STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAN COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5275

) CABALLERO'S MEXICAN, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 5, 1991, in Melbourne, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Jan Cooper, pro se

120 Sky Lane

Titusville, Florida 32796

For Respondent: Joy Delmar, Qualified Representative

Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901

STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioner was terminated from her employment with Caballero's Mexican Restaurant in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began on January 24, 1990, when the Petitioner, Jan Cooper, filed a charge of discrimination that alleged the Respondent, Caballero's Mexican Inc., had discriminated against her on the basis of her marital status. In essence, the charge alleged that Petitioner's husband had been fired from his employment with the Respondent and that she, too, because of her relationship with him, had been wrongfully terminated. The determination issued by the Florida Commission on Human Relations (Commission) on July 12, 1991, found that the Commission did not have jurisdiction in this matter. Thereafter, the Petitioner sought a reconsideration and, on August 22, 1991, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, the Petitioner and her husband, Kenneth Cooper, testified in her behalf. Petitioner's exhibits numbered 1 through 4 were admitted into

evidence. Joy Delmar, vice president of Caballero's, testified for the Respondent.

After the hearing, the Respondent filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. A transcript of the proceedings has not been filed.

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 Respondent owned and operated a restaurant in Melbourne, Florida known as Caballero's Mexican Restaurant (the restaurant).

   
   

2. The restaurant opened in September, 1989 and remained in operation until May, 1990, when it closed and went out of business. Subsequently, the corporation was dissolved.

   
   

3. When the restaurant opened, Kenneth Cooper was hired to perform the chef duties for the facility. Mr. Cooper had prior experience in such matters and was retained to be kitchen manager. Mr. Cooper was to hire and train all staff needed to efficiently operate the new restaurant kitchen.

   
   

4. One of the individuals Mr. Cooper brought into the kitchen was the Petitioner. The couple had a good working relationship and Petitioner proved to be an excellent worker. Petitioner was made cook and, at all times material to this case, Respondent was pleased with her performance.

   
   

5. In December, 1989, Richard Delmar, as president of the Respondent, advised Mr. Cooper that his employment at the restaurant was being terminated. The Petitioner was present when the incident occurred and demanded that Mr. Delmar give good reason for the termination. At that time Petitioner's employment was not terminated but she became upset that her husband's job had ended. Additionally, there was some dispute as to the ownership of personal property in the kitchen and whether Mr. Cooper and Petitioner would leave the restaurant premises. Ultimately, the police were summoned and the Coopers left. Petitioner did not return to work.

   
   

6. Caballero's was opened only nine months and did not employ fifteen employees. The restaurant was primarily a family-run venture with the Coopers running the kitchen and the Delmars hosting the seating area. Waitresses and a bartender were also employed by shift.

   
   

   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 compen-

         sation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

9. Section 760.02, Florida Statutes, provides, in pertinent part: Definitions.--For the purposes of ss. 760.01-

   760.10:

   * * *

   (6) "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current

   or preceding calendar year, and any agent of such a person.

   
   

10. In employment cases where an individual alleges disparate treatment because of marital status, 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, nondiscriminatory, basis for the treatment afforded the employee.

    
    

11. In this case, the Petitioner has failed to meet her burden of establishing that the employer is within the jurisdictional guidelines set forth in Chapter 760. The unrefuted evidence established that the restaurant did not employ fifteen employees. Further, the restaurant was not open a sufficient length of time to verify that such employees were employed for twenty weeks as the definition requires.

    
    

12. Assuming, arguendo, that the employer did somehow fail within the jurisdictional definition, the employee did not establish that she was terminated because of her marital status. Petitioner only established that she was married to an individual who was terminated by the Respondent. Petitioner could have remained with Caballero's had she not reacted to her husband's firing as she did. The confrontation that resulted from Mr. Cooper's termination caused the disintegration of Petitioner's working relationship with the Respondent. It was more who Petitioner was married to, rather than that she was married or single (i.e. her marital status) that caused her to leave employment with Respondent.

RECOMMENDATION

Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by Petitioner for lack of jurisdiction.

RECOMMENDED this 10th day of January, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5275

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

None submitted.

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

Respondent presented a series of proposed facts which were unnumbered. They are addressed below in the order of presentation (paragraphs 1 through 12).

1. Paragraph 1 is rejected as irrelevant.

2. Paragraph 2 is accepted.

3. Paragraphs 3 and 4 are accepted.

4. Paragraph 5 is rejected as irrelevant, hearsay, or not supported by the weight of the evidence.

5. Paragraph 6 is accepted.

6. Paragraph 7 is rejected as hearsay or not supported by the weight of the evidence presented in the case.

7. Paragraph 8 is accepted.

8. Paragraph 9 is accepted.

9. Paragraph 10 is rejected as irrelevant.

10. Paragraph 11 is rejected as irrelevant.

11. Paragraph 12 is rejected as a conclusion of law.

COPIES FURNISHED:

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones, Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Jan Cooper

120 Sky Lane

Titusville, Florida 32796

Joy Delmar

Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901

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: 91-005275

Orders for Case No: 91-005275