94-000294 Stephanie Luke vs. Pic N' Save Drug Company, Inc. Status: Closed Recommended Order on Thursday, August 25, 1994.

Summary: Amended Petition dismissed on handicap; Petitioner with amendments not dismissed without motion; on merits: no discrimination by race or retaliation for opposing unlawful practice

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE LUKE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0294

)

PIC N' SAVE DRUG COMPANY, INC., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 24, 1994 in

Ocala, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie E. Luke, pro se

1218 North West 6th Avenue

Fort Lauderdale, Florida 33311

For Respondent: William H. Andrews, Esquire

Coffman, Coleman, Andrews & Grogan, P.A.

Post Office Box 40089

Jacksonville, Florida 32203

STATEMENT OF THE ISSUE

Whether or not Respondent has committed an unlawful employment practice by

discrimination in employment by termination of Petitioner due to her race,

black, or due to her protest of an unlawful employment practice.

PRELIMINARY STATEMENT

Petitioner Stephanie E. Luke filed a Charge of Discrimination against

Respondent Pic N' Save Drug Company, Inc. on April 6, 1993, alleging that she

was discriminated against because of her race. The allegations of

discrimination were investigated by the Florida Commission on Human Relations,

and on November 15, 1993, the Commission issued its Determination finding "no

cause."

After receiving an extension of time, Ms. Luke filed her Petition for

Relief on January 12, 1994, which added the charge that she had been terminated

for opposing unlawful employment practices. On January 13, 1994, she filed a

document styled "Amended Charge of Discrimination as to Particulars," claiming

for the first time that she also had been discriminated against because of a

handicap.

On February 4, 1994, Respondent filed its Answer and Affirmative Defenses

to the Petition for Relief and its Motion to Dismiss the Amended Charge. A

telephonic hearing resulted in the determination that resolution of the issue

raised by the Motion to Dismiss would require evidence or stipulated facts, and

ruling on the motion was deferred until the formal hearing.

At the commencement of formal hearing, Respondent's Motion to Dismiss the

Amended Charge of Discrimination was argued, and facts with regard thereto were

either stipulated or established by evidence.

Respondent did not move to strike or dismiss the portion of the January 12,

1994 Petition for Relief newly alleging discrimination by retaliatory

termination for opposition to an unlawful employment practice and these new

allegations were not struck or dismissed.

Petitioner's Charge of Discrimination filed April 6, 1993 originally only

charged Respondent with discrimination upon the basis of Petitioner's race,

black. Although some of the language therein alluded peripherally to

Petitioner's on-the-job injury and to the employer requiring Petitioner to work

while recovering, the overall allegations of the Charge of Discrimination were

clearly based upon alleged discrimination by race. In fact, Petitioner had the

opportunity to charge discrimination by handicap simply by checking the

appropriate box therefor on the Commission's form and did not. She only checked

the box marked "race." All of her allegations of discrimination contained in

her April 6, 1993 Charge of Discrimination related to her termination on January

10, 1993 and the employer's actions prior to her termination.

The Commission's investigation and its November 15, 1993 Determination: No

Cause was therefore directed only to issues of racial discrimination. Her

Petition for Relief was required by rule to be filed within 30 days.

Petitioner applied for, and received from, the Commission a December 30,

1993 Order granting an extension of time for filing her Petition for Relief.

The Petition for Relief was timely filed, pursuant to that order extending time,

on January 12, 1994. However, attached thereto was an "Amended Charge of

Discrimination as to Particulars" (hereafter referred-to as "the amended

petition for relief") which, for the first time, charged Respondent-employer

with discriminating against Petitioner on the basis of a handicap. All the

allegations contained in the amended petition related to a period of time prior

to her January 10, 1993 termination. Therefore, it is clear that no new factual

allegations were added. If the Commission had been made aware of the handicap

issue in the original Charge of Discrimination it could have investigated,

considered, and entered proposed final agency action thereon in the form of a

"Determination: Cause or No Cause." Under the facts and evidence as argued, it

is clear that the Commission never had that opportunity.

Although Petitioner's January 12, 1994 Petition for Relief upon racial

discrimination grounds is deemed timely upon the foregoing argument and

evidence, the "Amended Charge of Discrimination as to Particulars" filed January

13, 1994 is not.

The better practice is to file a new Charge of Discrimination if subsequent

facts of discrimination unfold. However, amendments to an original charge of

discrimination or petition for relief are sometimes possible, usually only up to

the filing of the Commission's Determination or Redetermination. See, Rules

60Y-4.009, 60Y-4.017, 60Y-5.001(2)(4) and (7)(c) F.A.C. The purpose of the

rules permitting amended petitions, wherein new or partially new grounds may be

alleged is to permit supplemental pleadings of new or unfolding facts, not new

theories of law upon the same old facts, and the rules require specifice

permission from the Commission. 1/ However, this case does not fit such a

scenario. Here the Commission's December 30, 1993 Order only extended the time

for filing. It says nothing about permission to amend the charges.

In this case, Petitioner raised no issue of handicap in her Charge of

Discrimination. In her amendments, the facts and time frame of alleged

discrimination had not changed, only the legal theory. Petitioner and

Respondent have not been interactive since her January 10, 1992 termination.

Consequently, the Respondent had no clear notice it should investigate and

defend against those handicap charges at the Commission level and the Commission

had no opportunity to investigate and review those new charges before referring

the matter to the Division of Administrative Hearings. Therefore, the charges

of discrimination by handicap should be dismissed or struck upon authority of

Austin v. Florida Power Corporation DOAH Case No. 90-5137 (RO entered 6/20/91,

FO entered 10/24/91, filed 10/30/91).

Effective October 1, 1992, the statute of limitations for filing initial

Charges of Discrimination was expanded from 180 to 365 days. See, Section

760.11(1) F.S. [1992]. Since the new charges contained in the amended petition

for relief were filed beyond the 365 days for filing new charges of

discrimination, Petitioner's new charge of handicap was also time-barred by the

statute 365 days after January 10, 1993. See, St. Petersburg Motor Club v.

Cook, 567 So. 2d. 488 (Fla. 2d DCA 1990).

Accordingly, the Motion to Dismiss was granted only as to Petitioner's

January 13, 1994 amended petition based on "handicap."

However, by an oral order in limine, the ruling was made that evidence of

Petitioner's on-the-job injury and recovery and the employer's requirements of

Petitioner in relationship to her injury and recovery would be admissible either

for purposes of proving racial discrimination by Respondent-employer (i.e.

disparate treatment of Petitioner from non-black employees) and for purposes of

proving or refuting as pretextual, Respondent-employer's defense of termination

for insubordination.

Petitioner presented the oral testimony of Derrick Proctor and Standley

Gillings and testified on her own behalf. Petitioner also had thirteen exhibits

marked for identification, of which nine exhibits (numbered 1, 2, 3, 4, 6, 7, 8,

9, and 11 ) were admitted in evidence.

At the close of Petitioner's case in chief, Respondent moved to dismiss for

failure to establish a prima facie case, which motion was denied.

Respondent presented the oral testimony of Patrick Fekula and John Sasse.

Seven of its eleven identified exhibits were admitted in evidence. Respondent's

Exhibits 1, 2, 3, 4, 9, 10, and 11 were admitted in evidence. Exhibit 9 was

admitted only pursuant to Section 120.58(1)(a) F.S.

At the close of all evidence, Respondent moved for summary judgment (sic:

summary recommended order). The motion was denied, subject to revisitation in

this recommended order.

No transcript of the proceedings was provided. All proposed findings of

fact filed on or before July 25, 1995, have been ruled upon in the appendix to

this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is a black female.

2. At all times material, Petitioner was employed by Respondent

corporation in one of its general retail merchandise stores in Ocala, Florida.

3. Petitioner was hired by Respondent's white male store manager, Mr. John

Sasse, on October 20, 1992, as a stock clerk in the shoe department.

4. Petitioner was terminated on January 10, 1993, within the ninety day

probationary period published in Respondent's employee handbook. In making the

foregoing finding of fact, it is recognized that Petitioner attempted to show

that the probationary period for new employees was only sixty days. However,

she only showed that the sixty day period was applicable in a different time

frame than is material here.

5. On October 31, 1992, while working in a stock room, Petitioner's back

and neck were injured when a box fell on her. Supervisors called an ambulance,

and Petitioner was transported to the emergency room of a local hospital. She

was treated but not hospitalized. Respondent duly filed the "Notice of Injury"

as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and

began to pay Petitioner's medical expenses.

6. Prior to her injury, Mr. Sasse considered Petitioner to be only a

marginal employee.

7. Petitioner was released by hospital doctors for return to work as of

November 6, 1992. At that time, she had no work restrictions imposed by a

doctor, so Mr. Sasse reassigned Petitioner to her usual duties.

8. Petitioner worked at the tasks she felt she could do until November 11,

1992, when she returned to the hospital. She was examined and medicated.

9. Later that same day, as is standard procedure with workers'

compensation injuries wherein the employer pays for an injured worker's medical

care and as a result has the legal right to specify which doctors attend the

employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical

facility specializing in occupational medicine. Petitioner went to Care One,

where she was again examined and medicated. Petitioner was released for work

the same day with written work restrictions from the Care One doctor.

10. Petitioner's resentment against Respondent that she had been injured

in the first place apparently was a motivating force in her actions after she

returned to work the second time. Petitioner's candor and demeanor while

testifying, as well as her persistence in returning her testimony to the

circumstances surrounding the box falling upon her in the storeroom, made it

very clear that she considered it discriminatory, or at least unfair, that

Respondent had "forced" her or anyone to work under the cluttered stock room

conditions that had resulted in her initial accident or injury. In Petitioner's

mind, at least, the fact that an accident or injury had occurred in the first

place was sufficient to establish "dangerous working conditions" and "an

unlawful employment practice." After November 11, 1992, she persisted with

these complaints to the employer. However, no competent evidence established a

nexus between Petitioner's race and her pre-injury job assignments, and no

evidence demonstrated that after her accident, the Respondent-employer handled

her workers' compensation medical care any differently because she was black.

11. On November 11, 1992, Care One's written restrictions provided:

Restricted

1. Employee should avoid movements of the

upper body and neck that would place undue

stress on the neck, such as strenuous

pushing and pulling, heavy lifting, and

working above the shoulders.

2. Employee should avoid lifting > 20 pounds,

avoid frequent bending and twisting of the

back, and avoid strenuous pushing and pulling.

12. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks

consistent with Mr. Sasse's interpretation of Petitioner's written restrictions,

as modified over time by subsequent information.

13. On November 11, 1992, a position was created for Petitioner in the

soft goods department. At this time, Petitioner became the only black clerk in

the soft goods department. Initially, Mr. Sasse told her she was not to reach

above her shoulders or bend to pick up anything below her knees. Petitioner

complained that these tasks constituted too much physical exertion for her due

to her physical condition.

14. Petitioner continued to complain about the accident and her pain. The

employer and insurance carrier continued to refer her back to Care One. There

was a short delay with regard to some medical services requested by Petitioner

or by referring and consulting doctors under the workers' compensation medical

care delivery system, but the employer/insurance carrier in due course

authorized physical therapy, a consultation with an orthopedic specialist, and

magnetic resonance imaging (MRI) for further diagnosis.

15. Derrick Proctor, a black male employee and Petitioner's friend,

presented as a credible witness, even though he claimed to have been fired by

Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the

time of formal hearing had some type of action pending against this employer.

Mr. Proctor described Petitioner as "embittered" against the employer because of

the employer's refusal or delay in dealing with Petitioner's medical concerns

and stress. However, it appears that Petitioner's problems, if any, were common

disputes and communication delays inherent in the workers' compensation medical

care delivery system.

16. For instance, when asked, the doctors reported directly to the

employer, insurance carrier, and store manager concerning the Petitioner-

employee's medical condition, consultant treatment, and recovery progress. On

December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report

on her December 9, 1992 MRI results and that they were negative. This

conversation occurred before any of the doctors had reported the MRI results to

the Petitioner, and Petitioner inferred therefrom that information was being

withheld from her. Later, on December 22, 1992, Petitioner learned, during a

reprimand and counselling session for insubordination and failure to work up to

her capacities, that the employer had been informed much earlier that she could

return to work with no restrictions. (See Findings of Fact 32-36) Although Mr.

Sassy and others had told her this before December 22, 1992, the events of

December 22, 1992 triggered a belief in Petitioner that the employer was "out to

get" her.

17. Notwithstanding the extreme light duty assigned her, Petitioner

complained about the work assigned and was uncooperative about helping

supervisors find a job description she felt she could perform.

18. Although Petitioner may not have known about it until November 25,

1992, on November 20, 1992 Care One deleted the prior restrictions on lifting

items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed

her restrictions to the following:

1. Restricted.

Employee should avoid movements of the

upper body and neck that would place undue

stress on the neck, such as strenuous pushing

and pulling, heavy lifting, and work above

the shoulders.

19. In December 1992, Mr. Proctor was required to close his department,

hardware, every night, and Petitioner closed the soft goods department some

nights.

20. Petitioner considered being required to close some nights to be

discrimination against her since she was the only black employee in the soft

goods department at that time and the white female employee in soft goods had

been switched to the day shift in Petitioner's place.

21. The greater weight of the evidence shows that the whole store's

evening hours increased from midnight to 1:00 a.m. due to the Christmas season,

and on December 6, 1992, Petitioner was assigned to work nights so that she

could go to daytime medical and physical therapy appointments. The employer's

accommodation of Petitioner's situation in this respect was comparable to the

accommodation given a white female employee in soft goods. Beginning November

23, 1992, that white female employee, Ms. Audrey, had been assigned to a

daylight shift so that her husband, who had bad night vision, could drive her to

and from work. Race was not a factor in the accommodation rendered Ms. Audrey

or Petitioner.

22. Who closed the store during December 1992 depended upon who worked the

evening shift, not race.

23. It is not entirely clear on the record whether, on December 3, 1992,

Petitioner withdrew from physical therapy because she could not do the weight

training assigned her or was rejected by the physical therapist as a client

because she would not cooperate in weight training. Petitioner testified that

she returned to physical therapy thereafter for ultrasound treatment. It is

clear that Petitioner believed she was rejected by the therapist because she

could not lift the heavy weights assigned her by the therapist as part of

Petitioner's planned recovery. It is also clear that the decision to end the

weight phase of Petitioner's treatment did not have employer input.

24. By December 5, 1992, Petitioner's personally professed physical

limitations and complaints about Mr. Sasse's treatment of her had resulted in

Mr. Sasse accommodating her by creating a "make-work" job description. Under

it, she was asked to push a cart that other employees had hung clothes on; she

was not required to load the car with clothes. She was required only to pick up

single articles of clothing that were left in the women's dressing rooms and

return them to the racks. She was told only to bend if an occasional article of

clothing was found on the floor. She was also told to open dressing room doors

for customers and, if requested, fetch more clothes for them to try on while

they remained in the dressing room. Petitioner was permitted to wear her softly

padded neckbrace at all times, even though she presented no written doctor's

instructions to do so.

25. Petitioner described it as an "agony" imposed on her by the employer

when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the

sales floor in a chair she had removed from the women's dressing room.

Petitioner had previously complained because she had been required to sit for

long hours on a very hard chair Mr. Sasse had provided for her, and this time

she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told

her she must leave the dressing room chair in the dressing room for the

customers, that she was not permitted to sit all the time on the sales floor

where customers could see her, and she must not just sit without doing any work,

until all her work was done. He told her to do a variety of the tasks of which

she was capable, including but not limited to sitting while pricing goods.

Petitioner considered these orders to be contrary to her doctor's limitations

and to constitute "physical abuse."

26. Petitioner repeatedly requested time off with pay so that she could

recover completely through bed rest. Mr. Sasse would not allow her time off for

medical reasons without a doctor's written approval. Petitioner considered this

condition imposed by management to be "abusive."

27. Petitioner described Mr. Sasse as being rude to her on December 6,

1992, when he refused to discuss her accusations of "physical abuse" and her

request for time off in the presence of other employees and customers in the

public buffet area of the store, and walked off, leaving her there. Petitioner

referred to this incident as at least part of her "opposition to unlawful

employment practices" which she believed resulted in her termination.

28. Petitioner presented no evidence that a doctor had ever recommended

that she stay at home and do nothing so that she could heal. From all the

evidence, it is inferred that as a probationary employee, Petitioner had no

accrued sick leave to expend for this purpose.

29. Ms. Gardner was a long-time white female employee who had her doctor's

approval for knee surgery and who required a month of bed rest at home

afterwards. The employer allowed Ms. Gardner to use earned compensatory time as

sick leave for that purpose during the month of December 1992.

30. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner

refused to do every job he devised, even the "make work" ones, and he believed

that she only pretended to be busy when he was watching her.

31. Mr. Sasse had told Petitioner that she could do normal work again and

she would not accept this from him without hearing it also from her doctor.

32. Mr. Sasse decided to discipline Petitioner for not working up to her

limitations as he understood them and for insubordination. He directed the soft

goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner.

Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with

Petitioner on December 22, 1992 to discuss the contents of the prepared memo.

33. One of the supervisors' concerns at the time Petitioner was "written

up" was that they could not get Petitioner to do anything at all without an

argument, even after pointing out various light work job duties on a walk around

the whole store. They were also concerned that without Petitioner doing some

tasks, the employer had to pay other employees overtime to accomplish what

Petitioner was not accomplishing in her regular shift hours.

34. It was stipulated that Petitioner was never asked to work overtime.

35. Petitioner refused to sign the December 22, 1992 memorandum of

reprimand because she did not agree with it and because Tyler and Harding were,

in her opinion, "grudgeful."

36. Petitioner was informed later on December 22, 1992 by her Care One

doctor that he had, indeed, released her for normal work activities effective

December 16, 1992. His December 16, 1992 report which had been previously

received by the employer read:

Please note employee's current duty status is

as follows:

1. Regular

May return to normal work activities full

time.

37. After her accident, Petitioner was observed by Derrick Proctor doing

some of the same types of physical exertion the employer had required that she

do before the accident, including reaching above her head to put clothes on and

take them off clothes racks and picking clothes up from the floor, but he never

knew her medical restrictions other than what she told him. He also observed

her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing

a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when

talking to the Petitioner. At first, he stated that he did not consider

Petitioner to be rude or insubordinate on these occasions because the topic was

working conditions, but later he admitted that he could not overhear what was

actually said on all these occasions. Mr. Proctor also observed that, "Mr.

Sasse rode everybody pretty hard," including white workers. It was "his way of

getting things done." Mr. Proctor once observed Petitioner hiding in another

department, behind racks, to avoid management. Petitioner acknowledged and

described her "hiding out" at that time to Mr. Proctor as due to her "feeling

mistreated" and "avoiding management." In her formal hearing testimony,

Petitioner described it as "opposing unlawful work practices and abusive

treatment."

38. After learning on December 22, 1992 of her release from all medical

restrictions, Petitioner continued to be uncooperative with management.

Petitioner's testimony conceded that she had understood that all doctors had

released her with no restrictions as of December 28, 1992 and that she had still

refused to reach and bend in the stock room when ordered to do so by Mr. Sasse

and Ms. Tyler on January 7, 1993.

39. After evaluating Petitioner's continued failure or refusal to perform

even the lightest of duties, Mr. Sasse decided to terminate Petitioner before

her ninety days' probationary period ended.

40. Mr. Sasse, who was terminated by Respondent-employer sometime later in

1993 and who, at the time of formal hearing, was litigating an unemployment

compensation claim against Respondent, had no reason to fabricate information or

testify favorably for the Respondent-employer. He was credible to the effect

that the decision to terminate Petitioner in January 1993 was his unilateral

decision and that he made his decision without reference to, or motivation by,

Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment

that Petitioner could physically do the light work he assigned her after

reasonable accommodation for a temporary disability but that she would not do

the work assigned by him that caused him to terminate her.

41. Petitioner testified that she was replaced by a white female. In

fact, a white female was hired approximately one or two weeks prior to

Petitioner's January 10, 1993 termination, with a due date to report to work on

January 11, 1993, which subsequently turned out to be the day immediately

following Petitioner's termination. The employer did not hire this white female

with the intent of replacing Petitioner, but she was ultimately placed into the

soft goods department.

42. Mr. Proctor testified that other blacks worked in soft goods after

Petitioner's termination.

43. Within four weeks of Petitioner's termination, three new employees

were hired. None of these were assigned to the soft goods department.

44. Mr. Standley Gillings, a black male, was originally employed in

another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted

with a loss of pay and transferred to the store from which Petitioner had been

fired ten months earlier. His new immediate supervisor in that store was also

black. Respondent continued to employ Mr. Gillings under the black supervisor

until Mr. Gillings found another job and quit.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

46. Under the provisions of Section 760.10 F.S. it is an unlawful

employment practice for an employer:

(1) (a) ...to discharge or to fail or refuse

to hire an individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(7) ...to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice 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.

47. The United States Supreme Court set forth the procedure essential for

establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which was then revisited in

detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the Burdine formula, the

employee has the initial burden of establishing a prima facie case of

intentional discrimination, which once established raises a presumption that the

employer discriminated against the employee. The preeminent case at the present

time in Florida is still Department of Corrections v. Chandler, 582 So. 2d 1183

(Fla. 1st DCA 1991).

48. When an individual alleges he has been subjected to "disparate

treatment," the standards of proof require that the Petitioner show the

existence of "actions taken by the employer from which one can infer, if such

actions remain unexplained, that it is more likely than not that such actions

were "based on a discriminatory criterion illegal under the Act." See, McCosh

v. City of Grand Forks, 628 F. 2d 1058 (8th Cir. 1980), and Furnco Const. Co. v.

Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978), citing Teamsters

v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396

(1977). Once a Petitioner establishes this prima facie case, the burden shifts

to the employer to rebut the adverse inference by articulating "some legitimate

nondiscriminatory reason for the employee's rejection." See, McCosh v. City of

Grand Forks and McDonnell Douglas Corp. v. Green, both supra. But even if the

employer meets this burden, the complaining party is given the opportunity to

show that the proffered evidence is merely a pretext for discrimination, Id. at

804-05, 93 S. Ct. at 1025. See, generally, Kirby v. Colony Furniture Co., 613

F. 2d 696 (8th Cir. 1980).

49. Petitioner has established a prima facie case in that she is a member

of the black race, one of the statutorily protected classes, and that she was

terminated. However, Respondent has articulated and substantiated

nondiscriminatory, non-racial reasons for her termination. Petitioner has

failed to show that these reasons are pretextual. She has not established a

prima facie case as to her allegations of discrimination based upon opposition

to an unlawful employment practice.

50. Whatever Petitioner thought was dangerous about Respondent's stock

room was never spelled out in this record, but assuming, arguendo, that

Respondent was responsible for the October 31, 1992 accident, Petitioner's legal

recourse was the workers' compensation process established under Chapter 440

F.S. or a state or federal OSHA complaint. Disputes about clutter, even when

they rise to the level of creating on-the-job accidents, are not the type of

activity protected by Section 760.10(7) F.S. Nor do Petitioner's complaints

about pain or bona fide job requirements rise to the level of statutorily

protected "opposition to an unlawful employment practice."

51. This employer and employee clearly had communication problems, and

some tasks assigned Petitioner may have been assigned to her before she was

informed by her doctors that she could safely do the assigned work. Petitioner

mistrusted her supervisors' oral communications of her doctors' orders. To that

minimal extent, the employer's perceptions of insubordination and reprimands for

insubordination through December 22, 1992, may have been unjust. They were not,

however, discriminatory on the basis of race.

52. Regardless of what was actually said between Mr. Sasse and the

doctors, Mr. Sasse's interpretations of the doctor's written instructions was

reasonable and credible at each stage without any further oral interpretation.

Moreover, there is no persuasive evidence that Mr. Sasse interpreted the

doctors' written work restrictions based upon Petitioner's race, black.

Requiring a doctor's certificate as a condition for time off with pay is a

common and reasonable requirement of most employers. Ms. Gardner's and Ms.

Audrey's situations are not comparable to Petitioner's and do not demonstrate

racial discrimination. Mr. Gillings' testimony is not probative of anything in

the relevant time frame. It certainly does not support a finding of

discrimination, and, if anything, shows only that Respondent promoted, demoted,

and transferred blacks on an equal basis with other employees nine months after

Petitioner was terminated.

53. All Petitioner's supervisors genuinely believed Petitioner was being

insubordinate in refusing to do the tasks they safely knew she could do.

Whether or not the supervisors' perceptions and reprimands for insubordination

through December 22, 1992, were minimally unjust or not is not legally

significant since their actions were not discriminatory. "An employer 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." See, Nix v. WLCY Radio Rahall Communications, 738 F.2d. 1181 at 1187

(11th Cir. 1984). See also, Loeb v. Textron Inc. 1600 F.2d. 1003 (1st Cir.

1979). It is a particularly clear application of that premise where, as here,

the employee has not successfully completed even a probationary period. See,

Baucham v. Florida Department of Professional Regulation, DOAH Case No. 89-0712

(RO entered 11/3/89; FO entered 1/11/90 and filed 1/16/90).

54. After December 22, 1992, there is no question at all that Petitioner

refused to do tasks she knew she was medically capable of doing. Her temporary

disability with some residual pain clearly does not meet the case law

definitions of "handicap," and even if it did, this employer made reasonable

accommodation therefor. Respondent's termination of Petitioner on January 10,

1993 for insubordination was neither discriminatory nor unreasonable.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order

dismissing the Petition for Relief.

RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August, 1994.

ENDNOTE

1/ For instance, an amendment might be possible to allege additional dates of

unremitting racial discrimination after the last date listed in the original

charge of discrimination, or alleging retaliatory termination for filing the

original charge of discrimination, or alleging intimidation during the

Commission's investigatory phase. Such amendments, however, require Commission

permission and are dependent upon the case-by-case circumstances and applicable

case law, and presumably the added allegations would have to be merely

supplemental allegations that could not reasonably have been made in the

original charge of discrimination.

APPENDIX TO RECOMMENDED ORDER 94-0294

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1 Accepted only that Petitioner was hurt on the job. Respondent's

negligence was not proven. Covered in FOF 10.

2 Accepted, except that unnecessary, subordinate, and/or cumulative

material has not been utilized.

3-7 Rejected as findings of fact and as not proven. Otherwise rejected

as a conclusion of law. Moreover, the issue of "medical discrimination" was

truncated by ruling on the motion to dismiss (See, "Preliminary Statement") and

no charge of retaliatory discharge was ever filed.

Respondent's PFOF:

1-6 Accepted, except for date of January 16, 1993 which is contrary to

all testimony and only appears on Exhibit R-11 filled in after termination.

7 Covered in FOF 40. Spelling corrected.

8-18 Accepted, except that unnecessary, subordinate, cumulative

material and/or mere legal argument was not utilized. Also, anything that

depends exclusively upon hearsay outside of the parameters of Section

120.58(1)(a) F.S. has not been utilized, and spelling and gender have been

corrected pursuant to the record evidence.

COPIES FURNISHED:

Ms. Stephanie Luke

1218 N.W. 6th Avenue

Ft. Lauderdale, FL 33311

William Andrews, Esquire

Coffman, Coleman, Andrews & Crogan

Post Office Box 40089

Jacksonville, FL 32202

Sharon Moultry, Clerk

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird

General Counsel

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.