STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKIE KILPATRICK, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2402

) FCHR NO. 82-2282

HOWARD JOHNSON COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and a formal Section 120.57, Florida Statutes hearing was conducted in this cause. The date of hearing was September 11, 1984.

Consideration has also been given to the proposed Recommended Orders and associated argument as filed by counsel for the parties. The last of those submissions was filed with the Division of Administrative Hearings on October 29, 1984. To the extent that the proposals are consistent with the Recommended Order they have been utilized. Otherwise, they are rejected as being contrary to facts found, irrelevant, immaterial, unnecessary, subordinate or cumulative.

APPEARANCES

For Petitioner: John K. Folsom, Esquire

VICKERS & MULDOON

122 South Calhoun Street Tallahassee, Florida 32301

For Respondent: Kevin B. Callanan, Esquire

Howard Johnson Company One Monarch Drive

North Quincy, Massachusetts 22698-9102 ISSUES

The issues concern the Petitioner's claim of racial and age discrimination, pertaining to employment practices of the Respondent. This case is brought under the authority of Chapter 760, Florida Statutes and its attendant rules.

FINDINGS OF FACT

1. Petitioner, Jackie Kilpatrick, worked for Respondent, Howard Johnson Company, for approximately eighteen years in the capacity of waitress. Petitioner is a black woman whose birth date was February 10, 1946. Kilpatrick in the relevant time period worked the initial shift of a three shift work cycle in the restaurant which is located on West Tennessee Street, Tallahassee, Florida. That shift was the 6 A.M. to 3 P.M. morning cycle. Petitioner was one of several waitresses working that shift all of whom had long-standing service with Howard Johnson Company. Petitioner was the only black waitress; however, the cook on that shift was also black. As an employee of Howard Johnson,

   Petitioner enjoyed a good reputation among her fellow workers and customers of the restaurant with the exception of one customer, in incident which will be subsequently discussed.

   
   

2. In early 1982, a meeting was held in the Howard Johnson restaurant in which the Petitioner indicated that she felt the restaurant manager, a Ms. Williams, gave preferential treatment to a white employee. The District Manager for Howard Johnson, Ramon Jimenez, was involved in the meeting and was left with an unfavorable impression of the Petitioner's conduct related to the remarks made to Ms. Williams. Shortly thereafter, Ms. Williams was replaced as the store manager for the Howard Johnson, West Tennessee restaurant.

   
   

3. Her replacement, Lionel Robbins, felt that the management of the subject restaurant under the direction of Ms. Williams had not been acceptable and he set about his management task by informing the waitresses on the first shift that he was not there to be their friend. He stated that he was there to, in effect, clean up the operation. Making known his sentiments, he on a number, of occasions indicated to those waitresses, to include the Petitioner, in individual conversations with those employees, that "You can't teach an old dog new tricks". He had mentioned to Mary Mills, a waitress in the first shift, with total service of 25 years with Howard Johnson, that he was there to get rid of people on the first shift. Robbins constantly pressured the first shift waitresses on the question of their performance. He reduced their work hours and assigned more available work hours to new waitresses who he had hired. The new waitresses were hired after Petitioner was dismissed from her employment. Those new waitresses were somewhat younger than the waitresses on the first shift. The original waitresses on the first shift were from 35 to 55 years of age and the new waitresses who were hired were 18 to 23 years of age.

   
   

4. During Robbins' time as store manager, in addition to Petitioner, he fired Bernice Johnson, a white waitress, of 16 years service with Howard Johnson who had been employed on the first shift with Kilpatrick. Bernice Johnson's dismissal was within four weeks of Robbins assignment as restaurant manager.

   
   

5. Robbins' treatment of the Petitioner was provocative. This aura of provocation commenced from the first day that Robbins met the Petitioner. On that occasion, which took place in the restaurant on March 25, 1982, Robbins witnessed a disciplinary conference between Jimenez and Kilpatrick complaint had been made by a Mrs. DeCarlo, the owner of a privately run Howard Johnson motel operation adjacent to the restaurant, and this was the subject of the disciplinary conference. DeCarlo indicated that the Petitioner would not serve her when DeCarlo came to the restaurant. On the date of the conference Jimenez had prepared the employee reprimand which is Respondent's exhibit number one admitted into evidence, prior to the conference. He presented it to Kilpatrick and indicated to her that it was her responsibility to serve Mrs. DeCarlo or any patron, regardless of the desires of the employee waitress. Kilpatrick indicated that she surmised that DeCarlo really did not wish to be served by her. The conversation became somewhat heated and Robbins interceded and indicated that the Petitioner might wish to transfer to another Howard Johnson restaurant in Tallahassee, Florida. The suggestion was not well received by the Petitioner, in that she indicated an unwillingness to accept a transfer.

   Robbins indicated that if the Petitioner could not get along with Jimenez, who was Robbins superior, then she was going to have an attitude problem toward Robbins. He suggested the move to the Apalachee Parkway restaurant in Tallahassee, because he felt there was already a personality conflict developing. Petitioner stated that she felt that Robbins wanted to remove her because he was prejudiced. Eventually Robbins talked about the possible

   termination of the Petitioner's employment. The matter was finally resolved following a discussion with another official within Howard Johnson Company, a George Gover, by telephone call in which it was decided that the reprimand would stand, but the Petitioner would be allowed to continue her employment. From the point of this encounter on March 25, 1982, until the Petitioner's dismissal on April 27, 1982, the working relationship between Robbins and the Petitioner was strained.

   
   

6. Between the time of the March 25, 1982 incident, in which the Petitioner was reprimanded, and April 27, 1982, Petitioner and other waitress employees in the first shift were the subject of continuing criticisms by Robbins. Robbins had the impression that Kilpatrick was "too set in her ways" and would not cooperate with his management scheme. 0n the morning of April 7, 1982, Petitioner had to make a number of adjustments in the station where she serves patrons because of oversights of the prior shift of waitresses. She had concluded this activity when Robbins arrived around 8 AM. He observed the "set up" of the tables and found them to be lacking, in his estimation. One matter that struck his eye was the fact that the silverware on one of the napkins was "kind of astray". He spoke first with the waitress Donna Cooper who referred him to the Petitioner. Petitioner indicated that the problem was one related to the prior shift to which the manager, Robbins, retorted that the Petitioner was responsible. An argument ensued between the Petitioner and Robbins and they retired to Robbins office which was in the area of the kitchen. While in the kitchen Petitioner kept referring to the fact that the problems in the restaurant were not those caused by the shift on which she worked. Robbins was insisting that the problems were related to the overall operation. In the course of this conversation, a discussion was entered into related to a reprimand which the Petitioner had received, along with other waitresses, related to the sufficiency of the guest checks as to errors in computations. A copy of that reprimand may be found as Respondent's exhibit's number two admitted into evidence. Petitioner did not wish to sign the written reprimand although she acknowledged making mistakes. She remarked that no one was perfect and Robbins stated that she would have to come closer to his standards of performance. Robbins then asked the Petitioner to transfer from the restaurant and she declined. Robbins then indicated that he was doing to reprimand her for the events of that morning. Her response was that if he reprimanded her that he might as well take her off the schedule, meaning remove her from the shift. In return Robbins struck her name from the work schedule and began calculating her final pay and told the Petitioner that she was discharged. The basis of the discharge was related to the impression by Robbins that the Petitioner was insubordinate. Prior to the dismissal or discharge, in addition to the reprimand related to the dining room table setting, a reprimand for insubordination was presented to the Petitioner. She refused to sign this latter document. A copy of that reprimand may be found as Respondent's exhibit number three admitted into evidence.

   
   

7. At the time of her discharge the Petitioner was working 34-35 house a week at a rate of $2.01 per hour together with $35.32 tips per week. Since her discharge the Petitioner has attempted to find work by checking with the State Employment Agency; the local School Board; Rose Printing; with a gentlemen named Holiday, related to custodial work; with a person Joe Williams and another individual who works at Morrisons Cafeteria. These efforts were not successful. Petitioner has not pursued the idea of gaining work as a waitress in view of her desire to participate in church work on each Sunday. Petitioner does not wish to work in any Howard Johnson restaurant other than Tennessee Street, Tallahassee, and specifically would not wish to work in the Apalachee Parkway restaurant in Tallahassee, Florida. Furthermore, the Petitioner does not wish

   to work at the Tennessee Street restaurant if Lionel Robbins remains as manager. At the point of final hearing, Robbins was still serving as manager of the Tennessee Street restaurant. Petitioner has been unemployed since the time of her dismissal from her job at Howard Johnson restaurant.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57(1) Florida Statutes.

   
   

9. Section 760.10, Florida Statutes, makes it unlawful for an employer to discharge an employee or to otherwise discriminate against an employee related to matters of compensation, terms, conditions or privileges of employment based upon that individual's race or sex. Petitioner has accused the Respondent of such discrimination.

   
   

10. In order to successfully prosecute this case the Petitioner must establish a prima facie case of discrimination related to race or sex. If that burden is met the Respondent is then called upon to articulate a legitimate reason for the dismissal, which does not relate to the Petitioner's race or sex. If the Respondent offers this explanation, then it is incumbent upon the Petitioner to demonstrate that the explanation is a matter of pretext, designed to conceal race or sex discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 189,67 L.Ed. 2d 207 (1981).

    
    

11. In this instance Petitioner has failed to make a prima facie showing of racial discrimination. A prima facie showing of age discrimination; however, that showing was met with sufficient rebuttal evidence to demonstrate that the reason for dismissal was not based upon age. Although the Respondent's treatment of the Petitioner by its management employees is less than commendable, her dismissal was based upon problems which management perceived with her performance and their perception of insubordination on her part and not based upon her age. The reasons for dismissal were not a pretext designed to conceal age discrimination. In summary, the Petitioner has failed to successfully advance her claim of race and age discrimination related to her dismissal from employment with Howard Johnson Company. It is therefore,

RECOMMENDED

That a final order be entered by the Florida Human Relations Commission which dismisses the Petitioner's claim of employment discrimination premised upon race and age, as made by the Petitioner against Howard Johnson Company.

DONE and ENTERED this 3rd day of December, 1981, at Tallahassee, Florida.

CHARLES C. ADAMS

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 3rd day of December, 1984.

COPIES FURNISHED:

Kevin B. Callanan, Esquire Howard Johnson Company One Monarch Drive

North Quincy, MA. 02269-9102

ohn K. Folsom, Esquire

122 S. Calhoun Street Tallahassee, Florida 32301

Robert A. Anzalone, Esquire

220 Forbes Road, 1st Floor Braintree, MA. 02184

Aurelio Durana, Esquire General Counsel

Human Relations Commission

325 John Knox Road, Suite 2400, Bldg. F

Tallahassee, Florida 32303

Susan Oltman

Clerk of the Human Relations Commission

325 John Knox Road Bldg F, Suite 240

Tallahassee, Florida 32303

Donald A. Griffin, Executive Director,

Florida Commission on Human Relations

325 John Knox Road Bldg. F, Suite 240

Tallahassee, Florida 32303

Docket for Case No: 84-002402

Orders for Case No: 84-002402