17-003092 Jackie Graham vs. Veteran Of Foreign Wars Department Of Florida Status: Closed DOAH Final Order on Wednesday, January 3, 2018.

Summary: Petitioner failed to establish her employer denied her an accommodation or discriminated against her because of her disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKIE GRAHAM,

Petitioner,

vs. Case No. 17 - 3092

VETERAN OF FOREIGN WARS

DEPARTMENT OF FLORIDA,

Respondent.

_______________________________/

FINAL ORDER

A Recommended Order was e ntered in this case on December 15,

2017. The parties were given ten days from the date of the

Recommended Order to submit written exceptions pursuant to

section 70 - 77(g)(13) , Pinellas County Code . Neither party having

filed such exceptions, the Findings of Fact and Conclusions of

Law in the Recommended Order are adopted as set forth below.

APPEARANCES

For Petitioner: Jeremiah Ray Blocker, Esquire

W. Jason Odom, Esquire

North Florida Lawyers, PLLC

101 No rtheast 1st Avenue

Ocala, Florida 34471

For Respondent: Jason Kenneth Smith

Veteran of Foreign Wars

Department of Florida

9500 Bay Pines Boulevard, No. 217

St. Peters burg, Florida 33744

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice

by not providing Petitioner with a reasonable accommodation for

her disability, in violation of section 70 - 53 of the Pinellas

County Code , also known as the Pinellas Human Rights Code

(ÐPHRCÑ) and ; if so, the appropriate remedy.

FINDING S OF FACT

The following facts are found based on the greater weight of

the competent substantial evidence and the credibility and

demeanor of the witnesses presented at the final hearing.

The Parties and Jurisdiction

1. Veteran of Foreign Wars Department of Florida (Ð VFW Ñ) is

a non - profit, tax exempt veteransÓ service organization.

Although it works closely with the U.S. Department of Veterans

Affairs (ÐVAÑ), it is not a governmental entity. VFW has

branches in Ocala, Orlando, Miami, and St. Petersburg.

Petitioner was employed at the branch located in St. Petersburg.

2. The primary purpose of VFW is to assist its clients,

U.S. military veterans and their families , in making claims for

benefits and accessing services through the VA and other veteran

service providers.

3. VFWÓs St. Petersburg office had no more than nine

employees during any time material to this action.

4. Petitioner worked for VFW from November 2012 until

September 10, 2014, as a Service Officer.

5. Mr. Thie hired and supervised Ms. Graham until he

retired as VFW branch director in July 2013; after that

Ms. Graham reported to Mr. Smith.

Terms of Employment at VFW

6. Most, if not all, of VFWÓs emplo yees at the relevant

time period were military veterans and nearly all suffered from

service - related disabilities.

7. VFW has in place written policies and procedures that

prohibit, among other things, harassment and discrimination on

the basis of race, c olor, religion, sex, national origin, age, or

disability. At the time of her hiring, Petitioner received a

copy of RespondentÓs employee manual setting forth this anti -

discrimination policy.

8. According to its employee manual, VFW employeesÓ

expected wo rk schedule was from 8:00 a.m. to 4:30 p.m., with

30 minutes unpaid for lunch. However, Mr. ThieÓs undisputed

testimony at the hearing was that the VFW allowed its

St. Petersburg branch employees to work a flexible schedule or

Ðflex time.Ñ Any employee who wanted to deviate from the

schedule in the Policy Manual was required to designate his or

her start time and work an eight - hour day. The only restrictions

were that employees were expected to report to work within

15 minutes of their designated star t time, and all work must

occur within the Ðcore timeÑ defined as 7:00 a.m. to 8:30 p.m.

VFW allowed exceptions to an employeeÓs self - designated schedule

for illness and medical appointments.

9. There is no evidence VFW had a written procedure for

addres sing requests for reasonable accommodations for

disabilities. Mr. ThieÓs unrefuted testimony, however,

established that VFW had employees who were Ðseverely disabled,Ñ

and VFW allowed these employees to work varied schedules as long

it was within the Ðcor e time.Ñ

10. Mr. ThieÓs uncontroverted testimony established that

working a predictable schedule during the 7:00 a.m. to 8:30 p.m.

window was a necessary component of the Service Officer position.

Ms. GrahamÓs Disability and Work History

11. Ms. GrahamÓs duties as a Service Officer included

assisting veterans and widows with filing and pursuing benefits,

compensation, and indemnity claims through the VA office. By all

accounts, Petitioner was a good employee Ðwhen she was there.Ñ

12. Prior to being empl oyed at VFW, Ms. Graham served in

the United States Army for nine and a half years in various

positions including medic, military police officer, and drill

sergeant.

13. Petitioner has several service - related medical

conditions. VFW had access to Petitio nerÓs VA disability claims

file. Ms. Graham explained she had discussed with Mr. Thie and

Mr. Smith the disability ratings related to her medical

conditions involving her foot, shoulder, back and neck, as well

as her tinnitus.

14. Petitioner takes medic ation for her medical conditions

that make her drowsy and affect her ability to awaken.

Petitioner also suffers from depression and anxiety, which affect

her motivation, mood, and sleep. There is no testimony

Ms. Graham specifically discussed her depres sion and anxiety with

her supervisors.

15. Ms. Graham notified both Mr. Thie -- and later

Mr. Smith -- she had trouble waking up, and needed to come to work

late. Ms. Graham, however, never tied her request to come in

later to her anxiety, depression, sleep disorder or any other

disability.

Q. Explain how you asked for the

accommodation.

Ms. Graham: I asked if I could come in later

in the morning and work later in the

afternoon since the guys came in early and

left early. I could come in late and work

la te because I had trouble getting up and in

the morning.

As a result of this request, Mr. Smith replied, ÐdonÓt worry

about it, Jackie . . . you know IÓll take care of you.Ñ

16. Mr. Thie testified he knew Ms. Graham had difficulty

getting to work on time, but did not know until approximately

June or July 2013 that her inability to wake up and come into

work was related to a disability. Regardless, he claims

Petitioner never requested to alter her work schedule as a

reasonable accommodation for her disabil ity.

Q. Okay. And from your recollection,

Ms. Graham never came to you and said that

she wanted reasonable accommodations to alter

her work schedule even more due to her

disability?

A. No.

* * *

Q. Now, at any point when you were

Ms. Graha mÓs supervisor, did you allow her to

flex her work schedule due to her disability?

A. No. I let her flex her schedule because

of where she physically lived.

* * *

Q. Did Ms. Graham ever ask you for

reasonable accommodations to flex her

schedu le due to disability?

A. She asked to be flexed in her schedule

but it was never clarified that it was due

specifically to a disability. She claimed

she had a difficulty with waking up early and

she wanted to come in later, so we gave her

some flexible time on that as long as she

came in within that core time.

17. On June 26, 2013, Mr. Thie issued Ms. Graham a

memorandum with the subject line, ÐTardinessÑ (ÐMemoÑ). 1 / The

Memo warned Ms. Graham if she came in later than her designated

start time, she w ould be charged with unauthorized leave without

pay. Mr. Thie testified that at the time he issued the Memo, he

was not aware that her disability was the reason she was

reporting to work late:

Q. So you gave her a counseling statement

about tardiness kno wing full well that she

had a disability that would interfere with

her ability to show up for work on time, is

that correct?

A. I donÓt think at that point that the

disability was being discussed as the reason

for her tardiness.

Q. Did you withdraw tha t counseling

statement when you found out about her

disability?

A. No, because she never told me ÎÎ we had the

discussion about her being late, and again,

it wasnÓt discussed as being a service -

connected disability or disability[.] [T]he

comment was, ÐI h ave difficulty being able to

wake up.Ñ

18. There was no evidence VFW ever reduced Ms. GrahamÓs pay

or that she suffered any discipline because of her inability to

arrive to work on time.

19. In July 2013, Mr. Smith became Ms. GrahamÓs supervisor.

Ms. G raham continued to report late to work, but there is no

evidence Mr. Smith disciplined her or took any adverse action

against her for her tendency to report to work late. To the

contrary, Ms. Graham testified about a July 2014 e - mail from a

VFW employee r equesting Petitioner to submit a leave request form

for time missed when she came to work late. When she brought the

e - mail to Mr. SmithÓs attention and explained she worked late to

make up the hours, he said to her ÐNo, donÓt worry about it, your

time is covered.Ñ Ms. Graham understood that Mr. Smith would not

discipline her or deduct her pay for coming in late as long as

she worked an eight - hour day.

20. Mr. Smith also testified he knew Ms. Graham arrived to

work late, but he never disciplined her. He also was not aware

that she was late to work because of a disability until he

received the amended Charge. He testified he did not fire her

for being late.

21. On or around September 2, 2014, Petitioner provided

false information to VFW related to a lea ve request. Although

she reported she needed time off for a medical appointment,

Mr. Smith learned from another employee that Ms. Graham had not

attended a medical appointment, but instead was not in the office

because she was meeting someone she had bee n dating.

22. Shortly thereafter, Mr. Smith learned from a VFW

employee that Petitioner used VFW letterhead to send a letter to

the home of someone she had been dating. The letter gave false

information regarding VFW services and was sent to disguise the

relationship she was having with the individual. PetitionerÓs

use of the letterhead and dissemination of false information in

the letter violated VFW policies.

23. Around this time, Mr. Smith also received complaints

from one or more VFW employees that Petitioner was not completing

her work, but rather Ðpassing it offÑ to other employees.

Ms. Graham had been previously reprimanded about completing her

work and advised she should not ask others to complete the work

for her.

24. Mr. Smith terminated Ms. Graham on September 10, 2014.

He did not terminate Petitioner because of her tardiness or

unreliability to report to work at a certain time. Rather, he

made the decision to terminate Ms. Graham after he concluded

Ms. Graham had (1) provided false infor mation regarding a leave

request; (2) misused VFW letterhead; and (3) asked other

employees to finish her uncompleted work. 2 /

25. Ms. Graham could not recall whether Mr. Smith informed

her that tardiness was one of the grounds for her termination at

the t ime he fired her.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § 120.65(7) , Fla. Stat. (2013); §§ 70 - 51 and 70 - 77,

Pinellas Cnty. Code.

27. At issue is whethe r Respondent violated section 70 -

53(a)(1), which provides it is an unlawful discriminatory

employment practice for an employer to:

a. Fail or refuse to hire, discharge, or

otherwise discriminate against an individual

with respect to compensation or the te rms,

conditions, or privileges of employment

because of race, color, religion, national

origin, sex, sexual orientation, age, marital

status, or disability.

28. Respondent provided testimony that the VFW

St. Petersburg branch employed no more than nine people at any

one time, and thus Respondent is an ÐemployerÑ within the meaning

of section 70 - 51, Pinellas County Code.

29. The prohibitions against employment discrimination

based on a disability in section 70 - 53 of the Pinellas County

Code mirror the p rohibitions found in state and federal laws.

See §§ 760.01 and 760.11, Fla. Stat. (Florida Civil Rights Act of

1992); 42 U.S.C. § 12112(a), et. seq. ( Ð Americans with

Disabilities Act Ñ or ÐADAÑ). As a result, section 70 - 53 should

be construed in a manner that is consistent with those laws.

See , e.g. , Conway v. Vacation Break , Case No. 01 - 3384 (Fla. DOAH

Nov. 16, 2001)(construing chapter 70 of the Pinellas County Code

in accordance with the comparable state and federal laws);

Blacknell v. Freight Mgmt. Ser vs., Inc. , Case No. 04 - 2854 (Fla.

DOAH Oct. 27, 2004)(same).

30. Petitioner claims she was discriminated when she

requested a flexible start time because she had trouble waking up

due to her anxiety, depression, and medication; and that VFW

refused this r equest. VFW argues Petitioner never requested a

reasonable accommodation because of her disability, and it

allowed Petitioner to have a flexible start time.

31. An employer impermissibly discriminates against a

qualified individual when the employer does not reason ably

accommodate the individualÓ s disability. See Brown v. Fla. Atl.

Univ. , 2016 U.S. Dist. LEXIS 146853, at *1 (S.D. Fla. Oct. 24,

2016). To establish a claim for disability discrimination for

failure to accommodate, Petitioner has the burden to prove:

(1) She has a disability;

(2) She is a qualified individual, in that

she is able to perform the essential

functions of her position with or without

reasonable accommodation; and

(3) Respondent unlawfully discriminated

against her because of the disability.

See 42 U.S.C. § 12112(b)(5)(A); Boyle v. City of Pell City , 866

F.3d 1280, 1288 (11th Cir. 2017). In addition, Petitioner has

the burden of showing she requested a reasonable accommodation,

and it was not provided. See Warren v. Volus ia Cnty. , 188 F ed.

Appx . 859, 862 - 63 (11th Cir. 2006); Nadler v. Harvey , 2007 U.S.

App. LEXIS 20272, at *14 (11th Cir. 2007). 3 /

32. Petitioner has satisfied her burden of establishing she

was disabled and she was otherwise qualified for the Service

Office r position. At issue is whether she requested and was

denied a reasonable accommodation.

33. ÐThe burden of identifying an accommodation that would

allow a qualified employee to perform the essential functions of

her job rests with that employee, as does the ultimate burden of

persuasion with respect to showing that such accommodation is

reasonable.Ñ Earl v. Mervyns, Inc. , 207 F.3d 1361, 1367 (11th

Cir. 2000). Ms. Graham, however, is not entitled to the

accommodation of her choice, but only a reasonable accommodation

-- one that allows her to perform the essential functions of the

job. See Banim v. Fla. DepÓt of Bus. & ProfÓl Reg. , 689 F ed .

Appx . 633, 634 (11th Cir. 2017).

34. Petitioner had difficulty coming to work at a

consistent time and requested a flexible start time. Modified

schedules and flexible start times can be Ðreasonable

accommodations.Ñ See 42 U.S.C. § 12111(9)(B).

35. Respondent first counters Ms. Graham never explicitly

asked for the flexible start time as an accommodation for a

spec ific disability. Although Petitioner bears the burden of

identifying a reasonable accommodation that would allow her to

perform her job, she did not have to use magic words to trigger

VFWÓs obligations to accommodate her. See U.S. v. Hialeah Hous.

Auth. , 418 Fed. Appx. 872, 876 (11th Cir. 2011)(Ða plaintiff need

not mention the ADA or use the magic word ÒaccommodationÓ or

phrase Òreasonable accommodation.ÓÑ). The evidence establishes

both her supervisors were aware of her numerous disabilities and

Mr. Th ie admitted he eventually learned PetitionerÓs inability to

waken was related to a disability. Thus, VFWÓs obligation to

assess how it could accommodate Ms. Graham was triggered.

36. Ms. Graham, however, fails to meet the ultimate burden

of proving she w as denied an accommodation. See Banim , 689

F ed . Appx. at 634 (affirming summary judgment where employee

failed to show employer refused to accommodate his disability).

As set forth in the findings of fact above, the totality of the

more credible evidenc e establishes both Mr. Thie and Mr. Smith

allowed Ms. Graham to set her own reporting time, and even when

she failed to arrive at that time, they allowed her to make up

her time as long as it was within the core working hours.

Although she was provided th e Memo in July 2014, this alone is

not an adverse action. Cf. , Davis v. Town of Lake Park , 245 F.3d

1232, 1241 (11th Cir. 2001)(Ð[C]ourts are wisely reluctant to

treat job performance memoranda as actionable under Title VII

where they do not trigger any m ore tangible form of adverse

action such as loss in benefits, ineligibility for promotional

opportunities, or more formal discipline. Ñ); Lewis v. Michaels

Stores, Inc. , 2007 U.S. Dist. LEXIS 56599, at *18 (M.D. Fla. Aug.

3, 2007)(finding negative job perfo rmance memoranda placed in an

employeeÓs file did not meet the statutory threshold for adverse

employment action). The arrangement she had with her supervisors

allowed her to perform her work duties and she did not suffer any

pay deductions, disciplinary action, or other adverse action

against her because she was late. See Isaac v. Wal - Mart Stores

E., LP , 2017 U.S. Dist. LEXIS 201305, at *11 (S.D. Ala. Dec. 7,

2017)(Ð[W]hether viewed through the prism of a disability

discrimination theory or a retaliation theory [plaintiff] is

unable to make out a prima facie case of discrimination or

retaliation, for the simple reason that Walmart took no adverse

employment action against himÑ).

37. VFW did not terminate Petitioner for her lack of

punctuality or her disa bility. Although VFW mentioned

PetitionerÓs tardiness in its response to the Pinellas OHRÓs

investigation, the evidence at the hearing established VFW

terminated Ms. Graham for a number of fireable offenses

including: (1) providing false information rela ting to a sick

leave request; (2) improper use of VFW letterhead; and

(3) failing to complete her work.

38. Ultimately, PetitionerÓs failure to establish she was

denied a reasonable accommodation or that she suffered an adverse

action because of her disa bility defeats her claim of disability

discrimination.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED PetitionerÓs Charge ( PC 1512 - 019 ) is

DISMISSED.

DONE AND ORDERED this 3rd day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January , 2018 .

ENDNOTE S

1/ Both Mr. Thie and Mr. Smith signed the Memo because Mr. Thie

was the outgoing director and Mr. Smith had already been selected

as the i ncoming director.

2/ The Pinellas OHR Investigative Report also mentions other

violations of VFW policy and that after her termination, VFW had

discovered Petitioner had committed ethical violations, but no

evidence of this behavior was presented at the hearing or

corroborated by any non - hearsay testimony.

3/ Although the traditional McDonnell Douglas Corp. v. Green , 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), burden

shifting framework applies to most intentional disability

discrimination cas es, see , e.g. , Bennett v. Dominguez , 196 Fed.

Appx. 785, 791 (11th Cir. 2006), in the 11th Circuit Ðfailure to

accommodateÑ cases are an exception to this general rule. See

Holly v. Clairson, L.L.C. , 492 F.3d 1247, 1262 (11th Cir.

2007)(finding McDonnell Douglas framework is not well - suited to

the analysis of reasonable accommodation claims under the ADA);

Moore v. Comput. Scis. Corps. , 2017 U.S. Dist. LEXIS 142923, at

*20 (N.D. Ala. Sep. 5, 2017)(explaining plaintiff could prove her

ADA failure to accommo date claim without engaging in a burden -

shifting analysis).

COPIES FURNISHED:

Brijesh Patel, Esquire

Pinellas County Attorney's Office

6th Floor

300 Court Street

Clearwater, Florida 33756 - 5165

Paul Valenti, Human Rights/ Director EEO Officer

Pinellas Cou nty Office of Human Rights

5th Floor

400 South Fort Harrison Avenue

Clearwater, Florida 33756

Jackie Graham

5906 60th Place East

Palmetto, Florida 34221

Jason Kenneth Smith

Veteran of Foreign Wars Department of Florida

No. 217

9500 Bay Pines Boulevard

St. Petersburg, Florida 33744

(eServed)

Jeremiah Ray Blocker, Esquire

North Florida Lawyers, PLLC

101 Northeast 1st Avenue

Ocala, Florida 34471

(eServed)

W. Jason Odom, Esquire

North Florida Lawyers, PLLC

101 Northeast 1st Avenue

Ocala, Florida 34471

Paul J. Genova, Jr.

Senior Equal Opportunity Coordinator

Pinellas County Office of Human Rights

Fifth Floor

400 South Fort Harrison Avenue

Clearwater, Florida 33756

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final O rder is entitled

to seek judicial review by filing a petition for writ of

certiorari in the circuit court of the Sixth Judicial Circuit in

and for Pinellas County, Florida, within 30 calendar days of the

date of this Final Order. § 70 - 77(14), Pinellas Cnt y . Code.