Petition for Writ of Certiorari — W. W. W. Enterprises, Inc. v. Pidal

961316 DEC 1 8 19%

DOCKG#HICH OF _THE CLERK

IN THE

\ SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

W.W.W. ENTERPRISES, INC.

d/b/a WILLIAMSON OF HOMESTEAD,

Petitioner,

VS.

JESUS PIDAL,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MURRAY HUDSON, ESQUIRE

COUNSEL OF RECORD

HOGG ALLEN NORTON & BLUE, P.A.

121 MAJORCA AVE

CORAL GABLES FL 33134

| RECEIVED a

ADAMS & QUINTON, P.A.

FEB 1 g 1997 80 S.W. 8 STREET, SUITE 2150

OFFICE OF THE CLERK MIAMI, FLORIDA 33130

SUPREME COURT, U.S. COUNSEL FOR PETITIONER

QUESTION PRESENTED:

Does St. Mary’s Honor Center v. Hicks, ee a ee

S.Ct. 2742, 125 L.Ed.2d 407 (1993), apply to claims under the

Americans with Disabilities Act, and if so is it improper for a finder

of fact to conclude that the Appellee, Pidal (Plaintiff below) met his

ultimate burden of proving discrimination where Appellee was

terminated for drinking on the job in violation of company policy,

the Appellant, “Williamson Pontiac, Cadillac and Mazda”

(Defendant below) was unaware of other employees drinking on the

job, and where Plaintiff was re-hired after medical leave with no

obligation under law or company policy to do so, prior to the time

that Plaintiff was terminated?

LIST OF PARTIES

Rule 29.6 Statement

There are no parties to this proceeding who are not revealed

in the caption of this case.

Petitioner, W.W.W. Enterprises, Inc. is a _ Florida

corporation organized and existing under the Laws of the State of

Florida. It is owned cooperatively by its members, and its shares

are not publically traded.

il

TABLE OF CONTENTS AND CITED AUTHORITIES

PAGE

QUESTION PRESENTED ................... i

ES ii

TABLE OF CONTENTS AND CITED AUTHORITIES ..._ iii

STATEMENT OF JURISDICTION ............... Vv

STATUTES INVOLVED IN THE CASE |

EO Ee vi

STATEMENT OF THECASE .................. l

es leg og aly! Sed & xo wk ne 18

Se 32

Anderson v. Sheppard, 770 F.2d 165 (6th Cir., ie

Brown v. Brown & Williamson Tobacco, 70 FEP Cases 1211 (N.D.

na ei oe 5 ou kos eb wed 'e eb ee ee 20

DeLuca v. Winer Industries, Inc., 53 F.3d 793, 798 (7th Cir.,

GN AS Se ee 18

Hindman v. GTE Data Services, 3 AD Cases 641 (M.D.

I 18

Se ee 23

ill

Patterson v. Downtown Med. and Diagnostic Center, 866 F. Supp.

Sve Ce FE PD celle yo od Pt oe ee 18

Smith v. Upson Cou.;:y, Ga., 859 F. Supp. 1504 (M.D. Ga.

RPG 685 aS Sele ee Cie iGk eee eae tee 18

St. Mary’s Honor Center v. Hicks, _ U.S. _, 113 S.Ct. 2742,

AZO £,008-ae SOT CIGNS) 6 cen ee Vee eles i, 18, 19

Szymanska v. Abbott Laboratories, 3 AD Cases 748 (N.D. III.

SE Sia 6 6 Se EN ae ee eee 28, 30

CEPORD snc cle Bs ewe ae Oe ee ee eee ee 19

West v. Russell Corp., 868 F. Supp. 313 (M.D. Ala., 1994) 19

iV

2 SD Pate SP aN ES

bab San SORE eb dS Laer She (hein of

DONE A Aaa cA RA EOE BR oa 5 Ak ASA a EES, OPED TEM Me fd Tat et ee

ier

STATEMENT OF JURISDICTION

On October 26, 1996, the Appellate Court for the Eleventh

Judicial Circuit entered its mandate affirming in part, and reversing

in part the Decree of the District Court for the Southern District of

Florida and Remanded the cause to the District Court for

recalculation of back pay award. On November 18, 1996,

Petitioner timely filed a Motion to Recall Mandate.

On December 13, 1996, the Appellate Court for the Eleventh

Judicial Circuit denied the Motion to Recall Mandate.

Petitioner invokes this Court’s jurisdiction under 28 U.S.C.

§1254(1).

STATUTES INVOLVED IN THE CASE

Americans With Disabilities Act of 1990

42 U.S.C. §12102 et seq.

Pertinent text of the Act is set out in the Appendix in accordance

with Rule 14(1)(i) of the Supreme Court Ruie

——- _s “

Ce eee ee ee

Vi

STATEMENT OF THE CASE

The Defendant is a corporate enterprise which consists of an

automobile dealership in Homestead, Florida doing business as

“Williamson Pontiac, Cadillac and Mazda" /( "Williamson",

"Company"). There are eight (8) Departments within the Company,

inciuding, but not limited to, the "Used Car Department." The

“Used Car Department" employs a manager, salespersons, and two

(2) automobile "porters."

In April 1991, the Defendant employed Mr. Jesus Pidal as

one of its two Used Car porters (TR. Vol. * pe. 34/25 -

pg.36/5).!

On February 8, 1992, Mr. Pidal was taken to a local hospital

for observation after coniplaining of chest pains, which were not

determined to be a heart attack (TR., Vol. 4, pg. 17/2-25; TR. Vol.

—

' Citations to the transcript of the trial appear as "TR." followed

by the corresponding volume number, the corresponding page

number, and a designation of the relevant lines on each page.

2, pg. 38/21- pg. 39/3; pg. 91/4-11). Thereafter, Mr. Pidal did not

seek to return to work again until July 1992.

The Company’s employee medical leave policy in 1992

provided a thirty (30) day period in which the employee would be

maintained on the Company’s self-insured health plan as if he or she

had not left work. After thirty (30) days, the employee was

considered separated from the Company’s employ and he or she

would be provided the appropriate COBRA notification (TR. Vol.

5, pg. 21/3-9). If the employee returned to his or her position

within sixty (60) days, there was no job guarantee, but s/he would

be re-employed in either the former position or an equivalent if

available; and, should the employee not return until after the sixty

(60) day period, there was no employment guarantee but he or she

would be given priority in applying for available employment

positions (TR. Vol. 5 pg. 21/1-24, & pg. 24/1- 25/5).

During his absence from work, Mr. Pidal admitted himself

to hospitals on two other occasions, once after having an argument

at home with his son, and eventually underwent arterial bypass

2

surgery on March 3, 1992 (TR. Vol. 4, pg. 14/ 16-23). The

Defendant extended it’s employee medical leave policy for Mr.

Pidal beyond the usual thirty (30) day period, to include coverage

of his March 3rd surgery under the Defendant’s health insurance

plan (TR. Vol. 4, pg. 8/11-13 & 23-25).?

By all accounts Mr. Pidal’s surgery was successful (TR.

Vol. 2, pg. 94/24-25}. On May 30, 1992 Pidal was examined and

informed that he was in "excellent" cardiac condition (TR. Vol. 4,

pg. 9/13-20; pg. 10/1-10). In fact, Pidal’s physician advised him,

"there would be no [cardiac] reason not to go back to work," or

otherwise resume his normal activities (TR. Vol. 4, pg. 11/1-8; 9-

25, pg. 12/1-6; and, pg. 12/14-19.

Without returning to work, Mr. Pidal again saw his doctor

for testing and examination on June 5, 1992 (TR. Vol. 4, pg.

*Mr. Pidal ieft the work place on February 8, 1992; the

Company, however, extended Mr. Pidal’s coverage under the

Company health plan through the end of March 1992 (TR. Vol. 5,

pg.20/13-25; Plaintiff's Ex. 3, Company correspondence to Pidal

dated 3/19/92, notifying him of COBRA rights effective April 1,

1992).

10/11-14). Pidal again achieved "excellent" test results and the

doctor “felt he was in good cardiovascular condition at that time"

(TR. Vol. 4, pg. 10/15-20). The doctor "gave no reason he [Pidal]

should not go back to work because of his heart" (TR. Vol. 4, pg.

11/1-8). The Plaintiff, however, made no attempt to return to work

until sometime in July 1992 (TR. Vol. 5, pg. 45/8-12).

After Mr. Pidal left the workplace in February 1992, the

Defendant employed another individual to perform the functions of

the second Used Car Porter position. The Defendant’s employee

medical leave policy provided no guarantee of re-employment

beyond thirty (30) days after the initiation of a medical absence, and

there is no dispute that all times, the employee hired in February

satisfactorily performed his job (TR. Vol. 2, pg. 61/21).

Approximately five (5) months after he left the workplace, however,

Mr. Pidal sought to return to work at his former position (TR. Vol.

2, pg. 33/22, pg. 34/200, pg. 37/20, pg. 38/6).

There is no dispute that the Company possessed no

obligation to re-hire Mr. Pidal at the time he sought to return to

4

work, and the individual who had replaced the Plaintiff was

satisfactorily performing his duties. Mr. Gregory Wurl, the

Company’s General Manager, felt no obligation to re-hire the

Plaintiff but had a “big heart" and wanted to help Mr. Pidal with his

employment. Thus, Mr. Wurl requested that Pidal obtain a doctor’s

release to return to work, a request which the Plaintiff himself

admits was reasonable under the circumstances (TR. Vol. 3, pg.

36/20-23).

On July 24, 1992, a doctor Walter L. Bringaze III, provided

Plaintiff with a written release expressly stating that Plaintiff was

“now able to return to work without restrictions" (TR. Vol. 2, pg.

49/9-15). Not only did the Plaintiff obtain a complete release to

return to work “without restrictions", but Mr. Wurl was also

informed by Mr. Jorge Mas, Pidal’s former supervisor, that he had

spoken directly to the office of Pidal’s physician and was informed

that the Plaintiff was "better than ever." (TR. Vol. 2, pg. 49/11-

pg.50/4). Further, Mr. Pidal never requested any accommodation

of any type necessary to perform any employment position with the

Defendant (TR. Vol. 3, pg. 38/5-21).

Thus, the Defendant re-hired Mr. Pidal on August 3, 1992,

in the same position as he previously held, with the same pay,

hours, and working conditions (TR. Vol. 2, pg. 105/20- pg.

106/25). At no time did the Plaintiff inform the Defendant that he

was unable to perform any function, duty, or responsibility of his

employment, with or without any accommodation (Id., see, also,

TR. Vol. 3, pg. 38/25 - pg.39/1).

The Plaintiff's re-employment, however, was possible only

after the Defendant transferred the incumbent Used Car porter to

another position (TR. Vol. 2, pg. 61/18-20).

Thereafter, on the evening of August 4, 1992, three (3) co-

workers saw Mr. Pidal sitting in a company vehicle in a public

parking lot, while on duty, and having a drink. The witnesses

reported they had seen Pida! drinking a beer (TR. Vol. 2, pg. 52/9 -

4

3

q

14; Vol. 5, pg. 81/10 - pg. 83/18: pg. 76/4-20).° There is no

dispute that drinking an alcoholic beverage while in a company

vehicle, in public and on duty, is a violation of company policy.‘

Accordingly, Mr. Wurl, on the morning of August Sth,

informed the Plaintiff that his employment was terminated due to

the beer drinking incident. (TR. Vol 2, pg. 51/21 - pg. 52/1-20).

In spite of the above unequivocal facts, the theory of liability

presented by the Plaintiff concerning his ADA claim consisted of

* At trial, Pidal denied that he drank a beer, contrary to Pidal’s

own sworn affidavit given to the EEOC which admitted such (TR.

Vol. 4, pg. 40/20 - pg. 43/14: see also, TR. Vol. 5, pg. 63 - pg.

68/16). The Plaintiff also attempted to show that other employees

of the Defendant drank alcoholic beverages while at lunch, but was

unable to show that Mr. Wurl was aware of such, or that any such

individual was employed in a porter position as Pidal and was

witnessed drinking an alcoholic beverage in a company vehicle on

a public premises.

* On December 31, 1991, the Defendant disseminated a

memoranda which explained "misuse of company vehicles or

company license plates will be grounds for immediate termination".

The rule was in effect as of August 1992 (Defendant’s Exhibit 1:

TR. Vol. 2, pg. 67/9- pg.68/1). It is undisputed that drinking a

beer in a company vehicle while performing a company duty is

misuse of a company vehicle (TR. Vol. 2 pg. 68/2-5).

7

the accusation that Mr. Pidal was terminated from employment on

August 5, 1992, because the Defendant perceived that he was a

future insurance risk. In an attempt to prove the Defendant was

motivated by such a perception, the Plaintiff relied exclusively upon

unreasonable opinion, speculation, inferences, and misconstruction

of the testimony of Mr. Jorge Mas concerning a couple of

conversations about the Plaintiff which occurred prior to the time of

any decision to re-hire Mr. Pidal. The Defendant respectfully

highlights such testimony below.

TESTIMONY OF JORGE MAS

Each Friday morning, the Company held meetings with its

managerial employees wherein the general operation of the

dealership was discussed (TR. Vol. 2, pg. 40/19 - pg.41/18; pg.

41/23-25; & pg. 42/7-10). At trial, Plaintiff's counsel asked Mr.

Mas to tell the jury what was said concerning Mr. Pidal during the

weekly meetings while he was away from work. Mas responded:

“Basically, on a couple of occasions,

how he was doing. On a couple of

occasions, what were we going to do

8

as far as bringing him back. There

were at the time 2 porters existing"

(TR. Vol. 2, pg. 42/7-10).

Plaintiff's counsel then questioned: "What else was

discussed?", and Mas responded, "That’s all -- you know" (TR.

Vol. 2, pg. 42/19-20).

Plaintiff's counsel further asked Mas whether, during the

staff meetings and prior to the Plaintiff returning to work, the

subject of terminating the Plaiatiff from employment was ever

discussed?" Mas replied, "Not actually terminating him, but well,

what were we going to do with a third porter, and was there a need

for a third porter" (TR. Vol. 2, pg. 43/6-11)°.

5

Mas was subsequently asked “when" the subject of the

Plaintiff’s ultimate termination from the company was first brought

up and he "guessed" that "it" was July (TR. Vol 2, pg. 44/16-24).

Mr. Mas clarified that any such discussion would have occurred

before Mr. Pidal was re-hited (TR. Vol 2, pg. 44/21- pg. 45/1,

emphasis added). Mas also agreed there was "resistance" on the

part of Messrs. Wurl and Victor to bringing back Mr. Pidal (TR.

Vol 2, pg. 46/2-15), and testified that "[a]gain, because of the extra

employees. Also the health insurance problem" (TR. Vol. 2, pg.

46/16-18). And, Mas testified there was concern Mr. Pidal "cost the

company a lot of money, and maybe was not healthy enough to

come back and continue his work, and that he may get sick again"

9

Counsel then asked who brought up the idea of firing the

Plaintiff, and Mas testified that he could not "recall."° Mr. Mas,

however, expressly denied the suggestion that anyone “came up

with an idea as to how to get around the Pidal problem." Mas

testified: "No, I can’t say someone had an idea, but Mr. Wurl

wanted to make sure he could continue to work and he asked for a

doctor’s okay" (TR. Vol. 2, pg. 47/16-20).

On re-direct examination, Mas clarified what he remembered

Mr. Wurl saying about Mr. Pidal: "To the best of my memory,

what I remember him [Wurl] saying, ‘before we even consider

letting him return, let’s make sure that he can get a doctor’s letter

that he is going to be able to work out there. See if he can come

up with that’" (TR. Vol. 2, 77/13-21; see, also, pg. 78/21-79/3).

(TR. Vol. 2, pg. 46/21-25).

° Mas, however, was allowed to speculate, over objection, that

"it would have to be" either Mr. Victor or Mr. Wurl (TR. Vol 2,

pg. 45/7-14).

10

Mr. Mas further testified, however, that the Defendant was

not obligated to re-hire-Mr. Pidal, and Mr. Wurl did not believe he

was so obligated (TR. Vol. 2, pg. 60/17-21). Mas also testified that

Mr. Wurl had "a big heart" and wanted to help Mr. Pidal by re-

employing him (TR. Vol. 2, pg.61/10-17). The Plaintiff himself

admitted that Wurl’s request for a medical release was reasonable

“due to the circumstances" (TR. Vol. 3, pg. 36/20-23).

THE COMPANY HEALTH INSURANCE PLAN

The Company maintains a self-insured, employee health

benefits plan ("Plan"). The Plan was designed by Mr. Gregory

Wurl, the Company’s General Manager, and the Company’s

President and CEO, Mr. Edward Williamson, III’ (TR. Vol. 5, pg.

25/6-11; pg.11/7-20). The individual monthly premium payments

for the Plan are determined by an independent organization which

conducts a census of the Company’s needs and establishes a

"premium equivalent" for each employee (TR. Vol. 5, pg. 28/1-12).

” Mr. Wurl deceased prior to the initiation of this litigation.

(TR. Vol.5, pg.7/22-24).

11

The employees contribute the majority of premium payments with

the Company off-setting a small portion thereof. (TR. Vol. 5, pg.

28/1-12).

The Plan is designed to accumulate a reserve fund (the

employee/employer contributions), which is utilized to purchase an

HMO plan that covers health care claims with costs up to, and

including, $45,000.00 a year, per employee (TR. Vol. 5, pg. 28/1-

12; pg. 30/1- pg. 31/12). The Plan also has independent insurance

policy referred to as a "stop-gap policy" which insures health

expenses for an employee which exceed $45,000.00 in a single year

(TR. Vol. 5, pg. 52/6-11). Thus, the health insurance claims of

employees cannot adversely impact the Defendant’s health care plan

or premium payments (TR. Vol. 5 pg. 62/5-12).

At the end of 1991 and 1992, the Plan’s reserve fund had

an excess of at least $80,000.00 and $50,000.00, respectively (TR.

Vol. 5, pg. 31/19 - pg. 32/3). An employee continues to participate

in the plan whether he is paying his share of the premium while

employed, or the entire premium while on COBRA (TR. Vol. 5,

12

pg. 22/10-17). There is no impact upon the plan as a result of any

employee paying premium costs while on COBRA (TR. Vol. 5, pg.

22/10-17). Effective April 1, 1992, the Plaintiff paid his COBRA

premium for three (3) months (TR. Vol. 2, pg. 96/12-25). Mr

Pidal’s claims in 1992 - prior to his release to return to work

without restriction - did not reach the $45,000.00 level (TR. Vol.

5, pg. 5; pg. 34/14-18).

COMPLETE LACK OF ANIMUS/INTENT TO DI RIMINATE

AGAINST INDIVIDUALS SIMILARLY SITUATED TO THE

PLAINTIFF

The Company has employed and re-employed a number of

individuals similarly situated to Mr. Pidal, i.e., those who have

suffered major medical problems, made insurance Claims, and

remained or returned to the Defendant’s employ.

Mr. Mas testified that during the same Manager Meetings

where Pidal was allegedly mentioned, another employee, Mr. Jorge

Labrada, was discussed "{b]ecause they were incidents that

happened pretty much around the same time" (TR. Vol. 2, pg.

63/1-7). Mr. Jorge Labrada is a fifty-nine (59) year old individual

13

who was originally employed by the Company in 1990, as an

autemobile painter (TR. Vol. 5, pg. 69/6-10). On February 2,

1992, Mr. Labrada was severely burned in @ fire at his farm,

requiring a leave of absence from work and substantial medical

treatment (TR. Vol. 5, pg.69/15 - og. 70/5). At the Company’s

request, Mr. Labrada received a doctor’s release to return "to full

job duty", without any restrictions on June 14, 1992 (TR. Vol. 5,

pg. 71/3-25).

The Plaintiff's health insurance claims in 1992 charged to the

Company Plan totaled $33,000 (TR. Vol. 5, pg. 34/14-18; pg.

41/17-20). Mr. Labrada’s health insurance costs for 1992 totaled

approximately $45,000.00 (TR. Vol. 5, pg. 37/22 - pg.38/2). On

June 14, 1992, Mr. Labrada returned to the Defendant’s employ

and was Offered the opportunity to re-join the company health care

plan, but voluntarily chose to utilize the plan established at his

wife’s place of business (TR. Vol. 5, pg. 72/21-23). Labrada

remains employed to date, without incident (TR. Vol. 5, pg. 72/2-

6).

14

In addition to Mr. Labrada, the Company introduced specific

evidence of four (4) similarly situated individuals:

1) a sixty-five (65) year old New Car salesman who

experienced heart problems approximately ten (10) years

earlier, and had a re-occurrence in 1991-1992 which

required two angioplasty procedures. The individual

remains employed even though his medical expenses

exceeded the Health Plan’s stop-gap policy (TR. Vol. 5, pg.

38/3-25, pg.39/3-4);

2) a sixty-two (62) year old salesman, diagnosed with

cancer in 1991, who remained employed with a reduced

work schedule until his death in 1993 (TR. Vol. 5, pg.

48/21-49/1);

3) a sixty-three (63) year old Service Advisor who suffered

a heart attack in 1991 or 1992 and underwent open heart

Surgery. The individual is currently on COBRA and

continues to work with the Company on a reduced schedule

(TR. Vol. 5, pg. 40/7-22; pg. 50/2-4); and,

4) a sixty (60) year old salesman, diagnosed and treated for

a “glandular problem", who was re-hired after a six (6)

month leave and remains employed (TR. Vol. 5, pg. 40/24-

41/9; pg. 50/16-25).

Within a month after Plaintiff left the employ of the

Defendant in August of 1992, Plaintiff was hired by Tamiami

Chrysler Dodge (hereinafter “Tamiami") in its parts department.

(TR. Vol. 4, pg. 30). Plaintiff was informed by his supervisor at

15

Tamiami, Mr. Mario Fernandez, of his recent heart surgery. (TR.

Vol. 4, pg. 33/11-16). Plaintiff that his job did not require him to

lift anything heavy, and that other employees would perform such

tasks (TR. Vol. 4, pg. 34/17 - pg. 35/13, pg. 35). Plaintiff also

admitted that he could take rest breaks whenever he needed. Id.

Mr. Pidal, however, voluntarily quit that job approximately six

weeks after being hired. (TR. Vol. 4, pg. 30). Mr. Pidal admitted

at trial, however, that he knew he would have been eligible for

health insurance benefits from Tamiami 90 days after his

employment began. (TR. Vol. 4, pg. 31).

At the close of trial, the jury returned a verdict in favor of

the Defendant as to the Plaintinf's claim of age discrimination under

the Age Discrimination in Employment Act ("ADEA"). The

Defendant respectfully contends, however, that because of the

Plaintiff's referral to having a "heart attack" while on the job, (TR.

Vol. 2, pg. 15/19; pg. 91/18-21); the mischaracterization of the

purported statements of Mr. Wurl prior to the Plaintiff's re-

employment (TR. Vol. 6, pg. 53 - pg.57); and, Plaintiff’s claim that

16

he was not being able to afford his COBRA payments to continue

his health insurance and therefore allegedly incurred substantial

medical expenses - even though he testified that he paid his COBRA

premiums through June 1992, and had been medically cleared to

return to work no later than May 30, 1992 (TR. Vol. 6, pg. 60/6-

14; TR. Vol. 2, pg. 96/1-25) - the jury was unduly prejudiced to

find for the Plaintiff with respect to his disability claim under the

Americans with Disabilities Act of 1990. 42 U.S.C. § 12102 et

seq. Thereafter, the Defendant timely filed this appeal.

17

ARGUMENT

Under St. Mary Honor Center v. Hicks, U.S. at_,

113 S. Ct. at 2747, Federal Courts have held that “The ultimate

burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the

plaintiff.” DeLuca v. Winer Industries, Inc., 53 F.3d 793, 798 (7th

Cir., 1995) (applies St. Mary Honor Center) to the ADA): see,

also Patterson v. Downtown Med. i stic , 866 F.

Supp. 1379 (M.D. Fla. 1994); Hindman v. GTE Data Services, 3

AD Cases 641 (M.D. Fla. 1994) (plaintiff must show he is suffering

discrimination because of the disability); and, Smith v. Upson

County, Ga., 859 F. Supp. 1504 (M.D. Ga. 1994) (plaintiff must

show a causal connection exists between the adverse employment

action and the disability). The facts presented at trial, however,

clearly reveal that no such motivation was proven and there is no

evidence of a causal re!ationship between Plaintiff's discharge on

August 5, 1992 and a perceived disability and/or record of disability

on the part of the defendant. Plaintiff failed to establish that

18

a Ts

Defendant was motivated by a discriminatory intent when Plaintiff

was discharged. Furthermore, Plaintiff failed to prove that the

legitimate, non-discriminatory reason articulated by the defendant

was amere pretext for discrimination. West v. Russell Corp., 868

F. Supp. 313 (M.D. Ala., 1994) citing Texas Dept. of Community

Affairs v. Burdines, 450 U.S. 248 (1981). See, also, St. Mary’s

Honor Center v. Hicks, U.S. __, _. 113 S. Ct. 2742, 125 L.

Ed. 2d 407 (1993).

The Defendant’s General Manager, Mr. Wurl, and its

General Sales Manager, Mr. Leonard Victor, decided to discharge

the Plaintiff on August 5, 1992, after being informed by three (3)

other employees that they witnessed the Plaintiff during the previous

evening drinking an alcoholic beverage, while sitting in a company

vehicle in public and on duty, and away from the Defendant’s

premises (TR. Vol 2, pg. 52/1 - 53/1).

Whether the reports were correct or not is irrelevant because

the reports alone were legitimate, non-discriminatory reasons to

discharge Plaintiff. The Plaintiff cannot create a genuine issue of

19

fact by disputing the reports that he was in fact drinking on the job.

Brown v. Brown & Williamson Tobacco, 70 FEP Cases 1211 (N.D.

Fla., 1996). The evidence in this case indicates that the

Defendant’s actions were based upon the a legitimate, non-

discriminatory reason and there is no evidence that would have

allowed a reasonable jury to find otherwise.

The only evidence presented by the Plaintiff concerning the

Defendant’s alleged wrongful motivation was the testimony of Mr.

Jorge Mas, a former Manager for the Defendant who supervised the

Plaintiff's work performance (TR. Vol. 2, pg. 33/22; pg. 34/20;

pg. 37/20-38/6). Mr. Mas, however, did not make or participate

in the decision to discharge the Plaintiff in August 1992 (TR. Vol

2, pg. 51/21 - pg. 52/1-20). Accordingly, the motivation of Messrs.

Wurl and Victor concerning the Plaintiff's discharge is

determinative.

The Plaintiff attempted to show that other employees of the

Defendant drank alcoholic beverages while at lunch, but was unable

to show that Mr. Wurl was aware of such, or that any such

20

individual was employed in a porter position as Pidal and was

witnessed drinking an alcoholic beverage in a company vehicle on

a public premises.

Mr. Mas’ testimony is-based upon Conversations participated

in by Mr. Wurl during weekly manager meetings between February

1992 and the time when Mr. Pidal returned to work. At that time,

Williamson was under no obligation to rehire Plaintiff. Plaintiff

fails to show how the conversations held prior to his rehiring by the

Defendant showed a discriminatory motive or scheme to rehire

Plaintiff and Subsequently discharge him. Regardless, the

Defendants would have had no reason to enter into a discrimination

Scheme since there was (1) no actual obligation to rehire the

Plaintiff, and (2) there was no ADA in effect at the time the

Statements were made and, therefore, no necessity to enter into a

scheme to protect the company therefrom. Mr. Mas testified that

during those meetings, Mr. Pidal was a subject of conversation on

a couple of occasions, such as "...how he was doing. On a couple

of occasions, what were we going to do as far as bringing him

21

oo ee |

back. There were at the time 2 porters existing" (TR. Vol. 2, pg.

42/7-10). Asked what else was discussed, Mas testified: “That's all

-- you know" (TR. Vol. 2, pg. 42/19-20). There was no evidence

offered to identify the individual(s) who made such comments.

Mr. Mas was also asked if the subject of terminating the

Plaintiff from employment was ever discussed. Mas replied: “Not

actually terminating him, but well, what were we going to do with

a third porter, and was there a need for a third porter" (TR. Vol.

2, pg. 43/6-11).

The Plaintiff's case is obviously premised upon rank

speculation and unreasonable inference drawn from such

conversations. When Plaintiff's counsel asked Mas what Mr. Wurl

actually said during such meetings concerning Mr. Pidal, the

following testimony was adduced:

"To the best of my memory, what I

remember him [Mr. Wurl] saying,

‘before we even consider letting him

return, let’s make sure that he can get

a doctor’s letter that he is going to be

able to work out there. See if he can

come up with that" (TR. Vol. 2, pg.

22

77/13-21; see, also, Vol. 2, pg.

78/21- pg.79/3).

All of Jorge Mas’ testimony regarding conversations at

manager meetings took place prior to the decision to rehire Jesus

Pidal on August 3, 1992. There is no factual evidence that anyone

at Williamson believed they had to rehire Mr. Pidal and there is no

legal authority requiring Williamson to reemploy Jesus Pidal on

August 3, 1992. Once Plaintiff legally separated from Williamson,

they were under no legal obligation to rehire Plaintiff. Loper v.

American Airlines, Inc., 582 F.2d 956 (Sth Cir., 1978). Mas’

"manager meeting discussions" were all in the context of how Mr.

Pidal’s health was doing and whether or not Williamson was going

to rehire Mr. Pidal. Regardless of the considerations examined by

Williamson during the manager meetings, the decision was made to

rehire Jesus Pidal and he began working at the exact same job at

Williamson on August 3, 1992. The subsequent act of rehiring

Plaintiff negated any inference that the prior conversations

evidenced a discriminatory intent.

23

Jorge Mas’ testimony indicates that there were two

considerations reviewed regarding whether to rehire Jesus Pidal:

(1) | Was there a need for a third porter because Williamson

employs only two porters and both positions were filled, (two

porters/three porters issue); and (2) was Jesus Pidal well enough to

physically return to his porter position (Pidal’s health to return to

work issue). Once again, the evidence shows that the Defendant

was assessing his employment needs. This type of information has

been found to be “classic ‘state of mind’ evidence that tended to

negate any inference of retaliatory intent.” Anderson v. Sheppard,

770 F.2d 165 (6th Cir., 1985).

Attorney Manzini, through his questioning, placed emphasis

on Williamson’s request to Pidal, prior to reemploying Pidal, that

Pidal provide Williamson with a doctor’s letter identifying that Pidal

is physically able to return to his former porter job without

restriction. This request does not provide evidence of

24

discriminatory motive.* Mas’ testimony, again which concerned

only pre-reemployment manager meeting discussion, falls short of

satisfying Plaintiff's ADA burden of proof. Attorney Manzini asked

Mas "Did-somebody come up with an idea as to how to get around

the Pidal problem?" (Attorney Manzini never asked who said

what.) Mas answered:

A: No, I can’t say somebody had .

an idea, but Mr. Wurl wanted to

make sure he could continue to work

and he asked for a doctor’s okay.

(TR. Vol 2; pg. 47)

On redirect, attorney Manzini again inquired about

Williamson’s request for a doctor’s letter and Mas, attempting to

quote Mr. Wurl, stated:

"...Hey, let’s get a letter from his

doctor making sure he can come back

to work, and if he can get that, okay,

and if not, that would be the end of it

right there." (Emphasis provided.)

(TR. Vol 2; pg. 82)

* Mr. Pidal admitted that the request for a doctor’s release to

return to work was reasonable under the circumstances. (TR. Vol.

2; pg. 1).

25

Pidal got the doctor’s letter and therefore according to Mas

it was "okay", and Pidal was reemployed beginning August 3, 1992

(TR. Vol. 2, pg. 82). Significantly, Williamson followed the same

procedure regarding George Labrada who had also suffered a severe

health problem in February 1992 and sought reemployment in July

1992. George Labrada, who was also in his late fifties, and who

had higher health care claims, obtained a doctor’s release and

remains employed by Williamson today.

Therefore, upon obtaining the doctor’s statement allowing

him to return to work, Plaintiff was rehired by Defendant while he

was under no legal obligation to do so. Soon, thereafter, the

Defendant received three reports by the Plaintiff’s fellow employees

that the Plaintiff was drinking in a company vehicle while on duty.

Based upon these reports, the Defendant discharged the Plaintiff for

a legitimate, nan-diacstiebiealcary: baidiane reason.

Assuming, arguendo, that the above statements showed a

discriminatory motivation, the subsequent rehiring would negate any

26

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inference of discrimination. Since it is undisputed’ that the

Defendant’s were under no obligation to rehire Plaintiff and the

statements by Defendant were made prior to the Plaintiff’s rehiring,

any discriminatory motivation would have easily been implemented

by not rehiring Plaintiff. Mr. Mas admitted that at the time the

Defendant re-hired the Plaintiff in August, there were no

discussions concerning finding a reason to let Pidal go or to make

him quit (TR. Vol. 2, pg. 69/21-70/17). In fact, the Plaintiff never

told Mas, or anyone else, that he possessed any disability, and it is

undisputed that Pidal never requested any accommodation or

assistance with the performance of his duties upon his re-hire (TR.

Vol. 2, pg. 68/6-11; Vol. 3, pg. 38/16-pg. 39/2). However, once

he was rehired, that fact alone negates the inference of

° Mas admitted the Defendant had no obligation to re-hire Mr.

Pidal at the time he inquired about returning to work. Mas also

acknowledged that Greg Wurl never indicated that he believed he

was obligated to re-hire the Plaintiff, but that Wurl had a "big

heart" and wanted to help Mr. Pidal by providing him with

employment at the time he sought to return (TR. Vol. 2, pg. 61/10

-17).

27

discrimination by placing Plaintiff in a better position after the

conversations the Plaintiff offers as evidence to show discriminatory

intent. Similarly, in an EEOC decision, the committee reasoned

that an employee who received a pay raise subsequent to a claim

filed with the EEOC would negate an inference that the employer

discriminated against the employee based upon the EEOC claim

prior to the pay raise. (EEOC Decision No. 75-058) Furthermore,

Defendant extending the Plaintiff's medical coverage further

evidences that Defendant had no discriminatory motivation. The

Plaintiff contends that the conversations several months before his

rehiring establish the requisite causal connection. However, it is

well settled that a causal connection is “demonstrated by the

proximity of the adverse action to the protected activity.” The

Plaintiff’s surgery in March 1992 is not within the proximity of the

August 1992 discharge, especially since the Defendant was under no

legal duty to rehire Plaintiff.

In a similar case, Szymanska v. Abbott Laboratories, 3 AD

Cases 748 (N.D. Ill. 1994), two employees brought suit against

28

—-

ee

their former employer alleging, inter alia, claims of disability

discrimination under the ADA. One of the employees (Ms.

Pietraszewski) had a history of hospitalization and surgery for the

treatment of kidney cancer and was subsequently discharged by two

company officials who had knowledge of her health condition. The

employee asserted her employment was terminated because she was

"perceived" to be handicapped. Summary judgement was granted

on behalf of the Defendants, however, because the employee had

returned to work, without restriction or incident, subsequent to her

hospitalization. The court stated, "Her past condition and past

hospitalization does not, without more, indicate any impairment or

history of impairment that substantially limits any of her major life

activities. Significantly, there is no evidence that her activities were

impacted by her cancer prior to her surgery and no evidence that

She requested any accommodation after her surgery and sick leave."

Id. at 761. Like Ms. Pietraszewski, Mr. Pidal presented no

evidence that his health had any impact on his life activities prior to

his leave in February 1992, and there is no evidence that Mr.

29

Pidal’s health affected any major life activity after his return from

surgery (Pidal received a clean bill of health as of May 30, 1992).

Pidal also admits he never sought, nor needed, any accommodation

after his recovery.

As in Pidal, the Defendant in Szymanska was also charged

with having made comments regarding the plaintiff's health

problems and their impact on her work. Specifically, the plaintiff

alleged that a supervisor who visited her in the hospital after her

kidney surgery asserted that the problems the Defendant had with

her work performance “are related to her health problems." Id. at

753. The court, however, held that such stray remarks were

insufficient to indicate the defendant perceived her as handicapped.

Id., 3 AD cases at 760-761.

Similarly, the facts of this case reveal the Plaintiff failed to

establish any causal relationship between his alleged disability and

his ultimate discharge, subsequent to his August 1992 re-hire.

Further, the comments actually attributed to Mr. Wurl, and any

reasonable inference to be drawn therefrom, are insufficient to

30

prove the Defendant was illegally motivated when discharging Mr.

Pidal on August 5. 1992.

The preceding is the extent of factual evidence presented by

the Plaintiff concerning the Defendant’s motivation for discharging

Mr. Pidal on August 5, 1992, allegedly because of his disability,

record, or perception thereof. There is simply no competent

evidence, however, which indicates the Defendant’s motivation for

terminating Mr. Pidal’s second period of employment was based

upon, even in part, a disability, perception/record of such, or any

alleged fear of an adverse effect upon the Defendant’s health

insurance plan.

Therefore, Plaintiff cannot meet its burden of snowing that

Williamson pretextualy terminated Pidal for drinking on the job and

actually terminated Pidal for a discriminatory reason.

31

CONCLUSION

For the foregoing reasons, Peetitioner, W.W.W. Enterprises,

Inc., respectfully requests that this Court grant its Petition for a

Writ of Certiorari.

Respectfully submitted,

MURRAY HUDSON, ESQUIRE

COUNSEL OF RECORD

HOGG ALLEN NORTON

& BLUE,P.A.

i121 MAJORCA AVE

CORAL GABLES FL 33134

ADAMS & QUINTON, P.A.

80 S.W. 8 STREET, SUITE 2150

MIAMI, FLORIDA 33130

COUNSEL FOR PETITIONER

32