STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGINIA C. CONFER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3522

)

GOLDEN CRUST BAKERY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by this duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 5, 1985, at Clearwater, Florida.

APPEARANCES

For Petitioner: Virginia A. Confer, Pro Se

10675 Seminole Boulevard, Lot 9

Largo, Florida 33540

For Respondent: Kenneth Judd, Pro Se

Golden Crust Bakery Inc. 10994 70th Avenue North Largo, Florida 33542

By Petition for Relief received at the Florida Commission on Human Relations on August 31, 1984, Virginia A. Confer, Petitioner, contests Notice of Determination: No Cause dated August 23, 1984 regarding her charge of discrimination in employment by reason of physical disability (hearing difficulty). At the hearing Petitioner testified in her own behalf and Kenneth Judd testified on behalf of Respondent. No exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner worked for Golden Crust Bakery, Inc. at Grants Bakery, one of seven retail stores owned by Respondent, for approximately one week and was terminated by direction of Kenneth Judd, manager of Golden Crust Bakery, Inc. Ms. Confer had been hired by the manager of Grants, Ms. Collachio, as a sales clerk. Each day the sales clerks run a tally on their sales and it should match with the cash register receipts. When Petitioner's accounts failed to balance every day of the one week she worked at Grants, Judd told Mrs. Collachio to let her go.

   
   

2. On one occasion Petitioner was told by Ms. Collachio that she couldn't hear the customers when her back was turned to the customers. At the time Judd directed that Ms. Confer be fired he had no knowledge that she had a hearing problem.

3. At the hearing Ms. Confer presented no evidence that she had a hearing disability. Her only testimony was that she was told by Ms. Collachio that when she turned her back to the customers she couldn't hear the customers and Ms. Collachio would have to let her go.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 760.10, Fla. Stat., provides, inter alia, that it is an unlawful practice for an employer to discharge any individual because of such individual1s handicap.

   
   

6. 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 the Petition'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, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981).

   
   

7. To establish a prima facie case, Petitioner must pre- sent facts which "raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the plaintiffs rejection. See Teamsters v. United States, 431 U.S. 324, 358 at n. 44, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977).

   
   

8. In order to present a prima facie case of discrimination the Petitioner must show: (1) that she is handicapped; (2) that she performed her assigned duties satisfactorily; and (3) that despite her performance she was terminated. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 37 L. Ed. 2d 668 (1973). Petitioner failed to show any of these elements and thus failed to establish a prima facie case. It is

RECOMMENDED that the charge of discrimination filed by Virginia Confer against Golden Crust Bakery, Inc. be dismissed.

ENTERED this 22nd day of April, 1985, 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 22nd day of April, 1985.

COPIES FURNISHED:

Ms. Virginia Confer

10675 Seminole Boulevard, Lot 9

Largo, Florida 33540

Golden Crust Bakery, Inc. c/o Kenneth Judd, Manager 10994 70th Avenue North Largo, Florida 33542

John A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Suite 240/Building F

Tallahassee, Florida 32303

Aurelio Durana, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003522

Orders for Case No: 84-003522