vs. ) CASE NO. 91-8286
STOUFFER RESTAURANT COMPANY ) dba J.B. WINBERIE RESTAURANT ) & BAR, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above styled case on March 4, 1992, in Tampa, Florida.
Nestle USA, Inc. 30003 Bainbridge Road
Whether Respondent has unlawfully discriminated against Petitioner on the basis of handicap, in violation of Section 760.10, Florida Statutes.
By letter dated October 17, 1991, Petitioner Erich Heylmann (Heylmann), contests the preliminary determination and redetermination made by the Florida Commission on Human Relations (FCHR) which state there is no reasonable cause to believe an unlawful employment practice occurred within the meaning of Section 760.10, Florida Statutes (1989), when Petitioner's employment was terminated by Respondent, Stouffer Restaurant Company d/b/a J.B. Winberie Restaurant and Bar (Stouffer). The case was referred to the Division of Administrative Hearings on December 26, 1992. The case was assigned to a Hearing Officer on January 13, 1992, and was promptly scheduled for hearing.
During the hearing, Petitioner filed three exhibits and testified in his own behalf. Respondent submitted eight exhibits and presented the testimony of two witnesses. All of the exhibits were admitted into evidence.
A transcript of the hearing was not ordered. Petitioner waived his opportunity to submit proposed findings of fact to the Hearing Officer. Rulings on the proposed findings of fact submitted by Respondent are in the Appendix to the Recommended Order.
Petitioner Heylmann began work as a server at J.B. Winberie Restaurant & Bar in Tampa, Florida, on June 2, 1987. The restaurant is a member of a restaurant chain belonging to Stouffer Restaurant Company.
Petitioner was highly skilled and extremely competent at his chosen occupation. This was acknowledged throughout these proceedings.
Petitioner was first diagnosed as having acquired human immune deficiency virus in November of 1989. He did not tell anyone at the restaurant of his condition for fear of losing his job and the medical benefits provided by Respondent Stouffer.
To protect his right to confidentiality about his medical condition, Petitioner took two precautions: First, he advised United Medical Resources, Inc., the third party administrator of Respondent's health insurance benefits program, that he wanted information regarding his medical claims to be kept confidential. Second, he chose to pick-up partially completed claim forms from the local restaurant's officer manager verifying his employment (Part B) prior to his completion of the medical information (Part A). Petitioner would then submit each claim directly to United Medical Resources, Inc. This process prevented someone in the restaurant from accidentally discovering through his claim forms that he had human immune deficiency virus.
As the administrator of the Stouffer Health Benefits Trust for Respondent Stouffer, United Medical Resources, Inc. was authorized to review an employee's medical records only for the purpose of evaluating and administrating claims for benefits. Otherwise, the information was considered confidential and was not shared with Respondent Stouffer.
An interoffice memorandum relating to Claim No. 005900855 filed by Petitioner, indicates United Medical Resources, Inc., was aware that medical bills relating to Petitioner's treatment were confidential and were not to be transmitted to the employer.
The process of completing (Part A) of a claim form, after receiving (Part B) from the employee representative assigned to complete such a form, was not a change in practice for Petitioner. This is the format he used to complete such forms throughout his employment with Respondent.
Claim Form No. 005900855 for Petitioner's treatment on December 14, 1989, was improperly filled out by the restaurant. Part B did not contain a date to verify employment during the period benefits were requested. This omission was not discovered until the processing of the claim on January 18, 1990. On February 1, 1990, the claims examiner was advised by her supervisor to return the form to the office manager at the restaurant to properly complete Part B.
Because Part A and Part B of the claim form are on a single sheet of paper, the portion of the form completed by Petitioner was also transmitted back to the office manager.
Petitioner had not placed the nature of his illness on this form. As a result, there was nothing on this form which could inform the employer of his medical condition or the diagnosis.
J.B. Winberie Restaurant and Bar serves a buffet on Sundays. The Easter buffet on April 15, 1990, was expected to draw a large crowd because that particular day is one of the busiest days of the year for restaurants.
Petitioner was scheduled to work an eight hour shift on this particular Sunday. As anticipated, the restaurant was very busy and contained a number of large parties.
At this restaurant, a large party is defined as six or more people who are dining together. Under such circumstances, the restaurant has a tip policy that allows the server to add a 15% gratuity to the check prior to presentation. This amount must be clearly identified on the check as a 15% gratuity, then totalled to arrive at the sum owed. The server presenting the bill has to inform the guest of the policy and the inclusion of the tip on the check.
Petitioner was assigned a party of ten during the busiest seating on Easter Sunday. The table included six adults and four children.
This particular party was an indecisive one with lots of needs and activity. It would have been difficult for most experienced servers to deal with this multi-generational table during a day as busy as the one the restaurant was having. The group constantly required drinks and plate removals. The grandmother could not decide whether she was going to eat brunch and the children were messy.
In spite of the demands upon him, Petitioner believed he served well and that his attention and skills were appreciated.
Some of the adult males at the table entered into a good natured rivalry regarding who would pick up the check for brunch. One of the men left the table and approached Petitioner back by the kitchen. He asked if the check could be prepared and presented to him immediately so that he could pay it and thereby eliminate the payment controversy.
Petitioner recalls explaining the gratuity policy, but his check presentation was disorderly due to the hurried nature of the situation and his need to explain an overring and some changes made to the charges. Although a
$12.50 gratuity was added per the restaurant policy, it was not clearly denoted as a tip on the check. In fact, the check specifically reads "Gratuity not included."
The charge slip, which was completed in addition to the check, reflected the 15% tip in the total. A separate space on the charge slip for a gratuity remained blank.
When the guest completed the slip, he told Petitioner he was adding something extra because of his good service. The charge slip included another
$15.00 tip.
Petitioner assumed the additional tip was added as a tribute to his efforts. It is not unusual for people with messy children to leave additional or larger tips because of the efforts a server has to make to clean the area during and after the meal.
Actually, this guest did not realize a tip had already been in the total charges presented to him. The guest believed he was providing Petitioner's first tip when he filled out the charge slip. After he had left the restaurant, this guest became aware that he had given Petitioner a total of
$27.50 in gratuities for a bill of $82.13. The man called the restaurant the next day and accused Petitioner of a dishonest act.
When the bill was reviewed by management, it was noticed that Petitioner did not clearly write on the check that he had included a $12.50 gratuity. This omission tended to corroborate the guest's accusation that a dishonest act occurred. One of the reasons the special policy regarding gratuities for large parties requires servers to write down the gratuity and explain the policy is to prevent a server from overloading the tip.
That Monday was Petitioner's day off. When he was called and questioned about the incident, he explained a mistake had occurred. Petitioner offered to give the man back the $12.50 reflected in the check prior to the addition of the second tip of $15.00.
In an attempt to reconcile the guest's accusation and Petitioner's explanation, the manager compared this check with two large party Sunday brunch checks prepared by Petitioner the week before. The comparison of the earlier checks with the present check revealed that Petitioner had changed the way he completed the form. The complaining guest's check did not comply with the restaurant policy regarding gratuities from large parties. The earlier checks did satisfy policy requirements. The lack of proper notations on the present check made it reasonably appear to management that Petitioner had deliberately changed his check preparation and was seeking a double tip from the complaining guest.
Assuming Petitioner tried to take advantage of this guest who used a charge card, he was terminated immediately for dishonesty towards a guest on April 17, 1990.
The employee handbook in effect at the time permitted termination without warning for theft or dishonesty toward guests.
Petitioner, who knew himself to be scrupulously honest, was shocked by the termination decision. To reconcile the decision with his self knowledge, he began to assume there was another reason or motive behind the adverse personnel action.
After termination, Petitioner learned his bill for medical treatment on December 14, 1989, was still outstanding. On that particular date, he had received treatment for human immune deficiency virus.
When United Medical Resources, Inc. was called by Petitioner, it was explained that the claim form had been mailed back to the restaurant office, where he worked.
Once Petitioner had this information, he assumed the portion of the form completed by him revealed he had a condition related to AIDS. He then theorized that this information was what caused his termination. Knowing himself to be honest, and assuming that he had earned the right to be believed over a guest when a misunderstanding occurred about a tip, Petitioner began to believe that the given reason for termination was pretextual.
Respondent was incorrect in its termination decision as Petitioner did not intentionally deceive the guest into giving him a second tip. The decision to terminate, however, was reasonable under the circumstances, as perceived by the restaurant manager.
Petitioner was mistaken in his theory that the restaurant and Stouffer personnel knew he had contracted an AIDS related disease and was being medically treated for the condition. No one knew of his diagnosis until after his termination.
Claim No. 005900855 was ultimately paid by United Medical Resources, Inc. on June 28, 1990.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes and Rule 9D-8.16(2), Florida Administrative Code. See also, School Board of Leon County v. Hargis and Fla. Commission on Human Relations, 400 So.2d 103 (Fla. 1st DCA 1981).
Section 760.50(2), Florida Statutes (1989), provides: Any person with or perceived as having acquired immune deficiency syndrome, acquired immune deficiency related complex, or human immune deficiency virus shall have
every protection made available to handicapped persons.
Section 760.10(1)(a), Florida Statutes (1989), states: It is an unlawful employment practice to discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's . . . handicap.
When an unlawful employment practice as defined by Section 760.10(1)(a), Florida Statutes, is alleged by an individual who believes discrimination has occurred because of his or her handicap, the burden of proving the allegations is upon that individual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981). A prima facie case must be established by the preponderance of the evidence. McDonnell Douglas v. Green,
411 U.S. 792, 804 (1973); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990).
In this case, Petitioner failed to establish a prima facie case that discrimination occurred because of his handicap as there was no evidence that the people involved in the alleged termination decision knew at the time the decision was made that he had an AIDS related condition. See by analogy, Featherson v. Montgomery County Public School, et al., 739 F.Supp. 1021 (D.M.D
1990). Croushorn v. Board of Trustees of University of Tennessee, 518 F.Supp. 9, 19 (M.D. Tenn. 1980).
Competent, substantial evidence placed on the record at hearing demonstrates that Respondent presented a legitimate nondiscriminatory reason for terminating Petitioner's employment: dishonesty in his dealing with a customer. Arnold v. Burger Queen Systems, Inc., 509 So.2d 958 (Fla. 2d DCA 1987).
Although the employer's decision regarding Petitioner's honesty was a mistake in judgment, it does not lose its status as a legitimate, nondiscriminatory reason for termination. This reason was not a pretext to disguise the Respondent's true, discriminatory motive because the employer was unaware of Petitioner's medical condition.
If mere knowledge or perception that a person has AIDS can give rise to unlawful discrimination as recognized in Section 760.50, Florida Statutes, it follows that lack of knowledge or perception cannot be discriminatory. See Eckels v. Harris Corporation, DOAH (R.O. filed 3-16-92).
Based upon the foregoing, it is recommended that the Florida Commission on Human Relations enter its Final Order dismissing the Petition for Relief.
RECOMMENDED this 2nd day of April, 1992, in Tallahassee, Leon County, Florida.
VERONICA E. DONNELLY
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1992.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-8286
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.
