STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN IWANISZEK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3806

)

SMITTY'S RESTAURANT OF )

SANIBEL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 27, 1990 and October 11, 1990, in Fort Myers, Florida, before Joyous

1. Parrish, a Hearing Officer with the Division of Administrative Hearings. The parties were represented at the hearing as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Stephen Iwaniszek, pro se

   922 Countington Lane, Apt. J Fort Myers, Florida 33919

   
   

   For Respondent: Douglas L. Waldorf, Jr.

   SMOOT ADAMS JOHNSON & GREEN, P.A.

   P.O. Box 06259

   Fort Myers, Florida 33906-6259 STATEMENT OF THE ISSUES

   The central issue in this case is whether the Respondent is guilty of an unlawful employment practice in violation of Section 760.10, Florida Statutes.

   
   

   PRELIMINARY STATEMENT

   
   

   This case began on January 4, 1989, when the Petitioner, Stephen Iwaniszek, filed a charge of discrimination against the Respondent, Smitty's Restaurant of Sanibel, Inc., and alleged that he had been terminated from his employment with the Respondent because of a handicap. The Respondent denied the allegations of fact and the matter was reviewed by the Florida Human Relations Commission and a determination of no cause was reached on May 10, 1990. Thereafter, Petitioner filed a petition for relief and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 20, 1990.

   
   

   At the hearing, the following witnesses testified in connection with this cause: Martin J. Howard, Jr., the manager of the Smitty's restaurant in question; Scott Schlick, the kitchen manager; the Petitioner; Barbara Netherlin, internal auditor for the Respondent; and Robert Michael Lukasik, general manager for the Respondent.

   Petitioner's composite exhibit 1 was admitted into evidence as were Respondent's exhibits numbered 1 through 3. A transcript of the hearing has not been filed. The Respondent filed a proposed order which has been considered in the preparation of this recommended order. Specific rulings on the proposed findings of fact are included in the attached appendix.

   
   

   FINDINGS OF FACT

   
   

   Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

   
   

   1. The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988.

      
      

   2. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence.

      
      

   3. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work.

      
      

   4. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations.

      
      

   5. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons.

      
      

   6. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   8. Section 760.10, Florida Statutes, provides, in part:

      
      

      1. It is an unlawful employment practice for an employer:

         1. To discharge or to 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.

   9. In employment cases where an individual alleges disparate treatment because of a handicap, such individual has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds in proving a case of discrimination, the burden then shifts to the employer to articulate some legitimate, non-discriminatory, basis for the treatment given the employee. In this case, the Petitioner has failed to establish either that he has a handicap as defined in Section 760.10, Florida Statutes or that he was terminated from his employment because of that handicap. Moreover, the Respondent has established that the Petitioner had a heated discussion with the kitchen manager and unilaterally walked off the job without sufficient provocation. Consequently, the Respondent's termination was not for discriminatory purposes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim.

DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990.

APPENDIX CASE NO. 90-3806

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None

submitted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1.

Paragraphs 1 through 14 are accepted.

COPIES FURNISHED:

Stephen J. Iwaniszek

922 Countington Lane, Apt. J Fort Myers, Florida 33919

Douglas L. Waldorf, Jr.

SMOOT ADAMS JOHNSON & GREEN, P.A.

P.O. Box 06259

Fort Myers, Florida 33906-6259

Acting Executive Director Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

Margaret Jones, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003806

Orders for Case No: 90-003806