STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA CERNAN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3983

)

TALK OF THE TOWN MEETIN' )

& EATIN' PLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 14, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: Peter Dubbeld, Esquire

5656 Central Street

St. Petersburg, Florida 33707

For Respondent: John Fogarty, Esquire

327 South Garden Avenue Clearwater, Florida 33516

By letter dated December 20, 1983, the City of Clearwater forwarded a Charge of Discrimination form by Donna Cernan, Petitioner, against Talk of the Town Meetin' & Eatin' Place, Respondent, along with a copy of an Investigative Report dated October 10, 1983, and copies of letters to each party attempting to reach a conciliation agreement; and requested a Hearing Officer be assigned to hear the case. No correspondence from Respondent was enclosed and it can only be presumed Respondent denied the allegations and conciliation efforts were unsuccessful.

At the hearing Petitioner testified in her own behalf, Respondent called five witnesses, and four exhibits were admitted into evidence. Neither party submitted Proposed Findings within the ten-day period set by the Hearing Officer at the conclusion of the hearing. Proposed findings subsequently submitted by Petitioner, to the extent included herein, are adopted, otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. Donna Cernan worked at Talk of the Town Meetin' & Eatin' Place and its predecessor "Freckles" as a cocktail waitress from September, 1980, until she was discharged May 11, 1983. During this period Petitioner also qualified and

   worked as a bartender part of the time, but preferred the position of cocktail waitress as she made more money in that job than as a bartender.

   
   

2. All cocktail servers, except bartenders, at Respondent are females.

   
   

3. Cocktail waitresses and female bartenders wear a form-fitting Danskin uniform, while male bartenders wear dark trousers and light colored shirts.

   
   

4. In January, 1983, Petitioner voluntarily quit her job and remained away for approximately three months to resolve family problems. At the time she left, Petitioner was head cocktail waitress responsible for supervising the lounge and training new cocktail waitresses. When she asked for her job back in April, 1983, she was rehired as a cocktail waitress.

   
   

5. In April, .1983, it was announced at a staff meeting that some of those overweight should reduce. Petitioner was told she should lose ten pounds. Four other cocktail waitresses were told they were overweight. No evidence was presented that any of these employees were terminated or that they lost weight. When Petitioner inquired what weight had to do with being a good waitress, she was told by one of Respondent's managers that in addition to cocktails Respondent sold sex appeal. Petitioner took diet pills to help her reduce but testified they only made her sick.

   
   

6. Three co-workers of Petitioner testified that when Petitioner returned to work in April, 1983, her attitude was poor; she would "fly off the handle" with co-workers and customers; and she continued to have problems at home and brought those problems with her to work. As a result, her attitude towards her job was poor and Petitioner acknowledged poor attitude to her co-workers. This poor attitude is also confirmed by Petitioner's testimony that, although she had worked as a cocktail waitress for ten years, she liked her uniform until she was told Respondent sold cocktails and sex appeal; and from that moment on she hated the Danskin.

   
   

7. Although Petitioner denied she ever drank on the job in violation of Respondent's policy, one witness who worked as a bartender at the time testified she gave Petitioner peppermint schnapps when Petitioner requested it. When asked why she did that knowing it was contrary to Respondent's rules, she stated she was the "new kid on the block" and wasn't going to dispute a request from an oldtimer like Petitioner. This latter testimony is deemed more credible than Petitioner's testimony in this regard and is accepted.

   
   

8. In April, 1983, as part of Respondent's training program, all of the waitresses were given an exam on procedures to follow and on the prices of various drinks. They had been provided the answers prior to the test and were required to obtain a passing grade of 90 percent accurate. If they failed, they were allowed to retake the exam until they passed it.

   
   

9. A copy of the first examination turned in by Petitioner was admitted into evidence as Exhibit 4. Petitioner answered Question 40, "What do you think about having to take this test?", with one word, "Shit."

   
   

10. Petitioner, in her complaint of discrimination, alleged that the male bartenders were not required to lose weight and cited as an example Jeff Whitten as being overweight. Three photographs of Whitten were admitted as Exhibit 3. These photographs were taken in November, 1983, and all of Respondent's witnesses shown these photographs identified the subject and stated he looked in the photographs the same as he did in April, 1983. Petitioner testified Jeff

    looked thinner in the photographs than he did in May, 1983. Exhibit 3 shows a man who was described as 6 feet 2 inches tall, weighing about 190 pounds, and the photographs do not indicate obesity.

    
    

11. On May 11, 1983, Petitioner was called into the office of Doug Gordon, one of Respondent's managers and Petitioner's "boss," and told he was sorry but he had to terminate her because of her attitude on the job. At the same time, he gave her a letter of recommendation (Exhibit 1)

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 7B-18, Ordinance No. 1843 of the City of Clearwater provides it shall be an unlawful discriminatory practice:

    
    

    1. For an employer, because of the

       race, creed, color, national origin, sex, age, handicap, or marital status, to refuse to hire or employ or to bar or

       to discharge from employment such indivi- dual in compensation or in terms, con- ditions, or privileges of employment.

       
       

14. The allegations in this case are that Petitioner was subjected to unlawful discriminatory practices because of sex.

    
    

15. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's rejection. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

16. To establish a prima facie case Petitioner must present facts which "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common nondiscriminatory reasons for the plaintiff's rejection. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

    
    

17. Where sex discrimination is alleged, the critical factor which must be shown in order to prove the acts complained of constitute discrimination by reason of sex is disparity of treatment between males and females. See, Popp v. Hacienda Gardens, DOAH Case No. 83-1242, March 29, 1984, and cases therein cited.

    
    

18. No disparate treatment between sexes was here shown. Not a scintilla of evidence was presented that, assuming Petitioner was dismissed because she was overweight, overweight males were not also required to lose weight or discharged for not doing so. As a matter of fact, no evidence was presented that any male bartender was overweight other than the testimony of Petitioner

    and, if Whitten was overweight, he had lost the excess pounds by the time the photographs were taken. Accordingly, Petitioner has failed to establish a prima facie case that she was subjected to disparate treatment because she is a female.

    
    

19. Even if the evidence presented is deemed sufficient to establish a prima facie face of sexual discrimination and shift the burden to Respondent, Respondent has offered unrebutted evidence that Petitioner was dismissed because of her poor attitude towards her job. This evidence consisted of the testimony of three co-workers of Petitioner who observed Petitioner's attitude at work and Petitioner's acknowledgment of a bad attitude toward her job. Further, this attitude is corroborated by Petitioner's testimony that she did not feel good about her Danskin after being told sex appeal as well as cocktails were being sold and by the answer to Question 40 she gave in Exhibit 4.

    
    

20. From the foregoing, it is concluded that Petitioner has failed to establish a prima facie case of unlawful discrimination by reason of sex and, even if the evidence presented could be held to reach the status of a prima facie case, Respondent has articulated a legitimate reason for Petitioner's dismissal. It is

RECOMMENDED that the complaint of Donna Cernan against Talk of the Town Meetin' and Eatin' Place alleging she was discharged because of unlawful sexual discrimination be dismissed.

ENTERED this 4th day of September, 1984, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of September, 1984.

COPIES FURNISHED:

Peter Dubbeld, Esquire 5656 Central Street

St. Petersburg, Florida 33707

John Fogarty, Esquire

327 South Garden Avenue Clearwater, Florida 33516

Thomas H. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 83-003983

Orders for Case No: 83-003983