22-000480 Milaine Marrero vs. Amazon Warehouse Status: Closed Recommended Order on Monday, October 17, 2022.

Summary: Petitioner failed to prove that Respondent committed an act of unlawful disability discrimination or retaliation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ILAINE M ARRERRO ,

Petitioner ,

vs. Case No. 2 2 - 0480

A MAZON . COM S ERVICES LLC , 1

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ), for final

hearing by Zoom teleconference on August 29, 2022.

A PPEARANCES

For Petitioner: Nathaly Saavedra, Esquire

PereGonza The Attorneys, PLLC

5201 Blue Lagoon Drive, Suite 290

Miami , Florida 331 26 - 7015

For Respondent: Catherine H ope Molloy , Esquire

Cayla Page, Esquire

Greenberg Traurig, P.A.

101 East Kennedy Boulevard, Suite 1900

Tampa , Florida 33 602

1 In her Petition for Relief, Petitioner named Amazon.com Services LLC as Respondent. In its

Transmittal of Petition, however, t he Florida Commission on Human Relations ( Ñ FCHR Ò )

identified Respondent as Ñ Amazon Warehouse , Ò which is how the case was docketed . Because

it is undisputed that Amazon.com Services LLC was Petitioner Ô s former employe r, the

undersigned has now amended the case style to conform to this reality .

S TATEMENT OF T HE I SSUE S

The issues in this case are whether, in violation of the Florida Civil Rights

Act, Respondent : (i) s ubjected Pet i ti oner to unlawful disability discrimination

by terminating her employment after she had undergone dental surgery to

extract several teeth that had caused her gums to become infected ; or (ii)

retaliated against Petitioner for engaging in protected activity.

P RELIMINARY S TATEMENT

On October 20, 2021, Petitioner Milaine Marrero (ÑMarreroÒ) filed a

Complaint with FCHR alleging that Respondent Amazon .com Services LLC

(ÑAmazonÒ) had committed unlawful acts of employment discri mination, in

violation of the Florida Civil Rights Act (ÑFCRAÒ), by failing provide a

reasonable accommodation for her disability and by terminating her

employment.

FCHR investigated MarreroÔs claims and, on January 24, 2022, issued a

Determination statin g that no reasonable cause existed to believe that an

unlawful practice had occurred. Thereafter, Marrero filed a Petition for

Relief, which FCHR transmitted to DOAH on February 14, 2022. On

February 22, 2022, the undersigned entered an Order setting the f inal

hearing for April 21 and 22, 2022. The undersigned later granted four

requests to reschedule the hearing . On July 29, 2022, the undersigned

entered an Order setting the final hearing for August 29, 2022, via Zoom

conference .

At the final hearing, Ma rrero testified on her own behalf and called three

additional witnesses, namely: Jaymee Wise, Naike Gabriel, and Vershanda

Williams. PetitionerÔs Exhibits 13, 20, 21, 26, 27, 29, and 30 were received

into evidence. Amazon presented no witnesses but offered RespondentÔs

Exhibits 1, 2, 9 through 11, 14, 17, 18, 20 through 23, 25, 29, and 31 through

35 , which were admitted .

The one - volume final hearing transcript was filed on September 16, 2022 .

The parties timely filed proposed recommended orders , which were

considered in the preparation of this Recommended Order .

Unless otherwise indicated, citations to the official statute law of the state

of Florida refer to Florida Statutes 20 2 2 .

F INDINGS OF F ACT

1 . Amazon hired Marre ro as a Ñ fulfillment associate Ò in January 2020 . She

worked at Amazon Ô s facility in Opa Locka, Florida, where her duties included

locating merchandise in the warehouse and packing items for shipment .

2 . Around 16 months into her Amazon employment, Marrero developed an

infection in her upper gum (periodontitis) , which formed an abscess and

caused facial cellulitis . Th is condition was diagnosed in mid - April 2021 , and

thereafter Marrero arranged to have dental surgery , which was scheduled for

the following month .

3 . On April 30, 2021, Mar rero requested a leave of absence for the

upcoming surgery . Her request was handled, per company policy, by

Amazon Ô s Disability and Leave Services team ( Ñ DLS Ò ) . That same day, DLS

opened a DLS Ñ case Ò for Marrero, which was routine practice.

4 . On May 3, 2021, DLS notified Marrero in writing that she had been

approved conditionally for Family and Medical Leave Act ( Ñ FMLA Ò ) leave

from April 30, 2021, through June 5, 2021. Marrero was instructed to Ñ read

all of the material in this packet, which de scribes your rights and

responsibilities Ò and to Ñ return the enclosed Certification Form Ò because

Ñ Certification is needed to approve leave. Ò

5 . Marrero underwent surgery on May 14, 2021 . Her dentist recommended

that , to facilitate healing , she should avoid dust , eat soft foods , and refrain

from heavy lifting .

6 . Marrero Ô s dentist sent a note to Amazon document ing that she Ô d had

multiple extractions requiring stitches and Ñ need[ed] to rest and return in 2

weeks. Ò With that, Amazon granted Marrero Ô s request for FMLA leave , for

two weeks, from May 14, 2021 , through May 28, 2021 . She would receive

disability pay for this date range.

7 . The Ñ Decision Notification Ò letter informing Marrero of the approval of

her claim for leave also highlighted the follow ing instructions :

You are expected to return to work on May 29, 2021,

or your next scheduled shift. If this date changes,

please contact us immediately to request an

extension. If you do not return to work or request an

extension, you will be held to Amazo n Ô s attendance

policy and have UPT [, i.e., unpaid time,] deductions.

We may request additional documentation in certain

circumstances (for example, if you request

additional time off.)

8 . On May 25, 2021, Marrero called DLS to say that she could not return

to work on May 29 because she continued to be in pain and to experience

sw el l ing . Her next dentist appointment was on May 28 , Marrero stated, and

she was waiting to be released by him to re sume work ing . DLS advised

Marrero that if she wanted to extend her leave, she would need to provide

Amazon with appropriate supporting documentation, e.g., a doctor Ô s note

substantiating the medical necessity for additional time off and the date she

could be expected to return to work .

9 . On May 28, 2021, Marrero Ô s dentist submitted the following Ñ Return to

Work or School Ò form :

10 . The parties disagree as to the meaning of this note . Marrero contends

that the dentist intended to tell Amazon that she could Ñ return to the office, Ò

i.e., to Amazon Ô s warehouse for work, Ñ in 3 weeks , Ò which would have

support ed a request for a n extension of leave to June 18, 2021 . Amazon

maintains , however, that , by circling the word Ñ work Ò , without specifying

when Marrero could do so , the dentist asserted that Marrero was Ñ able to

return to work Ò period , full stop . Thus, Amazon read the note as confirmation

that Marrero could perform her job , at that moment . A ccordingly, A mazon

understood the remark about Marrero Ô s Ñ return [ing] to t he office in 3 weeks Ò

to mean that she had been instructed to be seen in the dentist Ô s office with in

the next three weeks for a follow - up exam .

11 . The dentist Ô s note is ambiguous . Neither party Ô s interpretation is

unreasonable; a case can be made for either. 2 That Amazon Ô s interpretation is

not the only reasonable reading of the note affords an insufficient basis for

the undersigned to infer discriminatory intent . Based upon its reasonable

understanding of the dentist Ô s note, 3 DLS determined that , because Marrero Ô s

doctor had released her to return to work a s of May 28, 2021, which was the

last day of the previously approved two - week FMLA leave , Marrero neither

need ed, nor was even requesting, an extension . Accordingly, DLS did not

intentionally deny a request for additiona l leav e; rather, it close d Marrero Ô s

case on the grounds that she was able to return to work .

12 . Marr ero did not report for duty on May 29, 2021 ( or ever again ) . This

was quickly detected because Amazon Ô s system performs a sweep of time

records twice daily to ident ify employees who might have used more than

their allotted un paid time off ( and hence have Ñ negative UP T Ò in Amazon

jargon) or who might have abandoned their job s . The sy s tem sends out an

automatic e mail to an y employee who appears to have violated the

attendance polic ies . The email warns the employee that he or she might be

dismissed for job abandonment . Then, the matter is assigned to the

company Ô s People Experience and Technology team ( Ñ PXT Ò ) , which decides

ca ses of job abandonment .

13 . On the morning of June 6, 2021 , Marrero received an email from

Amazon notifying her that she had missed two shifts . The email went on to

state that Ñ if you are eligible and require a leave of absence; received

approval for covered absences due to your own personal medical condition; or

2 The undersigned believes that the dentist likely meant Marrero was ready to return to

work immediately for Ñ office Ò duties . Because she worked in a warehouse, however, not an

office; and because the dentist presumably knew that when he wrote the note, it is unclear

whether the word Ñ office Ò was intended as a limitation on her activities .

3 Amazon did not, in fact, regard the note as ambiguous. There is no evidence, therefore, that

Amazon believed it was construing the note in its favor or against Marrero. To the contrary,

Amazon made its decisions in the ordinary course of its regular business practices, unaware

that the matt er was anything other than a routine, noncontroversial transaction.

you believe your absences should be covered by a pre - approved leave Ï please

contact the leave tea m. Ò Marrero was warn ed that Ñ failure to respond or take

action may result in the separation of your employment for job

abandonment. Ò

14 . Marrero did not respond to the a.m. email , nor did she show up for

work . Consequently, that evening, Amazon sent Marrero a second email ,

wh ich notified her that she had missed a third shift. Under Amazon policy, as

the email explained, an employee who has missed three consecutive shifts

without notice is assumed to have voluntarily resigned and will be separated

for job abandonment . The p.m. email instructed Marrero to Ñ please reply to

this email or contact the Employee Resource Center. Ò Marrero did not contact

Amazon.

15 . As a result, PXT opened a job abandonment case for the purpose of

review ing Marrero Ô s employment records to determine whe ther she should be

terminated . T hi s case was closed on June 10, 2021, when, after she had

missed eight shifts , Amazon fired Marrero for job abandonment . Marrero did

not seek review of the decision under the company Ô s appeal procedure.

16 . Amazon Ô s decision to terminate Marrero Ô s employment was taken in

compliance with company policy and was justified under the facts .

Ultimate Factual Determinations

17 . There is no persuasive evidence that Amazon took any actions against

Marrero motivated by discriminatory animus . Indeed, there is no competent,

persuasive evidence in the record, direct or circumstantial, upon which a

finding of unlawful disability discrimination could be made.

18 . There is no persuasive evidence that Amazon took any retaliatory

action against Marrero for having opposed or sought redress for an unlawful

employment practice.

19 . Therefore , it is determined that Amazon did not discriminate

unlawfully against Marrero on any basis.

C ONCLUSIONS OF L AW

20 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

21 . As stated in City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla. 4th

DCA 2008):

The Florida Civil Rights Act of 1992 (FCRA)

prohibits È discrimination in the workplace .

See § 760.10(1)(a), Fla. Stat. (2007) . È Federal case

law interpreting Title VII È applies to cases arising

under the FCRA . Brown Distrib. Co. of W. Palm

Beach v. Marc ell, 890 So. 2d 1227, 1230 n.1 (Fla. 4th

DCA 2005) .

22 . Section 760.10(1)(a) , Florida Statutes, provides that it is an unlawful

employment practice for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate aga inst any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual Ô s race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital

status.

23 . Section 760 .10 (7) provides as foll ows:

It is an unlawful employment practice for an

employer, an employment agency, a joint labor -

management committee, or a labor organization to

discriminate against any person because that person

has opposed any practice which is an unlawful

employment pr actice under this section, or because

that person has made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing under this section.

2 4 . When Ñ a Florida statute [such as the FCRA] is modeled after a federal

law on the same subject, the Florida statute will take on the same

constructions as placed on its federal prototype. Ò Brand v. Fla. Power Corp. ,

633 So. 2d 504, 509 (Fla. 1st DCA 1994) . Therefore, claims for handicap -

based employment discrimination brought under the FCRA are determined

using the analytical framework designed for analogous claims arising under

the Americans with Disabilities Act ( Ñ ADA Ò ), 42 U.S.C. § 12101, et seq., as

amended . See, e.g., Greenberg v. BellSouth Telecomms., Inc. , 498 F.3d 1258,

1263 - 64 (11th Cir. 2007) . Accordingly, federal case law interpreting the ADA

is applicable to cases arising under the FCRA.

2 5 . The ADA prohibits employers from discriminating against a qualified

individual with a disability because of that person Ô s disability . 42 U.S.C.

§ 12112(a) . A Ñ qualified individual Ò is one Ñ who, with or without reasonable

accommodation, can perform the essential functions of the employment

position that such individual holds or desires. Ò 42 U.S.C. § 12111(8) . ADA

cla ims are evaluated using the McDonnell Douglas burden - shifting analysis .

26 . In McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802 - 03

(1973), the U.S. Supreme Court articulated a scheme for analyzing

employment discrimination claims where, as here, the complainant relies

upon circumstantial evidence of discriminatory intent. Pursuant to this

analysis, the complainant has the initial burden of establishing , by a

preponderance of the evidence , a prima facie case of unlawful discrimination.

Failure to e stablish a prima facie case of discrimination ends the inquiry. If,

however, the complainant succeeds in making a prima facie case, then the

burden shifts to the accused employer to articulate a legitimate,

nondiscriminatory reason for its complained - of co nduct. If the employer

carries this burden, then the complainant must establish that the proffered

reason was not the true reason but merely a pretext for discrimination. Id. ;

St. Mary Ô s Honor Ctr. v. Hicks , 509 U.S. 502, 506 - 07 (1993).

2 7 . To state a prima facie case of discrimination in violation of the ADA, a

complainant Ñ must prove that (1) she has a disability; (2) she is a qualified

individual; and (3) she was subjected to unlawful discrimination because of

her disability. Ò See, e.g. , Morisky v. Broward Cnty. , 80 F.3d 445, 447 (11th

Cir. 1996) .

28 . Marrero failed to prove that she had a disability . The ADA defines the

statutory term Ñ disability, Ò with respect to an individual, to mean:

(A) a physical or mental impairment that

substan tially limits one or more major life activities

of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment

(as described in paragraph (3)).

42 U.S.C. § 12102(1).

29 . Ñ [M]ajor life activities include, but are not limited to, caring for

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

standing, lifting, bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, and working. Ò 42 U.S.C.

§ 12102(2)(A).

30 . There is no persuasive evidence that the gum infection from which

Marrero suffered , and for which she underwent surgical treatment,

substantially limited any major life activities . In fact, she continued to work

at all times while she had the infection, right up until the date of surgery .

After the surgery, Marrero had a few limitations, e.g., no heavy lifting, but

these were garden - variety restrictions, common to most surgical procedures .

To be clear, there is no persuasive evidence that Marrero was undu ly harmed

by the surgery or that she experienced any unexpected or unusual

complications . Nor did the operation entail the sort of surgery that would

likely cause a disability by its nature, such as the amputation of a limb.

Rather, Marrero recovered with in a brief period Ð less than six weeks at

most Ð from a procedure (the surgical extraction of teeth) that is, by any

reasonable measure, a routine operation . 4

31 . The ADA Ô s definition of Ñ disability Ò is expansive, but it cannot be

understood as including temporary post - surgical limitations of a routine

nature to facilitate recovery where, as here, the underlying condition

necessitating the surgery did not constitute a disability; the surgery itself di d

not entail the loss of a limb , removal of a major organ , or other inherently

disabling outcome ; there were no exceptional complications arising from the

surgery ; and the patient healed in the ordinary and expected course within a

matter of weeks .

32 . Ac cordingly , because the dental condition for which Marrero was

treated did not constitute a disability under the ADA (Marrero herself does

not contend otherwise ) , and because Marrero Ô s recovery from the surgery was

medically unremarkable, it is concluded that Marrero did not have a

Ñ disability Ò as defined in section 12102(1)(A).

33 . There is no evidence that Marrero had a Ñ record Ò of any kind of

disability . Thus, section 12102(1)(B) is inapplicable.

34 . As for section 12102(1)(C), there is no evidence that Amazon

Ñ regarded Ò Marrero as having a disability . Moreover, section 12102(1)(C) does

Ñ not apply to impairments that are transitory and minor. Ò 42 U.S.C.

§ 12102(3)(B) . Ñ A transitory impairment is an impairment with an actual or

expected duration of 6 months or less. Ò Id . Routine restrictions following the

extraction of teeth to treat a gum infection and abscess, such as the few

limitations placed on Marrero Ô s daily activities for a br ief period , fall squarely

within the definition of a Ñ temporary impairment. Ò

35 . Marrero Ô s failure to make out a prima facie case of disability

discrimination ended the inquiry . Because the burden never shifted to

4 This is not to discount MarreroÔs pain and suffering. Anyone who has had the experience of

recover ing from dental surgery , including the undersigned, can attest to the discomfort

involve d.

Amazon to articulate a legitimate, nondiscriminatory reason for its conduct,

it was not necessary to make any findings of fact in this regard , but the

undersigned has done so anyway based up on competent substantial evidence

adduced at hearing , to avoid leaving t he impression that Amazon lacked

genuine business reasons for its actions .

3 6 . Marrero asserts that Amazon retaliated against her , although the

factual basis for this claim is unclear . Under the FCRA Ô s opposition clause,

Amazon would have been prohibited from retaliating against Marrero

because s he opposed an unlawful employment practice . § 760.10(7), Fla. Stat .

Meanwhile, under the FCRA Ô s participation clause, Amazon would have been

prohibited from retaliating against Marrero for having Ñ made a charge,

te stified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [the FCRA]. Ò Id .

3 7 . To establish a prima facie case of retaliation, Marrero must

demonstrate that : (i) s he engaged in statutorily protected activity; (ii) s he

suffered a materially adverse action; and (iii) a causal relationship existed

between h er protected activity and the adverse action . Goldsmith v. Bagby

Elevator Co., Inc. , 513 F.3d 1261, 1277 (11th Cir. 2008) . If Marrero

establishes a prima facie case, the burden shifts to Amazon to rebut the

presumption by articulating a legitimate non - retaliatory reason for the

materially adverse action . Id . Marrero then must demonstrate that the

articulated reason is a pretext to mask an improper motive . Id . In other

words, Marrero must show that her alleged protected activity was a Ñ but for Ò

cause of her termination . Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338

(2013) .

3 8 . Assuming , for argument Ô s sake , that Marrero engaged in statutorily

protected activity, she failed to prove that s he suffered a materially adverse

action because of such activity . That is, there is no persuasive evidence to

support a finding that but for Marrero Ô s asserting her civil rights in some

way, s he would not have been fired . Rather, as found, Amazon terminated

Marrero Ô s employment because she missed eight shifts in a row and failed to

respond to clear, written warnings advising that she was in jeopardy of being

separated for job abandonment . Marrero Ô s failure to prove a causal

connect ion is a sufficient reason to conclude that a prima facie case of

retaliation was not shown .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order finding Amazon not liable for unlawful disability discrimination or

retaliation against Marrero .

D ONE A ND E NTERED this 17th day of October , 202 2 , in Tallahassee, Leon

County, Florida .

S

J OHN G . V AN L ANINGHAM

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www . doah . state . fl . us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October , 202 2 .

C OPIES F URNISHED :

Nathaly Saavedra, Esquire Mary Ellen Clark, Esquire

(eServed) (eServed)

Catherine Hope Molloy, Esquire Henry Graham, Attorney Supervisor

(eServed) (eServed)

Cayla Page, Esquire Helane Seikaly, Esquire

(eServed) (Address of Record)

Tammy S. Barton, Agency Clerk Mitchell A. Robinson, Esquire

(eServed) (eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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 .