Byrd v. Bt Foods, Inc.

• Decision Date: 14 February 2007
• Docket Number: No. 4D06-600.,4D06-600.
• Parties: Cameshia BYRD, an individual, Appellant, v. BT FOODS, INC., d/b/a Wendy's Coral Springs, a Florida corporation, and Thomas Miko, an individual, Appellees.
• Court: Florida District Court of Appeals

948 So.2d 921

Cameshia BYRD, an individual, Appellant, v. BT FOODS, INC., d/b/a Wendy's Coral Springs, a Florida corporation, and Thomas Miko, an individual, Appellees.

No. 4D06-600.

District Court of Appeal of Florida, Fourth District.

February 14, 2007.

Keith M. Stern and Stacey H. Cohen of Shavitz Law Group, P.A., Boca Raton, for appellant.

Derek A. Schwartz of Derek A. Schwartz, P.A., Boca Raton, for appellee.

GROSS, J.

Cameshia Byrd appeals an order granting final summary judgment in favor of BT Foods, Inc. d/b/a Wendy's Coral Springs on all three counts of her amended complaint alleging human immunodeficiency virus ("HIV") discrimination.¹ Byrd asserted causes of action for violation of (1) the Florida Omnibus AIDS Act, section 760.50(3)(b), Florida Statutes; and (2) the Florida Civil Rights Act, section 760.10(1)(a), Florida Statutes (2004); and for (3) intentional infliction of emotional distress. Finding disputed material issues of fact on the statutory claims against Byrd's employer, we reverse. We affirm the dismissal of the intentional infliction of emotional distress count and all counts against the individual defendant.

The legal parameters of our review are clear. An order granting summary judgment is reviewed de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper "only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available." Shreffler v. Philippon, 873 So.2d 1280, 1281 (Fla. 4th DCA 2004) (quoting Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002)) (citation omitted). "An issue of fact is `material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Chockla, 47 F.Supp.2d at 1368-69 (citing Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997)).

"When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party." City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003). Where credibility issues impact the determination of material facts, summary judgment is not appropriate. See Kuczkir v. Martell, 480 So.2d 700 (Fla. 4th DCA 1985).

Both parties have cited federal district and circuit court cases. To the extent that the federal cases permit summary judgment based on Federal Rule of Civil Procedure 56 as interpreted in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), they are of limited precedential value in Florida summary judgment cases. Florida places a higher burden on a party moving for summary judgment in state court, requiring the movant to: "[S]how conclusively that no material issues remain for trial." Visingardi v. Tirone, 193 So.2d 601, 604 (Fla.1966), see 5G's Car Sales, Inc. v. Florida Dep't of Law Enforcement, 581 So.2d 212 (Fla. 3d DCA 1991); Green v. CSX Transp., Inc., 626 So.2d 974 (Fla. 1st DCA 1993).

In November 2003, Byrd began employment as a cashier at a Wendy's restaurant owned by BT Foods. Early on, Byrd told her supervisor, Rose Johnson, that she was HIV positive. Johnson conveyed this information to the store manager, Lynzell Hicks, who reported it to his supervisor, appellee Thomas Miko.

At the time of Byrd's employment, BT Foods had a policy against discrimination and harassment. Additionally, BT Foods' attendance policy stated that:

If you NO CALL/NO SHOW, you will be required to have a note from an emergency room, etc. or you will be terminated. Phones have been around long enough and most of you should know how to use a telephone by now. If you're not going to be able to make it in to work, you need to call (collect if necessary!), so the manager can get someone to cover your shift.

If an employee called in sick, the policy did not require the employee to produce medical certification; an employee who phoned in and notified BT Foods of an illness-induced absence was able to return to work without providing medical certification, so long as the employee had no "visible condition." Two employees submitted a doctor's note to excuse their absences. For these non-HIV illnesses, management did not question doctor's notes.

In March 2004, Byrd missed work due to a hospital visit related to her HIV condition. She provided Johnson with a copy of a hospital document describing the reasons for her absence, even though Johnson did not require one. During that same month, Johnson told Byrd that she "never told the management team" at BT Foods about Byrd's HIV condition because "[o]nce the higher authority find out that you are sick, you know they're going to try to take this job from you, right?"

In June, 2004, Byrd missed a number of shifts due to her condition. Johnson told her that to come back to work Byrd would need to bring in a doctor's note authorizing her return.

On June 17, Byrd and her boyfriend went to the office of her primary care physician, Dr. Gary Richmond. Nurse Appleby wrote Byrd a "Return to Work Certification" confirming that Byrd was "capable of returning to work after having experienced a bout of gastritis which was secondary to anti-viral medications" Ms. Byrd was then taking for her HIV condition. The certification was a prescription size note containing: 1) the title "Return to Work or School Certification" preprinted on the top; 2) Dr. Richmond's name, address, and telephone number; 3) the handwritten date, 6/17/04; 4) Byrd's handwritten name; 5) the certification that Byrd was under care for gastritis; (5) the indication that Byrd would be able to return to work on June 19; and (6) Nurse Appleby's signature.

Byrd's boyfriend brought the "Return to Work Certification" to Johnson, since Byrd was too sick to submit it herself. Johnson told the boyfriend that she thought the note was a "fake" one that Byrd had "made up on the computer." Johnson told the boyfriend that Byrd needed to provide the restaurant with a "harder" note before she would be allowed to return to work.

In an affidavit filed by BT Foods, Johnson contended that she never saw "any note from a doctor, doctor's office or hospital." Johnson claimed that she saw only a crinkled up piece of paper with a handwritten phone number. On summary judgment, BT Foods argued that Johnson would have been entitled to refuse Dr. Richmond's certification, had she received the note as Byrd claimed.

Construing the record in the light most favorable to Byrd, from mid-June to early July, BT Foods' representatives gave Byrd the runaround: they said they were putting her on the shift she requested, but never did; they promised her a raise that never materialized; they told her to report for work at the Coral Springs restaurant, but failed to put her on the schedule; they dodged her phone calls; they told her to report to Coral Springs for work on July 1, but did not allow her to clock in; and they assigned her to the Turtle Run location, but when Byrd reported for work, none of the managers knew who she was or why she was there.

The trial court granted BT Foods' motion for summary judgment on all three counts of the amended complaint.

Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2004)

The FCRA provides that it is unlawful for an employer to "discharge or fail or refuse to hire any 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." § 760.10(1)(a), Fla. Stat. (2004). The FCRA is modeled after Title VII, so that federal case law regarding Title VII is applicable to construe the Act. See Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 (Fla. 1st DCA 2002).

Although the FCRA does not mention HIV discrimination, this court has recognized that HIV positive status may be a "handicap" within the meaning of the statute. See McCaw Cellular Commc'ns of Fla. v. Kwiatek, 763 So.2d 1063 (Fla. 4th DCA 1999); Solorio v. Am. Airlines, Inc., No. 00-3780-CIV, 2002 WL 485284, *3 n. 2 (S.D.Fla. Feb.28, 2002). As applied to discrimination based on a handicap, the FCRA is construed in conformity with the federal Americans with Disabilities Act (ADA). McCaw, 763 So.2d at 1065. As we discussed in McCaw,

The ADA provides that a "qualified individual" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. 42 U.S.C.A. § 12111(8). If a qualified individual with a disability can perform the essential functions of the job with reasonable accommodation, then the employer is required to provide the accommodation unless doing so would constitute an undue hardship for the employer. 42 U.S.C.A. § 12112(b)(5)(A). Reasonable accommodations to the employee may include, but are not limited to, additional unpaid leave, job restructuring, a modified work schedule, or reassignment. 42 U.S.C.A. § 12112(9)(B).

Id.

To establish a prima facie case of HIV discrimination under the FCRA, Byrd must prove: (1) that she is a handicapped person within the meaning of section 760.10(1)(a); (2) that she is a qualified individual; and (3) that BT Foods discriminated against her on the basis of her disability. See Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir.2000); Pritchard v. S. Co. Servs., 92 F.3d 1130 (11th Cir.1996). The trial court agreed with BT Foods that Byrd did not meet the first and third prongs.

Regarding the first element of a prima facie case, the FCRA does not define the term "handicap." We therefore look to the ADA's definition of a "disabilit...