16-000149 Ivy Powell vs. The Auto Club Group Status: Closed Recommended Order on Thursday, April 20, 2017.

Summary: Pet. failed to prove that Resp., her former employer, discriminated against her based on her disability. Pet. did not identify a reasonable accommodation; further, Resp. demonstrated that the accommodation requested would impose undue hardship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IVY POWELL,

Petitioner,

vs. Case No. 16 - 0149

THE AUTO CLUB GROUP,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted b efore

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on January 5, 2017, in

Rockledge, Florida.

APPEARANCES

For Petitioner: Jamison Jessup

2955 Enterprise Road, Suite B

DeBary, Florida 32713

For Respondent: Christine E. Howard, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Petitioner, Ivy Powe ll , was subject to an unlawful

employment practice by Respondent, The Auto Club Group, based on

a disability, in violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

O n June 10, 2015, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the ÐCommissionÑ) alleging that Respondent, The Auto Club Group

( the ÐAuto ClubÑ), violated the Florida Civil Rights Act (ÐFCRAÑ)

by discriminating against her based on her disability.

On December 8, 2015, the Commission notified Petitioner that

reasonable cause existed to believe that the Auto Club had

committed an unlawful employment practice.

On January 11, 2016, Petitioner filed a Petition for Re lief

with the Commission alleging a discriminatory employment

practice. 2/ The Commission transmitted the Petition to the

Division of Administrative Hearings (ÐDOAHÑ) to conduct an

evidentiary hearing.

The final hearing was held on January 5, 2017. At the final

hearing, Petitioner testified on her own behalf. Petitioner Ós

Exhibits 1 through 22 were admitted into evidence. The Auto Club

presented the testimony of Brenda Slupecki (Manager of Employee

Relations) and Linda Hurt (Field Manager of the Auto Clu bÓs

Melbourne, F lorida , office). Respondent Ós Exhibits 5 through 9,

13, 19, 20, 22, 23, 28 through 32, 34, 35, 37, 38, 42, 46, 48

through 50, and 52 through 56 were admitted into evidence.

A two - volume Transcript of the final hearing was filed on

February 8, 2017. At the close of the hearing, the parties were

advised of a ten - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. Following

PetitionerÓs request, the parties agreed to a deadline for filing

post - h earing submissions more than ten days after the filing of

the hearing Transcript. Both parties filed Proposed Recommended

Orders which were duly considered in preparing this Recommended

Order.

FINDING S OF FACT

1. The Auto Club is affiliated with the Amer ican Automobile

Association (ÐAAAÑ), a national not - for - profit organization that

provides its members with benefits relat ing to travel, emergency

roadside assistance, and insurance coverage.

2 . The Auto Club hired Petitioner in March 1995, at its

branch o ffice in Melbourne, Florida. The Auto Club first

employed Petitioner as a Service Clerk. PetitionerÓs job changed

over the years. Her last position with the Auto Club was as a

Member Representative I (ÐMR - 1Ñ).

3 . As a MR - 1, Petitioner was responsible f or providing

customer support services for Auto Club members. These services

included greeting current and prospective members in the office,

accepting membersÓ travel and membership payments, promoting

travel and membership products, generating leads, an d updating

members on travel and insurance specials. Petitioner also

provided travel - related services including booking car rentals,

reserving hotel rooms, and preparing auto travel packages

(ÐtriptiksÑ).

4 . As a MR - 1, Petitioner was a full - time employee in the

Melbourne office. The Melbourne office was open Monday through

Friday from 8:30 a.m. to 5:30 p.m. As a full - time employee,

PetitionerÓs normal work schedule mirrored the Melbourne office

operating hours. Petitioner was allowed a one - hour lunch b reak.

5 . While Petitioner was employed with the Auto Club, she

began to experience several medical issues. Petitioner described

her conditions to include ataxia (loss of muscle control),

fatigue, headaches, memory loss, and small vessel disease.

Petitio ner asserts that her mental and physical impairments

substantially limited her major life activities including

concentrating, lifting, sitting, standing, and thinking.

Pertinent to her job, Petitioner explained that working longer

than five hours a day ca used her to become tired and lose

concentration.

6 . On February 24, 2014, Petitioner presented a doctorÓs

note to her supervisor in the Melbourne office , Linda Hurt. The

note stated, Ðit is medically necessary for [Petitioner] to

decrease her work hours, for five hours per day, due to her

medical condition.Ñ On March 31, 2014, Petitioner produced a

second note from her doctor restating her need to limit her work

hours.

7 . Petitioner requested a reduced work schedule under the

Family and Medical Leave Ac t (ÐFMLAÑ). T he Auto Club granted

PetitionerÓs request , and b eginning in February 2014, the Auto

Club reduced her work hours to five hours a day. The Auto Club

initially scheduled Petitioner to work from 8:30 a.m. until

1:30 p.m. In May 2014, when Peti tioner had difficulty arriving

to work by 8:30 a.m., the Auto Club shifted PetitionerÓs work

schedule to 10:00 a.m. until 3:00 p.m.

8 . On October 20, 2014, the Auto Club advised Petitioner

that she would exhaust her FMLA leave in early November 2014.

The refore, she would need to provide additional documentation

should she desire to continue working a shortened work day beyond

the expiration of her FMLA leave. The Auto Club presented

Petitioner with an Interactive Process Questionnaire which she

was to ha ve a doctor complete.

9 . By the first week of November 2014, however, Petitioner

had not returned the requested paperwork. Therefore, on

November 11, 2014, the Auto Club informed Petitioner that her

FMLA leave had expired, and she would be expected to r eturn to a

normal, full - time work schedule.

1 0 . On November 13, 2014, Petitioner produced the

questionnaire which her doctor had completed. In the

questionnaire, her doctor restated PetitionerÓs need to continue

to work a reduced work schedule, indefinit ely, and that her

restrictions were permanent. PetitionerÓs doctor wrote that

Petitioner Ðis temporarily totally disabledÑ and Ðonly able to

work a maximum of five hours per day to prevent an exacerbation

of symptoms.Ñ

11. After the Auto Club received Pe titionerÓs paperwork, it

allow ed Petitioner to remain on a shortened w ork schedule while

it evaluated her request to continue work ing five hours a day.

1 2 . As more fully detailed below, the Auto Club determined

that it could not indefinitely accommodate P etitionerÓs part - time

work schedule. The Melbourne officeÓs operation needs required

full - time MR - 1 employees. (The Melbourne office did not employ

any part - time positions.) Therefore, the Auto Club explored

options to offer Petitioner to accommodate he r request for a

reduced work schedule. In particular, the Auto Club reviewed its

workforce to determine whether any part - time positions were open

within 50 miles of RespondentÓs residence .

1 3 . On December 4, 2014, Petitioner met with Linda Hurt to

discus s the status of her employment. Brenda Slupecki, the Auto

ClubÓs Employee Relations Manager, participated in th e meeting by

phone.

1 4 . During this meeting, Ms. Slupecki explained to

Petitioner that her MR - 1 position was a full - time position.

Therefore, the Auto Club needed an employee in her position to

work full - time. Ms. Slupecki further informed Petitioner that

the Auto ClubÓs Melbourne office could not accommodate her

request to work a part - time schedule indefinitely. The Auto Club

then placed Peti tioner on a 90 - day disability leave of absence.

Ms. Slupecki suggested that Petitioner look for part - time

positions within the Auto Club offices in Tampa and Heathrow ,

Florida .

1 5 . PetitionerÓs last day of paid employment in the Auto

ClubÓs Melbourne off ice was December 5, 2014. However, the Auto

Club continued to provide Petitioner employee benefits (such as

health insurance) until her official termination in May 2015.

1 6 . After the December 2014 meeting, following a suggestion

from Ms. Slupecki, Petit i oner applied for short - term disability

benefits from the Auto ClubÓs insurance company, Hartford Life

and Accident Insurance Company (ÐHartfordÑ). PetitionerÓs claim

was denied.

1 7 . On March 9, 2015, Ms. Slupecki sent Petitioner a letter

advising her th at her 90 - day disability leave of absence had

expired. Consequently, the Auto Club placed Petitioner in a

30 - day layoff status. The Auto Club, once again, suggested

Petitioner apply for other jobs with in the company. Ms. Slupecki

cautioned Petitioner t hat the Auto Club would terminate her

employment at the end of the 30 - day period if she was not able to

obtain a nother position. Petitioner did not apply for any other

jobs with in the Auto Club.

1 8 . On March 12, 2015, Petitioner appealed the denial of

he r claim for short - term disability to Hartford. On March 26,

2015, Hartford informed Petitioner that her appeal was not

timely , and he r claim would remain closed.

1 9 . On March 30, 2015, Ms. Slupecki sent a letter to

Petitioner advising her that the 30 - day layoff period would

restart following PetitionerÓs unsuccessful appeal to Hartford.

The Auto Club once again encouraged Petitioner to search for a

part - time job within the Auto Club. Petitioner did not attempt

to find another position with in the company .

20 . PetitionerÓs 30 - day layoff period ended on April 30,

2015. The Auto Club officially terminated PetitionerÓs

employment on May 1, 2015 .

2 1. The specific accommodation Petitioner request ed from

the Auto Club was to be allowed to work a par t - time sch edule of

five hours a day, five days a week, for an indefinite period of

time. At the final hearing, Petitioner testified that the Auto

Club could not offer her any other accommodation that would have

allow ed her to work full - time in her MR - 1 position.

22 . At the final hearing, Petitioner expressed that she was

a good performer for the Auto Club, and her customer surveys

showed no drop in customer satisfaction during the time she

worked shortened hours. She strove to complete all her tasks

every day befo re she left work. She believed that she could

perform all the functions of her MR - 1 position except work ing

eight hours a day.

23 . Petitioner also assert ed that her requested

accommodation w ould not impose an undue hardship on the Auto

Club. Petitioner suggested that the Auto Club could hire a part -

time employee to cover her MR - 1 duties during the hours she is

absent from the office. Petitioner commented that, with revenue

at more than a billion dollars a year and tens of thousands of

employees, the Au to Club would not be un reasonably burdened by

hiring a nother employee to supplement her job at the Melbourne

office.

24 . Petitioner explained that she did not accept a part -

time position at another Auto Club office because the nearest

potential vacancy (L ake Mary, Florida) was more than 50 miles

from her home. She would have been required to drive at least an

hour to and from this location. Adding the commut e time to a

part - time job would have defeated the purpose of her restricted,

five - hour workday.

25 . In response to PetitionerÓs claim, the Auto Club argues

that creating a permanent, part - time position just so Petitioner

can work five hours a day is not reasonable. Moreover, even if

it was reasonable, accommodating this request would place an

undue h ardship on the Auto Club. Based on its goal of consistent

and expedient customer service, the Auto Club asserts that

working a full - time schedule is an essential function of the

MR - 1.

26 . Ms. Hurt became Field Manager of the Auto ClubÓs

Melbourne office in January 2014. In her role, she oversaw the

day - to - day operations of her office. She also supervised

Petitioner.

27 . Ms. Hurt testified that the Melbourne office employed

approximately 15 people. Three of these employees (including

Petitioner) fille d the position of MR - 1. Ms. Hurt relayed that

all employees of the Melbourne office worked full - time and were

required to work during the officeÓs regular hours of 8:30 a.m.

through 5:30 p.m.

28 . Ms. Hurt explained that, as a Ðfront - facingÑ employee,

the MR - 1 is the Auto Club representative who welcomes customers

into the business. Ms. Hurt expressed that the Melbourne office

experiences a lot of Ðfoot traffic.Ñ It is a small office , but

very busy. Ms. Hurt conveyed that the staffing needs of her

offic e require full - time employees in each position to interact

will all customers who enter the office during business hours .

29 . Ms. Hurt further asserted that the Melbourne office did

not operate efficiently in PetitionerÓs absence. PetitionerÓs

reduced wo rk schedul e caused the office to be short - staffed from

8:30 a.m. until 10 a.m. and from 3:00 p.m. until 5:30 p.m. The

office was not able to complete all of the work that needed to be

accomplished during business hours. Neither was it able to

provide tim ely service to its customers. Ms. Hurt remarked that

developing customer relationships is paramount t o the Auto ClubÓs

business. The Auto Club desires its offices to service customers

as expeditiously as possible. The MR - 1 position is designed to

cultiv ate long - term relationships with customers by providing

consistent and continuous service. Ms. Hurt recounted that in

2014, she was aware of sever al customers who became aggravated

due to increased wait times and left the Melbourne office without

meeting with any Auto Club representative.

30 . Ms. Hurt also testified that a direct consequence o f

having one of her three MR - 1 employees working part - time was that

her office did not meet its 2014 budget projections. In

particular, the Motor Club, which was th e specific section in

which Petitioner worked, produced lower income.

3 1. Ms. Hurt relayed that PetitionerÓs shortened work

schedule also negatively impacted the other two MR - 1 employees.

The remaining MR - 1s were obligated to meet with all customers who

arrived at the Melbourne o ffice outside of PetitionerÓs five - hour

work schedule. In addition to their own workload, they were

forced to divide up and complete PetitionerÓs duties . For

example, because Petitioner could not work past 3:00 p.m., any

custome r with whom she was working w as transferred to another

MR - 1. This situation prevented the continuity of service that

the Auto Club strove for as an organization.

32 . The other two MR - 1s also experience d increased overtime

and reduced lunch breaks due to PetitionerÓs truncated work

schedule. Ms. Hurt explained that the overtime the MR - 1

employees worked in 2014 nearly tripled. The Melbourne office

was budgeted $3,300 for overtime costs that year . However, the

officeÓs actual overtime expense in 2014 eq ualed approximately

$9,600.

33 . In addition, the other MR - 1s were not able to attend

certain training sessions or u se all of their paid vacation leave

in 2014 . Ms. Hurt also relayed that, at one point, one MR - 1

volunteered to return early from medical le ave because the office

could not provide adequate service for all its customers due to

PetitionerÓs limited availability.

34 . Ms. Slupecki testified that, b ased on the Auto ClubÓs

business model, hiring a part - time employee to fill in during the

work hour s Petitioner missed would not be an efficient or

practical option to best serve Auto Club customers. T he MR - 1

position requires specific experience , knowledge , and training.

Ms. Slupecki did not believe that a part - time employee would be

able to master t he skills or obtain the required expertise

required of a MR - 1. Furthermore, a part - time MR - 1 would not

provide the expected level or continuity of customer service the

Auto Club desires. Ms. Slupecki imparted that the Auto Club

employs only full - time MR - 1s in all of its branch offices.

3 5 . Based on the competent substantial evidence presented

at the final hearing, the preponderance of the evidence in the

record does not establish that the Auto Club discriminated

against Petitioner based on a disability. Accordingly,

Petitioner failed to meet her burden of proving that the Auto

Club discriminated against her in violation of the FCRA.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(4)(b)

and (6) , Florida Statutes . See also Fla. Admin. Code R. 60Y -

4.016.

3 7 . Petitioner brings this action alleging that the Auto

Club discriminated against her based on her disability in

vi olation of the FCRA. Petitioner specifically asserts that the

Auto Club failed to provide her a reasonable accommodation during

her employment.

38 . The FCRA protects individuals from disability

discrimination in the workplace. See §§ 760.10 and 760.11,

Fla. Stat (2016) . Section 760.10 states, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to co mpensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

39 . Section 760.11(4)(b) permits a party for whom the

Commission determines that there is reasonable cause to believe

that a discriminatory practice has occurred to request an

administrative hearing before DOAH. Following an administrative

hearing, if the Administrative Law Judge (Ð ALJ Ñ) finds that a

violation of the FCRA has oc curred, the ALJ Ðshall issue an

appropriate recommended order in accordance with chapter 120

prohibiting the practice and providing affirmative relief from

the effects of the practice, including back pay.Ñ See §

760.11(6), Fla. Stat.

40 . The FCRA is patt erned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts hold

that federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blockbuster Entm't

Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); and

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

41 . Specifically regarding disability discrimination, the

FCRA is construed in conf ormity with the Americans w ith

Disabilities Act (ÐADAÑ) found in 42 U.S.C. £ 12112(a).

Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1175 (11th Cir. 2005)

( citing Wimberly v. Secs. Tech. Grp., Inc. , 866 So. 2d 146, 147

(Fla. 4th DCA 2004) ) (ÐBecause Florida courts construe the FCRA in

conformity with the ADA, a disability discrimination cause of

action is analyzed under the ADA.Ñ) . See also Holly v. Clairson

Indus., L.L.C. , 492 F.3d 1247, 1255 (11th Cir. 2007)(FCRA claims

are analyzed under t he same standard s as the ADA.) .

42 . The burden of proof in administrative proceedings,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see also DepÓ t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)(ÐThe general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.Ñ) . The preponderance of

the evidence standard is applicable to this matter . See

§ 120.57(1)(j), Fla. Stat.

43 . To state a prima facie claim for disability

discrimination, Petitioner must show that 1) she is disabled;

2) she was a Ðqualified individualÑ; and 3) she was di scriminated

against because of her disability. See Lucas v. W.W. Grainger,

Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001); and Frazier - White v.

Gee , 818 F.3d 1249, 1255 (11th Cir. 2016). An individual is

"qualified" if she, with or without reasonable accommo dation, can

perform the essential functions and job requirements of the

position the individual holds. Earl v. Meryns, Inc. , 207 F.3d

1361, 1365; S e. Cm t y . Coll . v. Davis , 442 U.S. 397, 406, 99 S.

Ct. 2361, 2367, 60 L. Ed. 2d 980 (1979). If the P etitione r is

unable to perform an essential function of her job, even with an

accommodation, then, by definition, she is not a "qualified

individual" and, therefore, not covered under the ADA. Davis v.

Fla. Power & Light Co. , 205 F. 3d 1301, 1305 (11th Cir. 2000).

44 . Turning to the facts found in this matter, Petitioner

failed to establish a prima facie case of disability

discrimination. Petitioner did not demonstrate that she is a

Ðqualified individual.Ñ 3/ Specifically, Petitioner did not

establish that she ca n perform an essential function of her job

(working full - time as a MR - 1) with or without a reasonable

accommo dation.

45 . The essential functions of a job Ðare the fundamental

job duties of a position that an individual with a disability is

actually requir ed to perform.Ñ Holly , 492 F.3d at 1257. Whether

a function is Ðessent ialÑ is determined on a case - by - case basis.

Id. In determining what functions are deemed essential, the ADA

provides that consideration shall be given to the employer's

judgment as t o what functions of a job are essential and the

employer's written description for that job. Davis , 205 F.3d at

1305. A job function also may be essential if there are a

limited number of employees among whom performance of the job

can be distributed. Mervyns, Inc. , 207 F.3d at 1365; see also

42 U.S.C. § 12111(8).

46 . Using this standard, the Auto Club persuasively argues

that an essential function of the MR - 1 position requires

Petitioner to work a full - time schedule. The testimony

established that t he MR - 1 position is a customer - service oriented

job. As such, the Auto Club expects and requires the MR - 1 to

communicate, in person, with Auto Club customers during all

regular business hours. In the Melbourne office, a MR - 1 must be

available to assist c ustomers during the officeÓs normal

operating hours of 8:30 a.m. through 5:30 p.m. Requiring a MR - 1

to work a full - time schedule enables the Auto Club to meet its

business objective of maintaining the level and quality of

customer s ervice its customers ex pect .

47 . Petitioner does not dispute that she cannot be

physically present in the Melbourne office during all business

hours. Accordingly, because Petitioner cannot perform an

essential function of a MR - 1 by working a full - time, eight hour a

day schedul e, she is not a Ðqualified individualÑ under the FCRA.

Consequently, Petitioner failed to establish a prima facie claim

of disability discrimination.

4 8 . Furthermore, the evidence in the record does not

support PetitionerÓs claim that the Auto Club faile d to provide a

ÐreasonableÑ accommodation for her disability by transforming her

position into a part - time job. The only accommodation Petitioner

requested (and seeks through her petition) is to be allowed to

permanently work a shortened schedule of five hours a day, five

days a week.

49 . To prove unlawful discrimination in a failure to

accommodate claim, Petitioner must show that she was

discriminated against as a result of the Auto ClubÓs failure to

provide a reasonable accommodation. Petitioner bears the burden

both to identify an accommodation and show that it is

Ðreasonable.Ñ Lucas , 257 F.3d at 1255. ÐThe duty to provide a

reasonable accommodation is not triggered unless a specific

demand for an accommodation has been made.Ñ Gaston v.

Bellingrath Gardens & Home, Inc. , 167 F.3 d 1361, 1363 (11th Cir.

1999).

50 . A reasonable accommodation Ð may include job

restructuring; part - time or modified work schedules; [or]

re assignment to a vacant position ." Rabb v. Sch. Bd. of Orange

Cty. , 590 F. App'x 849, 8 51 (11th Cir. 2014) ( citing

42 U.S.C. § 12111(9) and 29 C.F.R. § 1630.2(o)(2)(ii) ) . However,

part - time employment is not always a reasonable accommodation.

ÐWhether an accommodation is reasonable depends on specific

circumstances. . . . In a specific s ituation, part - time

employment may or may not be reasonable.Ñ Terrell v. USAir , 132

F.3d 621, 626 (11th Cir. 1998). Furthermore, the ADA imposes no

duty on the employer to create a new or part - time position to

accommodate an employee's disability. "Whet her a company will

staff itself with part - time workers, full - time workers, or a mix

of both is a core management policy with which the ADA was not

intended to interfere." Id. at 626 - 27.

5 1 . Moreover, a qualified individual is not entitled to the

accommod ation of her choice, but rather only to a ÐreasonableÑ

accommodation. Stewart v. Happy Herman's Cheshire Bridge, Inc. ,

117 F.3d 1278, 1286 (11th Cir. 1997). An accommodation is

ÐreasonableÑ and, therefore, required under the ADA, only if it

enables the e mployee to perform the essential functions of the

job. LaChance v. Duffy's Draft House , 146 F.3d 832, 835 (11th

Cir. 1998). An employer need not accommodate an employee in any

manner the employee desires, nor reallocate job duties to change

the essential functions of the job. Mervyns, Inc. , 207 F.3d at

1367. The intent of the ADA is that ÐÒan employer needs only to

provide meaningful equal employment opportunitiesÓ . . . Ò[t]he

ADA was never intended to turn nondiscrimination into

discriminationÓ agains t the non - disabled.Ñ St. Joseph's Hosp. ,

842 F.3d at 1346 ( quoting Terrell , 132 F.3d at 627 ) .

5 2. Furthermore, an employer is not required to provide an

employee with Ðthe maximum accommodation or every conceivable

accommodation possible.Ñ Stewart , 117 F.3d at 1285. Neither is

an employer required Ðto transform the position into another one

by eliminating functions that are essential to the nature of the

job as it exists." Lucas , 257 F.3d at 1260. See also Sutton v.

Lader , 185 F.3d 1203, 1211 (11th Ci r. 1999)(an employer is not

required to create alternative employment opportunities for a

disabled employee); Willis v. Conopco, Inc. , 108 F.3d 282, 284 - 86

(11th Cir. 1997)(reassignment to a new position is required as a

reasonable accommodation only if th ere is an available, vacant

position).

53 . Once the P etitioner has met her burden of proving that

reasonable accommodations exist, the employer may present

evidence that the P etitionerÓs requested accommodation imposes an

undue hardship. Willis , 108 F.3d at 286. The ADA requires an

employer to make reasonable accommodations to an otherwise

qualified employee with a disability, Ðu nless doing so would

impose undue hardship on the employer.Ñ Lucas , 257 F.3d at 1255;

Frazier - White , 818 F.3d at 1255. Undue hardship is a complete

defense to ADA liability. United States EEOC v. St. Joseph's

Hosp., Inc. , 842 F.3d 1333, 1349 (11th Cir. 2016) .

54 . The only accommodation Petitioner identifies is for the

Auto Club to allow her to work a part - time schedule. Howev er,

the Auto Club persuasively argues that permanently reducing

PetitionerÓs full - time MR - 1 job to a part - time position is not

ÐreasonableÑ under the circumstances. Initially, the Auto Club

does not staff a part - time MR - 1 employee in the Melbourne office

or in any Auto Club branch office. Requiring the Auto Club to

create a new part - time MR - 1 position, or reduce an existing full -

time MR - 1 to a part - time job just to accommodate Petitioner,

would force the Auto Club to depart from its existing workforce

str ucture and staffing policies. As examined above, the Auto

Club considers a full - time MR - 1 essential to the efficient

operation of a branch office. Accordingly, in light of t he

nature of the Auto ClubÓs customer - oriented business, the

customer demands in the Melbourne office, and the pressure a

reduced work schedule would place on PetitionerÓs co - workers to

complete her responsibilities, PetitionerÓs request to work part -

time as a MR - 1 is not reasonable.

55 . P etitionerÓs request that the Auto Club hire an other

employee to supplement her work responsibilities is also not

reasonable. The Auto Club created the MR - 1 position to perform

on a full - time basis. Based on the Auto ClubÓs business model,

hiring a part - time employee to fill in for the hours Petition er

would not be in the office would not be an effective or efficient

means to serve its customers. The Auto Club Ós witnesses credibly

testified that a part - time employee would not be able to obtain

the fundamental knowledge, master the necessary skills, o r offer

the expected level of customer service required for a MR - 1.

Consequently, even if Petitioner was a Ðqualified individualÑ

under the FCRA, her claim for disability discrimination still

fails as a matter of law because Petitioner did not identify a

ÐreasonableÑ accommodation that would require the Auto Club to

allow her to work a part - time schedule for an indefinite period

of time.

56 . Finally, even if the accommodation Petitioner requests

(a permanent, part - time work schedule) is Ðreasonable,Ñ it w ould

impose an undue hardship on the Auto Club. 4/ The evidence

establishes that PetitionerÓs reduced work schedule in 2014

caused the Melbourne office to struggle to meet its budgetary and

management goals. PetitionerÓs co - workers, primarily the other

tw o MR - 1s, were required to curtail their lunch times and

increase their overtime in order to adequately serve all Auto

Club customers. The lack of available manpower also forced the

Melbourne office to limit training opportunities for the MR - 1s

and reject leave requests. In addition, the Melbourne office

experienced Auto Club customers leaving its office agitated over

their inability to meet with a MR - 1 during business hours.

Finally, the Auto Club was financially impacted by PetitionerÓs

reduced hours. The overtime costs in the Melbourne office nearly

tripled in 2014. Accordingly, the Auto Club produced persuasive

evidence that providing Petitioner the specific accommodation she

requests would impose an undue hardship on its business.

5 7. In sum, the e vidence on record does not support

PetitionerÓs claim that the Auto Club discriminated against her

based on her disability. Because she could not work a full - time

schedule, Petitioner did not establish that she was a Ðqualified

individualÑ who could perfo rm the essential functions of the MR - 1

position. Further, Petitioner failed to present sufficient

evidence that her proposed accommodation (permanent, part - time

employment) was reasonable under the circumstances. Finally, the

Auto Club demonstrated that allowing Petitioner to work a part -

time schedule, indefinitely, as an MR - 1 would cause it an undue

hardship. Accordingly, PetitionerÓs Petition for Relief must be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Petitioner, Ivy

Powell, did not prove that Respondent, the Auto Club, committed

an unlawful employment practice against her and dismiss her

Petition for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 20 th day of April, 2017 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 20 th day of April, 2017 .

ENDNOTE S

1/ All statutory reference s are to Florida Statutes (2016),

unless otherwise noted.

2 / Petitioner moved to amend her Petition on July 6, 2016, which

the undersigned granted.

3 / The Auto Club did not dispute PetitionerÓs claim that she has

a disability.

4 / The Auto Club Ðhas n o affirmative duty to show undue hardshipÑ

unless and until the employee identifies an accommodation and

demonstrates that it is reasonable. Mervyns, Inc. , 207 F.3d at

1367.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Re lations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Jamison Jessup

2955 Enterprise Road, Suite B

DeBary, Florida 32713

(eServed)

Christine E. Howard, Esquire

Fisher & Phillips LLP

Suite 2350

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

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 Order in this case.