STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARILYN KING CROSKEY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2527

)

MORRISON INCORPORATED, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on February 17, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: Joseph T. Barron, Esquire

Post Office Box 6801 Clearwater, Florida 33518

For Respondent: Robert F. Spencer, Jr., Esquire

Post Office Box 60118

New Orleans, Louisiana 70160

For City of Frank Kowalski, Esquire Clearwater: Post Office Box 4748

Clearwater, Florida 33518

By Charge of Discrimination filed with the City of Clearwater, Community Relations Department on August 25, 1981, Marilyn King (now Croskey), Petitioner, alleges that she was discriminated against by Morrison Incorporated, Respondent, because of her sex. Specifically, it is alleged that while employed at Morrison's Cafeteria in Clearwater, Florida, she left work on Saturday, August 15, 1981, because of menstrual cramps and heavy bleeding and was subsequently fired for "walking off the job" without authorization from her supervisor.

Following an investigation by the Community Relations Department, the matter was referred to the Division of Administrative Hearings and this hearing followed.

At the hearing Petitioner called three witnesses, including herself, Respondent called four witnesses, and five exhibits were admitted into evidence. Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Petitioner was employed by Morrison's Cafeteria, Clearwater, Florida, from July 29, 1981, until August 15, 1981, in the position of salad preparer.

2. Respondent normally has four employees trained as salad preparers and on August 15, 1981, one was on regular leave and the second was on emergency leave. On August 15, 1981, Petitioner served as late salad preparer, i.e., she was scheduled to work the late shift from noon until the cafeteria closed at 8:15 p.m.

   
   

3. Respondent's Clearwater cafeteria employs 53 people, with the manager and assistant manager the two top executives at the cafeteria. The manager works Monday through Friday, with Saturday and Sunday off, while the assistant manager works Wednesday through Sunday, with Monday and Tuesday off. On Saturday and Sunday the assistant manager serves as manager of the cafeteria.

   
   

4. On Saturday, August 15, 1981, Petitioner wakened with the onset of her menstrual cycle, experiencing cramps and heavy bleeding. She told her husband that she did not feel too well and he replied to the effect that since she had been working every day for the past two weeks she should call Morrison's and tell them she would "appreciate" the day off. She asked him to call Morrison's to tell them she was not coming in but he had to leave for work and did not have time. Around 9:00 a.m. Petitioner called Morrison's. Robert Brown, the manager, had stopped by Morrison's to cash a personal check and took Petitioner's call. She advised Brown that she had cramps and did not feel too well. Brown reminded her that the cafeteria was short two salad preparers, did not have a replacement for her, and suggested she could stop by a drugstore to get medication to alleviate the cramps. She then told Brown that she would come in. She clocked in at approximately 10:30 Saturday morning and left at 2:10 p.m.

   
   

5. In her testimony Petitioner stated she talked to the assistant manager, Mr. Dritsos, on the telephone and when she came in she told Mr. Brown she had cramps and was not feeling well, and that Mr. Brown told her to stop by the drugstore for medication. Petitioner also testified that her husband was present when she called Morrison's on Saturday, but the husband testified he left for work before Petitioner made the call. Both Brown and Dritsos denied Petitioner's version regarding to whom she spoke, and the fact that Saturday is Brown's day off lends credence to Respondent's version of the incident. Additionally, Petitioner's written statement, submitted shortly after the event, is inconsistent with some of her testimony; and, at the hearing, Petitioner's version of her husband's participation differed in several aspects from the testimony of her husband.

   
   

6. Petitioner's version of events subsequent to her clocking in is that after she commenced her duties she felt moisture on her leg and went to the restroom to clean up the blood and change pads. She testified she had to go to the restroom two or three times for this problem and that her uniform became bloodstained. She then called her aunt to pick her up and while walking back to the salad department told Dritsos that she had to go home because she could not make it anymore. Dritsos suggested she stay until Mr. Brown got back (Transcript p. 9).

   
   

7. Two other employees testified they heard Petitioner ask Mr. Dritsos if she could go home, but neither heard Dritsos's response. Neither of these witnesses nor any others saw any blood on Petitioner's uniform or body or were told by Petitioner that she had any problem other than she was not feeling well.

   
   

8. Dritsos denied that Petitioner asked for permission to go home or that he either granted or denied her request to do so. Since Brown had left the cafeteria before these events occurred and was not due back until Monday, it is

   most unlikely that Dritsos would have suggested Petitioner wait until Brown returned. The most likely scenario is that Petitioner decided to leave, called her aunt to pick her up, told Dritsos she was leaving, proceeded to the time clock, punched her time card, and departed.

   
   

9. Petitioner testified that she called Morrison's on Sunday and asked Dritsos what time she should come in. Dritsos denies receiving any communication from Petitioner or seeing her again before this hearing subsequent to her departure on Saturday, August 15, 1981. Petitioner's schedule was posted on the bulletin board at Morrison's, it did not change from day to day, and there was no reason for Petitioner to inquire what time she was scheduled to come to work. Accordingly, her testimony, that not only did she call Dritsos but also that he told her to call back the next day, is not credible.

   
   

10. Prior to his departure from Morrison's Sunday night, Dritsos left a note to Brown telling him that Petitioner had walked off the job on Saturday, did not report to work on Sunday, and should be terminated. Brown discussed the case by telephone with Dritsos on Monday after he had read Dritsos's note. Monday was a day off for Dritsos and he was not at Morrison's that day.

    
    

11. Brown testified that he received a phone call from Petitioner around 11:00 a.m. on Monday, August 17, inquiring when she should come to work. He told her she was terminated for walking off the job on Saturday and she could stop by to pick up her pay. Brown did not see Petitioner until she picked up her check the next Thursday. Petitioner testified she went in Monday and Brown told her she was terminated because she walked off the job. Petitioner's husband testified that he hired "Georgia Boy" to drive him to Morrison's Monday morning to find out why Petitioner was fired and that he walked up the door but turned around and returned to the car. He testified that Petitioner went into Morrison's on Monday. When asked why he thought on Monday morning that Petitioner had been fired, Mr. Croskey replied that because they would not let her come in Saturday (sic) and wouldn't let her come home Sunday (sic) "I just knew she was fired" (Transcript p. 40). Considering all this testimony, it is concluded that Petitioner did not go to Morrison's on Monday, but called Brown and was told she was fired; that her husband went to Morrison's on Monday to confront the manager with her firing but lost his nerve at the front door and did not enter the cafeteria.

    
    

12. Petitioner was a probationary employee, as are all of Morrison's employees for the first 90 days of their employment. Morrison's is a cafeteria whose profitability depends on the efficiency of its operation. It was described in terms of an assembly line where each employee must perform his specific role, otherwise the assembly line loses its efficiency. Each person is trained for his specific job and when one is absent the void has to be filled. If a replacement cannot be brought in, the manager will take the place of one of the servers and have the one he replaced fill in the missing slot. This often requires instructing the person in the new duties while attempting to keep the assembly line moving at the proper tempo. This is one of the reasons for Respondent's rule that an employee may not leave before checkout time without the express permission of the manager (Exhibit 3). Failure to comply with these rules is grounds for dismissal.

13. Morrison's Cafeteria at Clearwater has allowed both male and female employees to leave their jobs if sick. They do not grant permission to leave if the employee is suffering from a hangover caused by overindulgence on payday (or any other day). Mr. Brown has been employed by Morrison's some 25 years and he does not recall a female employee ever before asking to be relieved because of cramps. Petitioner acknowledged that she did not discuss her heavy bleeding with anyone at Morrison's on Saturday, August 15.

    
    

14. Since 1976 Morrison's Cafeteria at Clearwater has terminated 65 employees for walking off the job without permission (Exhibit 4). Of these, 41 were males and 24 were females.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 9B-18 of the City of Clearwater Ordinance 1843 provides in pertinent part:

    
    

    It shall be an unlawful discriminatory practice:

    1. For an employer, because of the race, creed, color, national origin, sex, age, handicap, or marital status, to refuse to hire or employ or to bar or to discharge from employment such individual in compensation or in terms, conditions, or privileges of employment.

       
       

17. In a discrimination case the petitioner has the initial burden of establishing a prima facie case of discrimination. If petitioner succeeds in proving the prima facie case, the burden shifts to the respondent to articulate some legitimate reason for petitioner's rejection. Should the respondent carry this burden, petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 1903 (1981).

    
    

18. Here Petitioner contends that she was fired because she was unable to work due to an illness unique to women. If so, she has established a prima facie case of discrimination so as to shift the burden to show the gender of Petitioner was not related to her firing. Once the Petitioner establishes a prima facie case, the burden shifts to the Respondent to articulate a legitimate reason for Petitioner's firing. This, Respondent has done. Since no credible evidence was presented that Petitioner's menstrual problems led to her firing, there was no prima facie case established for Respondent to rebut. No evidence was presented that Petitioner even asked to leave because she was not feeling well. Petitioner's own testimony is that she called her aunt to pick her up, then told the manager she was leaving. The fact that she came to work after Brown told her that her presence was needed indicates to some extent that she was not drastically ill. She made no specific complaints to fellow employees or gave Dritsos any reason to believe that she was too ill to continue her duties as salad preparer. When she failed to report for work on Sunday, Respondent was justified in concluding, in the absence of any reason for the absence, that Petitioner had abandoned her job. Although Respondent presented competent and substantial evidence that good cause existed for firing Petitioner, Respondent

    does not have this burden. It is sufficient that Respondent's evidence raises a genuine issue of fact as to whether it discriminated against Petitioner. To accomplish this, the Respondent must set forth, through the introduction of admissible evidence, the reasons for Petitioner's firing. Burdine, supra, at p. 1091. This, Respondent has clearly done. In a discrimination case the burden is on the Petitioner to prove by preponderance of the evidence that the decision to fire him was not motivated by discriminatory motives. This burden is not satisfied by proof creating an equipoise. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). Once Respondent rebutted Petitioner's prima facie case, no additional evidence was presented by Petitioner to show the legitimate reasons offered by Respondent were not its true reasons, but were a pretext for discrimination.

    
    

19. From the foregoing it is concluded that Petitioner was terminated from her employment at Morrison's Cafeteria in Clearwater for leaving her job on Saturday, August 15, 1981, without the permission of the manager and for failing to report for duty on Sunday, August 16, 1981, without good reason, and no evidence was submitted from which a determination can be made that Petitioner was unlawfully discriminated against because of her sex. It is therefore

RECOMMENDED that the claim of Marilyn King Croskey, that she was unlawfully discriminated against by Morrison Incorporated because of her sex, be dismissed.

ENTERED this 23rd day of March, 1983, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1983.

COPIES FURNISHED:

Joseph T. Barron, Esquire Post Office Box 6801 Clearwater, Florida 33518

Robert F. Spencer, Jr., Esquire Post Office Box 60118

New Orleans, Louisiana 70160

Frank Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 82-002527

Orders for Case No: 82-002527