major life activity. Lenard v. A.L.P.H.A. ÐA Beginning,Ñ Inc. ,

945 So. 2d 618 , 622 (Fla. 2d DCA 2006).

6 7 . Petitioner proved that her PTSD constitutes a handicap

or disability within the meaning of the FCRA, or at least that

she was regarded as having a handicap or disability by Respondent

since 2006. Respondent does not contend otherwise in its PRO.

6 8 . Petitioner offered no direct evidence to prove that she

was terminated because of age or disability . Accordingly, in the

absence of any direct evidence of discrimination, a finding of

discrimination, if any, must be based on c ircumstantial evidence.

6 9 . The shifting burden analysis established by the U.S.

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

(1973), and Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), applies to this circumstan tial evidence -

based discrimination claim. Under this well - established model of

proof, the complainant bears the initial burden of establishing a

prima facie case of discrimination. If Petitioner establish es a

prima facie case, the burden shifts to the em ployer to articulate

a legitimate, non - discriminatory explanation for the employment

action. See Dep't of Corr. v. Chandler , 582 So. 2d 1183, 1186

(Fla. 1st DCA 1991) (discussing shifting burdens of proof in

discrimination cases under McDonnell and Burdin e ). The employer

has the burden of production, not persuasion, and need only

articulate that the decision was non - discriminatory. Id. ;

Alexander v. Fulton Cnty., Ga. , 207 F.3d 1303, 1339 (11th Cir.

2000). Petitioner must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. Dep't of Corr. v. Chandler , supra ,

at 1187. Petitioner must satisfy this burden by showing directly

that a discriminatory reason, more likely than not, motiva ted the

decision, or indirectly, by showing that the proffered reason for

the employment decision is not worthy of belief. Id. ; Alexander

v. Fulton Cnty., Ga. , supra .

70 . ÐAlthough the intermediate burdens of production shift

back and forth, the ultimat e burden of persuading the trier of

fact that the employer intentionally discriminated against the

employee remains at all times with the [petitioner].Ñ EEOC v.

Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002);

see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th

DCA 2007) (ÐThe ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times.Ñ).

7 1 . In this case, Petitioner sought to establish a prima

facie case of discrimination through a disparate treatment

theory. A prima facie case of discrimination based on a

disparate treatment theory requires proof that: (1) Petitioner

belongs to a protected class; (2) Petitioner was subjected to

adverse employment action; (3) similarly - si tuated employees, who

are not members of Petitioner's protected class(es), were treated

more favorably than Petitioner; and (4) Petitioner was qualified

to do the job. City of W. Palm Bch. v. McCray , 91 So. 3d 165,

171 (Fla. 4th DCA 2012) (citing U.S. E.E .O.C. v. Mallinckrodt,

Inc . , 590 F. Supp. 2d 1371, 1376 (M.D. Fla. 2008)).

72. Petitioner failed to meet the third element of a prima

facie case. She did not identify a single person who is not a

member of PetitionerÓs protected classes , who engaged in the same

or similar conduct, and who was treated more favorably than

Petitioner.

73. Even if Petitioner had established a prima facie case

of discrimination, Respondent met its burden of articulating a

legitimate reason for terminating Petitioner's emplo yment that

had nothing to do with Petitioner's handicap or age.

74. Petitioner failed to meet her ultimate burden to prove

that she was terminated because of her disability or age.

Instead, Respondent not only articulated, but proved that it had

a legit imate reason for its action. Petitioner failed to present

any persuasive evidence that RespondentÓs action was more likely

motivated by a discriminatory reason , or that RespondentÓs stated

reason is not worthy of belief. Instead, a s found above, the

evid ence showed that Petitioner was terminated because she

falsified her time records on January 2, 2015, and by doing so,

committed an offense expressly designated in RespondentÓs

E mployee P olicy M anual as one that could result in immediate

termination. That is reason enough to terminat e her employment.

75. PetitionerÓs belated attempt, after she was terminated,

to invoke FMLA leave time to make up for being late to work on

January 2, 2015, is wholly insufficient to transform her

termination into a failure to accommodate PetitionerÓs

disability. Indeed, Petitioner lauded Respondent for its

compassionate management that provided reasonable accommodation

for her disability throughout her tenure, up to the day she was

terminated. PetitionerÓs opportunity to invoke her right to

intermittent FMLA leave on January 2, 2015, was on that day, when

she admittedly was able to work the rest of the day after her

rocky start. Petitioner never tried to invoke FMLA leave time

pursuant to the procedures she acknowledged: either by calling

into a call - line; or by informing a front desk adviser/supervisor

and a manager when one is available.

76. PetitionerÓs disability cannot be used as an excuse for

falsifying time records. Respondent acted in accordance with its

E mplo yee P olicy M anual by immediately terminating Petitioner

because she committed that offense.

77. Petitioner may believe that Respondent's reason for

firing her was not good enough, and that its action was too

harsh. However, the civil rights laws invoked by Petitioner in

this case are not concerned with whether an employment decision

is fair or reasonable, but only whether it was motivated by

unlawful discriminatory intent. Damon v. Fleming Supermarkets of

Fla., Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999). An Ðemployer

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.Ñ Nix v. WLCY

Radio/Rahall Comm cÓns , 738 F.2d 1181, 1187 (11th Cir. 1 984).

Petitioner failed to prove that Respondent's decision was

motivated by unlawful discriminatory intent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations en ter a final order dismissing Susan SweattÓs Petition

for Relief.

DONE AND ENTERED this 16th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June , 2016 .

ENDNOTE S

1/ Jennifer Fallon recently changed her last name. During the

time relevant to this case, she was known as Jennifer Zignauskas,

and is referred to by that name in exhibits and in most of the

testimony. She will be referred to herein as Jennifer

Zignaus kas, for clarity of the record.

2/ The DOAH docket reflects that both PROs were filed at

8:00 a.m. on May 10, 2016. Pursuant to DOAHÓs procedural rules,

filings made after 5:00 p.m. are considered filed as of 8:00 a.m.

the next morning. See Fla. Admin. Code R. 28 - 106.104(3).

Therefore, presumably both parties filed their PROs after hours

on the deadline day. The undersigned points this rule out for

future reference, as sometimes the actual filing deadline is

significant. Here, however, under the Ðno harm, no foulÑ rule,

neither party is faulted for the technically - late PRO filing.

3/ Contrary to the proposed finding of fact in PetitionerÓs PRO,

Petitioner never testified that she left home early that day.

Instead, she said that she left her home o n time. (Tr. 31, 56).

4/ PetitionerÓs PRO contends that the investigation was flawed

because William Hause, a fellow concierge at OKW, was selected as

the union shop steward to represent Petitioner on January 2,

2015, when she was asked to write a state ment. According to

PetitionerÓs PRO, Mr. Hause Ðwas later determined to have been

the employee that brought PetitionerÓs actions to the attention

of management.Ñ (PRO, ¥ 77). That is false; the employee who

reported PetitionerÓs actions to management wa s Maniala Lucien.

The PRO also inaccurately contends that when Respondent selected

Mr. Hause to be the shop steward representing Petitioner,

Respondent Ðwas well awareÑ that he was a witness against her,

because Ðthey secured a witness statement from him p rior to

asking him to serve as a representative.Ñ (PRO, ¥ 78). Again,

that is false. Mr. Hause was not an eyewitness to the clocking -

in actions and provided no witness statement on January 2, 2015.

5/ Supplemental witness statements were provided by Ms. Lucien,

Ms. Morgan, and Petitioner on January 7, 2015. In Ms. LucienÓs

supplemental statement, she identified Mr. Hause as someone who

could address when Petitioner arrived at a concierge station in

the OKW lobby, because he was another concierge on d uty that

morning. Apparently Mr. Hause gave a witness statement at that

point. However, no evidence was offered to prove whether his

statement was given before or after Petitioner gave her

supplemental statement (with Mr. Hause again representing her).

No evidence was offered to prove whether the statement Mr. Hause

apparently gave was favorable or adverse to Petitioner, or added

any information useful to the investigation at all. The

statement itself was not offered into evidence by either party.

Peti tioner failed to prove her theory that Mr. HauseÓs

representation of Petitioner while she gave her statement on

January 2, 2015, and her supplemental statement on January 7,

2015, somehow tainted RespondentÓs investigation.

6/ Using the Disney vernacular, concierges and other employees

staffing its resort hotels are Ðcast membersÑ who wear

Ðcostumes.Ñ When they assume their work stations -- such as

Petitioner manning a concierge station in the resort lobby -- they

go Ðonstage.Ñ

7/ Petitioner identified the three managers who informed her of a

change in policy as Maria OÓNeil, Rodney Jones, and Kathy

Behrens. The latter two testified at hearing. Mr. Jones was

asked about a change in policy Ðregarding being late or calling

out for work.Ñ He described a chan ge in policy without saying

which of the two categories the policy applied to. On the other

hand, Ms. Behrens testified quite clearly that she only discussed

with Petitioner that there would be a policy change requiring

calling in 30 minutes prior to her shift Ð[i]f she was calling in

[to be absent] for the day.Ñ She clarified, ÐI donÓt think we

talked about it in terms of [calling in] late.Ñ The greater

weight of the evidence did not establish a policy of having to

call in 30 minutes before an employeeÓ s shift began if that

employee was going to be late.

8/ PetitionerÓs written explanation to her union representative

was not offered into evidence by either party, although

Petitioner identified the document and its date, answered some

questions about th e document, and acknowledged the truth of a

sentence she wrote that was read into the record (quoted in

paragraph 42 above).

9/ It appears that, recognizing the dearth of evidence arguably

related to PetitionerÓs claim of age discrimination, Petitioner

h as abandoned that claim. PetitionerÓs PRO does not propose a

single finding of fact or conclusion of law to support her claim

that she was terminated because of her age.

10/ References herein to Florida Statutes are to the 2015

codification , unless othe rwise provided .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Amber Nichole Williams, Esquire

Coye Law Firm

730 Vassar Street

Orlando, Florida 32 828

(eServed)

Armando A. Rodriguez - Feo, Esquire

Walt Disney Parks and Resorts U.S., Inc.

Post Office Box 10000

Lake Buena Vista, Florida 32830

(eServed)

Patrick M. Muldowney, Esquire

Baker and Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802

( eServed)

Gregory R. Schmitz, Esquire

Baker Hostetler, LLP

200 South Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costill a , General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed )

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 Or der in this case.