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CINDY KINSER vs F.J.W. ENTERPRISES, INC., D/B/A SONNY'S REAL PIT BAR-B-Q, 93-001951 (1993)

Court: Division of Administrative Hearings, Florida Number: 93-001951 Visitors: 10
Petitioner: CINDY KINSER
Respondent: F.J.W. ENTERPRISES, INC., D/B/A SONNY'S REAL PIT BAR-B-Q
Judges: MARY CLARK
Agency: Commissions
Locations: Tallahassee, Florida
Filed: Apr. 08, 1993
Status: Closed
Recommended Order on Thursday, March 24, 1994.

Latest Update: Mar. 24, 1994
Summary: The issues for disposition are whether Respondent violated section 760.10, F.S., as alleged, by terminating Petitioner from employment on the basis of her sex and her condition of pregnancy, and if that violation occurred, what relief is appropriate.Petitioner failed to prove discrimination based on sex/pregnancy as she presented no evidence of disparate treatment.
93-1951.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


CINDY KINSER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1951

)

  1. J. W. ENTERPRISES, INC., ) d/b/a SONNY'S REAL PIT BAR-B-Q, )

    )

    Respondent. )

    )


    RECOMMENDED ORDER


    Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 1, 1993, by telephone conference, with concurrence by the parties.


    APPEARANCES


    For Petitioner: Cindy Kinser

    (representing herself) 3023 Quebec Drive

    Baton Rouge, Louisiana 70819


    For Respondent: Jeff Yarmuth

    Vice President of Operations Sonny's Real Pit Bar-B-Q

    217 North Westmonte Drive, Suite 3019 Altamonte Springs, Florida 32714


    STATEMENT OF THE ISSUES


    The issues for disposition are whether Respondent violated section 760.10, F.S., as alleged, by terminating Petitioner from employment on the basis of her sex and her condition of pregnancy, and if that violation occurred, what relief is appropriate.


    PRELIMINARY STATEMENT


    Petitioner's initial charge of discrimination, dated September 24, 1992, alleges that Respondent discriminated against her because of her sex, female (pregnancy) when she was replaced after informing Respondent that her doctor had released her to return to work. The Florida Commission on Human Relations investigated the complaint and issued its notice of determination: "no cause". In response to the notice, Petitioner filed her petition for relief, and the case was referred to the Division of Administrative Hearings (DOAH) for an evidentiary hearing on the issues.

    The hearing was initially scheduled in Pensacola, Florida, by another hearing officer, at Petitioner's request, since Petitioner was residing in Louisiana. Later, when Respondent objected to venue, the case was assigned to the undersigned hearing officer who contacted the parties and obtained their agreement that the hearing could be conducted by telephone, with the parties participating from their respective locations. The hearing notice dated November 5, 1994, instructed the parties with regard to furnishing witnesses' names and copies of documents in advance of the hearing.


    The hearing proceeded, as scheduled, with the hearing officer presiding from her office in Tallahassee, Florida, with a conference telephone and court reporter.


    Petitioner testified in her own behalf and presented no other witnesses. Her exhibit #1, a composite filed as ordered, in advance of the hearing, was received in evidence.


    Only one witness, Jeff Yarmuth, testified on behalf of Respondent, and its composite exhibit #1, also filed in advance of the hearing, was received in evidence.


    The transcript was not filed, and neither party submitted post-hearing briefs or proposed recommended orders.


    FINDINGS OF FACT


    1. Petitioner, Cindy Kinser, was employed as a waitress by Respondent, Sonny's Real Pit Bar-B-Q (Sonny's) in Orlando, Florida, on September 18, 1991. She had worked in Georgia as a waitress for six months prior to that date.


    2. In the early morning of May 11, 1992, Ms. Kinser was rushed to the hospital emergency room where she learned that she would require immediate surgery to terminate a tubal (ectopic) pregnancy. Prior to the surgery she called Sonny's and told "Sue" that she would not be able to come to work. She was told to just let them know when she would be released by her doctor.


    3. Sonny's has a policy, for maternity leave and for major surgery, that requires its employees to keep in touch during an absence and return to work when they have a medical release. Pregnant employees are permitted six months' maternity leave without pay. Other women have been given leaves of absence from work after surgery and have been permitted to return to work after release by their doctors.


    4. Ms. Kinser talked to the manager, Dale, on May 25th, but was not sure at that time when she could come back. She only knew, and told Sonny's, that the doctor had said that it would take about six weeks to recover.


    5. Ms. Kinser saw her doctor on June 25, 1992, for a final postoperative office visit and was released that date to return to work. She claims that she went immediately to Sonny's and told Dale that she was released. She claims that Dale told her he would call her after he worked out her schedule. She claims he never called, but that she kept calling and getting "a run-around" until finally, in July, someone told her that other waitresses were hired. She did not try to return to work after that.

    6. Respondent does not deny hiring other waitresses throughout the period of Ms. Kinser's absence. The company has to make sure that shifts are covered, but it still allows its employees to return after medical or pregnancy absence provided they have stayed in touch with their supervisor and are released by their doctor.


    7. According to Jeff Yarmuth, Ms. Kinser did not inform Sonny's that she was able to return until sometime in July, two weeks after her doctor's release. By then they had replaced her on her previous shift and told her she would be the next one placed on the schedule. After that, she was not interested in returning to Sonny's.


    8. Ms. Kinser's composite exhibit includes two separate photocopied statements appearing to be from her physician, Dr. Schechter. One is a handwritten note dated June 26, 1992, stating that she (Cynthia Kinser) may "return to work today". The second, a typewritten statement with a signature, is dated July 9, 1992, stating that on June 25, 1992, "...Cynthia was seen for her final postoperative office visit and was released to return to work."


    9. Jeff Yarmuth denies ever seeing the handwritten statement, but relied on the typewritten statement. Ms. Kinser claims that Sonny's had the handwritten statement, because she got the copy from the Florida Commission on Human Relations (FCHR) investigator.


    10. The conflict in testimony is unresolved. Neither party presented corroborating witnesses and neither party presented reliable documentary evidence. Ms. Kinser's documents are copies of pleadings, reports and statements from the FCHR investigative file. Mr. Yarmuth's documents include his letter to the FCHR investigator in response to the charge, a copy of the complaint, the employee earnings, record, and the company's maternity leave policy.


      CONCLUSIONS OF LAW


    11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1).


    12. Section 760.10(1)(a), F.S., (1991) provides that it is an unlawful employment practice for an employer to discharge or fail to hire or otherwise discriminate against an individual because of the individual's sex or handicap.


    13. As established by relevant state and federal case law, Petitioner has the burden of proving the alleged violation, including the burden of initially presenting a prima facie case of discrimination. Once the prima facie case is presented, the Respondent must articulate some legitimate nondiscriminatory basis for its action. The Petitioner must then prove that the Respondent employer's reason is merely a pretext. McDonald Douglas Corp. v. Green, 411 US 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 US 248 (1981).


    14. In this proceeding Petitioner failed to prove a prima facie case. This is not a matter of believing one witness over another. Assuming that Ms. Kinser's testimony was true, she did not present a single instance of another employee, pregnant or merely sick, male or female, who was treated differently. On the other hand, Respondent established that it was willing to take her back to work, but could not place her on the schedule immediately because it was not given advance notice of her medical release.

    15. Petitioner failed to prove that she was discriminated against because of her sex (pregnancy) or, although not alleged, on the basis of a handicap or other impermissible basis.


RECOMMENDATION


Based on the foregoing, it is, hereby, RECOMMENDED:

That the Florida Commission on Human Relations enter its Final Order dismissing Petitioner's complaint and petition for relief.


DONE AND RECOMMENDED this 24th day of March, 1994, in Tallahassee, Leon County, Florida.



MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675


Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1994.


COPIES FURNISHED:


Jeff Yarmuth

Vice President of Operations Sonny's Real Pit Bar-B-Q

217 North Westmonte Drive, Suite 3019 Altamonte Springs, Florida 32714


Cindy Kinser

3023 Quebec Drive

Baton Rouge, Louisiana 70819


Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149


Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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: 93-001951
Issue Date Proceedings
Mar. 24, 1994 Recommended Order sent out. CASE CLOSED. Hearing held December 1, 1993.
Dec. 01, 1993 CASE STATUS: Hearing Held.
Nov. 29, 1993 CC Ltr to Otis B. Mallory from Jeff Yarmuth (to be used as evidence in case) filed.
Nov. 23, 1993 Notice of Ex Parte Filing sent out.
Nov. 22, 1993 Notice of Ex Parte Filing sent out.
Nov. 22, 1993 (Petitioner) Petition for Relief w/Investigator's Memorandum & attachments filed.
Nov. 15, 1993 Letter to Otis B. Mallory from Jeff Yarmuth (re: statement) filed.
Nov. 05, 1993 Ltr to Accurate Stenotype from S. Cravener re: court report confirmation sent out.
Nov. 05, 1993 Order and Notice of Hearing sent out. (telephonic final hearing set for 12/1/93; 10:00am; Eastern Standard Time)
Sep. 21, 1993 Ltr. to DC from C. Kinser re: hearing dates filed.
Jul. 28, 1993 Letter to J Yarmuth from DC sent out. (Re: Case status)
May 27, 1993 Order Granting Motion for Change of Venue sent out.
May 18, 1993 Letter to DSM from Jeff Yarmuth (re: Notice of Ex Parte Communication dated May 10, 1993) filed.
May 10, 1993 Notice of Ex Parte Communication sent out.
May 10, 1993 Order to Show Cause sent out. (parties to show cause why this case should not be closed, must file reply by May 21, 1993)
Apr. 13, 1993 Initial Order issued.
Apr. 08, 1993 Transmittal of Petition; Complaint; Notice of Determination: No Cause; Determination: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief From An Unlawful Employment Practice filed.

Orders for Case No: 93-001951
Issue Date Document Summary
Mar. 24, 1994 Recommended Order Petitioner failed to prove discrimination based on sex/pregnancy as she presented no evidence of disparate treatment.
Source:  Florida - Division of Administrative Hearings

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