STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE A. KRESS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3310

) WENCO OF PANAMA CITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on January 31, 1994, in Panama City, Florida.

APPEARANCES

For Petitioner: Bruce A. Kress, pro se

2601 West 19th Street Panama City, Florida 32405

For Respondent: Danny R. Strickland

Wenco of Panama City

2110 West 23rd Street, Suite C Panama City, FL 32405

STATEMENT OF THE ISSUES

Did Respondent discriminate against Petitioner because of his alleged handicap of dyslexia?

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination against the Respondent on February 2, 1993. The Human Rights Commission investigated the allegation and determined that there was no cause. The Commission advised Petitioner of his right to a formal hearing, and the Petitioner made a timely request for formal hearing. The case was forwarded to the Division of Administrative Hearings on June 14, 1993.

The case was set for hearing on October 15, 1993, by Hearing Officer Benton, and heard by the undersigned after Mr. Benton was appointed to the First District Court of Appeal.

At hearing, Petitioner testified in his own behalf. Petitioner offered one exhibit, a letter from David Winkle to Mrs. Allen Corless. Respondent offered a late-filed composite exhibit of Petitioner's application and medical questionnaire. Respondent filed a letter after the hearing suggesting certain

facts. Petitioner did not file any posthearing pleadings. Appendix A states which of Respondent's proposed facts were adopted and which were rejected and why.

FINDINGS OF FACT

1. Bruce A. Kress is a white male approximately 33 years of age.

   
   

2. Wenco, Inc., is a Florida corporation operating several Wendy's fast food restaurants in Panama City, Florida.

   
   

3. Petitioner was employed by Wenco, Inc., for several months during 1992, as a member of the restaurant staff or "crew." He voluntarily quit his job in or around October 1992.

   
   

4. In December 1992, Petitioner spoke with Danny Strickland of Wenco, Inc., about becoming a manager trainee. In January of 1993, Petitioner was hired in their training store as a manager trainee.

   
   

5. A manager trainee is assigned to perform all the duties in a crew to learn the procedures for running a store.

   
   

6. Phillip Cady was the manager of the training store where Petitioner was employed as a manager trainee.

   
   

7. When hired, Petitioner filled out an application and medical history statement or questionnaire.

   
   

8. Neither the medical questionnaire nor application reveal Petitioner's alleged disability.

   
   

9. Petitioner's supervisor denies knowledge of Petitioner's alleged disability.

   
   

10. Petitioner's evidence in support of his alleged disability is a letter from David H. Winkle to Mrs. Allen Corless, Petitioner's parent or guardian, stating that Petitioner was obtaining educational help in a federally funded program. Neither the letter nor its attachment state a diagnosis, assuming the hearsay nature of the letter is overlooked.

    
    

11. Phillip Cady testified. He was Petitioner's immediate supervisor while Petitioner was a manager trainee. Cady had cautioned Petitioner that he would have to rigidly adhere to the procedural manual for operating the store. Cady warned Petitioner that if Petitioner didn't follow the procedural manual that Petitioner would be terminated.

    
    

12. After warning, Petitioner was discharged by Cady when Petitioner did not scoop ice into drink cups with the ice scoop and when Petitioner removed fries from the cooker before they were fully cooked.

    
    

13. Petitioner introduced no evidence to show the reason offered by Respondent for discharging him was pretextual or discriminatory.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. The burden of proof rests with Petitioner to show he is part of a protected class and was discriminated against because of that status.

    
    

16. Petitioner failed to show he was handicapped, and was a member of a protected class. Respondent showed it had no knowledge of Petitioner's alleged condition.

    
    

17. Respondent presented evidence that it discharged Petitioner for cause. Petitioner did not present any evidence that the action was pretextual.

    
    

18. Petitioner may indeed have a condition which adversely effects his ability to read; however, Respondent was terminated not because he had the alleged condition, but because of the condition's effect on his performance. A person who is aware of this type of disability is not protected unless he or she makes the employer aware of he problem and asks for assistance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that the agency find that Respondent did not discriminate against Petitioner.

DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 28th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3310

On February 3, 1994 Respondent filed a post hearing brief. The following states which of the findings proposed by Respondent were adopted, and which were rejected and why:

1-2 Irrelevant.

3-4 Adopted.

5 Irrelevant

COPIES FURNISHED:

Bruce A. Kress

2601 West 19th Street Panama City, Florida 32405

Danny R. Strickland Wenco of Panama City 2110 West 23rd Street Suite C

Panama City, FL 32405

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 93-003310

Orders for Case No: 93-003310