STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY ARNOLD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1922

) BURGER QUEEN SYSTEMS, INC., )

)

Respondent. )

) JOANNIE GREER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1923

) BURGER QUEEN SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on November 27, 1984 at the DeSoto County Courthouse in Arcadia, Florida.

APPEARANCES

For Petitioners: James F. Mensing, Esquire

Florida Rural Legal Services, Inc. Post Office Drawer 1449

305 North Jackson Avenue Bartow, Florida 33830

For Respondent: Gilbert Bentley, Esquire

Post Office Box 577 Maitland, Florida 32751

This cause arose when Petitioners Shirley Arnold and Joannie Greer filed complaints with the Florida Commission on Human Relations alleging that they were victims of an unlawful employment practice by the Respondent, Burger Queen Systems, Inc. The petitions generally allege that the Petitioners were discriminated against because of their race (black) and were unlawfully terminated from their jobs with the Respondent for this reason. The petitions were filed on May 14, 1984 and were, in due course, transmitted to the Division of Administrative Hearings for hearing.

On August 21, 1984, some three months after the case had been opened at the Division of Administrative Hearings, the Respondent filed a Motion to Dismiss alleging that the statute of limitations had run on the cause of action and that the Division of Administrative Hearings had no jurisdiction in the matter. That motion was denied by the Hearing Officer.

On August 31, 1984, the Hearing Officer noticed the hearing for Tuesday, November 27, 1984. On November 20, 1984, the Petitioner filed a Motion for Determination of Facts Not In Dispute, based upon the Respondent's failure to file an answer which the Petitioner maintains is mandatory pursuant to Florida Administrative Code Rule 22T-9.08. That rule provides that each Respondent shall file an answer with the Commission within 20 days from service of the petition, and that if a Respondent fails to timely answer, the failure shall be deemed to constitute an admission of the material facts alleged in the petition. That motion should be denied inasmuch as it was not timely raised. The petitions were filed May 14, 1984, accordingly the motion attacking the failure of the Respondent to file an answer was not filed until almost six months after the issue concerning the Respondent's failure to answer became ripe for determination by appropriate motion. During this time discovery was conducted, all parties conducted preparation for trial and the motion was never raised until one week prior to hearing, after significant expense in time and preparation was incurred by the parties. Further, the Petitioners were-on notice, through pre-trial preparation and no later than the date of filing of Respondent's Motion to Dismiss, that the factual allegations of the petitions were genuinely disputed and showed no prejudice occasioned by the failure of Respondent to frame the disputed issues of fact in a formal answer. The hearing was held as scheduled on November 27, 1984 because the response time to the motion had-not elapsed prior to the time set for trial, thus, argument on the motion was heard at trial, at the conclusion of which, the Hearing Officer announced that his recommendation would be to deny the motion. Given the circumstances of this case, the motion clearly was not timely and to grant it would unduly prejudice the Respondent, thus it is denied. See Shepherd v. Board of Dentistry, 385 So. 2d 143 (Fla. 1st DCA 1980).

At the consolidated hearing, the Petitioners presented the testimony of Joannie Greer and Sonia Murphy and the Respondent presented the testimony of Harold Kite, the President and owner of Burger Queen Systems, Inc. and Casey Richards. Additionally, the Petitioners called Casey Richards as a rebuttal witness. Petitioner Shirley Arnold did not testify nor personally appear at the hearing.

At the conclusion of the proceeding, Respondent moved to dismiss the petition on the authority of McWilliams v. Escambia County School Board, 658 Fed. 2d 326 (5th Cir. 1981), asserting in effect, that the Petitioners had not established a prima facie case of employment discrimination for reasons of race. That motion is dealt with by the Conclusions of Law below. Additionally, at the conclusion of the proceeding, the parties requested the right to file proposed findings of fact and conclusions of law after obtaining a transcript of the proceedings. No transcript was ever obtained and filed with the Hearing Officer however.

All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the

material issues presented. To the extent that the testimony of various witnesses c is not in accord with the findings herein, it is not credited.

See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So. 2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So. 2d 383 (Fla. 5th DCA 1983).

The issue concerns whether the Petitioners were the victims of unlawful employment practices inflicted upon them by the Respondent by virtue of their race.

FINDINGS OF FACT

1. The Petitioners, Shirley Arnold and Joannie Greer, are black females and were high school students at the time pertinent to this proceeding. They were employed by Burger Queen Systems, Inc. from the latter part of November, 1979 through January 8, 1980. Burger Queen Systems, Inc., at that time, operated a "fast food" restaurant at which the Petitioners were employed in Arcadia, Florida.

   
   

2. The Petitioners complain that they were terminated from their positions because of their race. They assert in support of that position that they were not given as much training by their employer as white employees were given, nor that they were allowed to rotate through all job positions, with training in all job duties (especially operating the cash register and making sales) as were white employees.

   
   

3. The Petitioners were enrolled in a vocational training program in their senior year of high school which allowed them to work up to 20 hours per week part-time and it was through this program that they received part-time jobs at the Respondent's restaurant in Arcadia. They were given training in food preparation and in preparing the various kinds of hamburgers and cheeseburgers sold by the restaurant. They were rotated through a number of different duties and given training in the performance of each one. In the case of Joannie Greer, however, it was established that in addition to receiving training in preparing the various kinds of sandwiches sold at the restaurant, she was given some training in operating the cash register; and indeed, was trained in most phases of the "fast food" restaurant's food preparation and sales, with the exception of operating the cooking grill and cooking hamburgers, cheeseburgers and the like.

   
   

4. The Petitioners were informed by their Vocational teacher that they could work up to 20 hours per week, and in Joannie Greer's case, at least, she worked up to 16 hours per week, but both Petitioners worked varying numbers of hours according to a schedule provided them by their employer because they were part- time workers still attending high school. Both Petitioners knew they were part-time employees when they were hired and Joannie Greer admitted they were not excluded from any formal training course. Although the Petitioners did not rotate through and train for each duty involved in operating the restaurant, they were informed that they would be allowed to do so, but neither was employed for a sufficient period of time to train in all available duties. It was the restaurant's consistent business practice to train only management personnel in all duties required to operate the restaurant, including cooking and running the cash register, and that no part-time employees were given training in every field. It was not established by Petitioners that white part-time employees were given different or additional training than black part-time employees,

   including the Petitioners. All starting employees were paid the same rate. Both Petitioners knew they were part-time employees only and Joannie Greer acknowledged that they were not promised any definite length or hours of employment, but rather worked on a flexible, part-time schedule.

   
   

5. During the time the Petitioners were employed at the restaurant, Burger Queen Systems, Inc. was in financial difficulties. It operated 19 stores at the time, but by July, 1982 was forced to close all stores due to insufficient revenue and excessive expenses. It was a regular management practice of Burger Queen Systems to send in a management person from its home office in order to attempt to make an unprofitable store profitable. The Arcadia store involved herein was operating at a loss at the time the Petitioners were employed.

   
   

6. It was Burger Queen System's regular business practice in order to turn unprofitable stores into profitable operations, to change management and even change any or all personnel if that was required, in order to improve the profit and loss posture of a given restaurant. In any event, Ann West was dispatched from the home office to the Arcadia store to attempt to improve operations there so it would become profitable. As part of that process, both white and black employees were reduced in the number of hours they could work and employees who did not perform properly were dismissed. Satisfactory employees were dismissed as well for cost control-reasons. The Petitioners were dismissed because they performed their duties too slowly and in a substandard fashion. In this connection, Petitioner's witness Sonia Murphy, attributed an unsubstantiated statement as being made by Ann West to the effect that she had "to get rid of" some black employees. In other portions of her testimony however, Sonia Murphy acknowledged that Ms. West desired to keep some employees, including some black employees, and indeed, some black employees were retained after the Petitioners were terminated. Sonia Murphy was herself in charge of Joannie Greer's training and she, in conducting her training, was told by unspecified management personnel, to have the Petitioner do "other things," that is, rotate her through several jobs, training her in each. This testimony, coupled with that of Petitioner Joannie Greer herself, to the effect that she was well-treated by management personnel and was not excluded front any training programs as compared to other part-time employees, as well as Greer's testimony that a management employee by the name of "Dusty" actually informed her that she was terminated, coupled with Sonia Murphy's testimony that she could not remember the names of the store managers indicates no attempt by Ms. West or other management personnel to single out blacks, and particularly the Petitioners for dismissal, reduction in work hours or reduced training for racially discriminatory reasons. Thus, the totality of the testimony of these two witnesses, coupled with Witness Murphy's general demeanor on the stand, renders her testimony that this statement was made, unreliable and not direct, credible evidence of racially discriminatory practices. Even if the statement had been made by Ms. West, the evidence of record independently establishes that the statement did not represent the motivating factor for the termination of Petitioners.

   
   

7. The Petitioners did not demonstrate that they were the only employees, black or white, terminated for the above reasons. Indeed, in the ensuing period of time prior to hearing, the Respondent ultimately closed all of its stores because of its financial difficulties, such that the Respondent corporation only retains one employee, Casey Richards, its accountant and home office manager, who established from contemporaneous personnel records the above reason for the termination of the two Petitioners.

8. In short, the Respondent ultimately terminated all its restaurant employees due to its financial difficulties and in the case of the Petitioners, for the additional reasons of substandard job performance. There was no substantial prima facie evidence adduced to establish that the Petitioners were terminated solely for reasons of race, nor that, while they were employed, they were discriminated against through the provision of inferior training compared to other non-black employees, nor that the Petitioners got less desirable work than non-black employees.

   
   

9. The Petitioners thus did not establish that the conditions of their employment, including training opportunities, nor the reasons for their termination, were due to their race and moreover, the Respondent employer established valid business reasons for their termination, and indeed ultimately for all its employees, that is, severe financial difficulties culminating in ultimate business failure, and in the case of these two Petitioners, substandard job performance. This last was the reason provided by the employer, in writing, to the Petitioners high school teacher in charge of their vocational training, part- time job program.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes (1983).

    
    

11. Subsection 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer:

    
    

    1. to discharge . . . any individual with respect to . . . employment, because of such individual's race. . . .

       
       

12. The Petitioner, of course, carries the burden of establishing that an unlawful employment practice has occurred. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this regard, the instructive language of the United States Supreme Court concerning the basic allocation of burdens and order of presentation of proof in an employment discrimination case is controlling. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). In the Burdine case, the court held that the burden rests on the employee to prove, by preponderance of evidence, a prima facie case of employment discrimination. If the employee succeeds, then the burden shifts to the employer to establish some legitimate, nondiscrimination, valid business purpose for the employee's discharge. Should the employer then establish such a valid purpose for discharge, then the employee must prove by preponderance of the evidence, that the legitimate reasons offered by the employer were not its true reasons, but were rather a pretextual basis for actual discharge for discriminatory reasons.

    
    

13. The Petitioners herein failed to present a prima facie case of discrimination. Indeed, there was no substantial evidence that the discharge was based upon race at all. Even if the purported discriminatory statement of Ann West was established to have been made, the Respondent in this case demonstrated without contradiction, in its case-in-chief, that the Petitioners were terminated for legitimate, non-discriminatory business reasons, namely their substandard job performance and the Respondent's compelling business need to reduce the hours and numbers of employees, black and white, because of its dire financial condition. The Respondent established that the Petitioners were

    given required training in the different jobs they were to perform as part-time employees and that no employee whether full or part-time, was given training in all phases of operation of the restaurant unless an employee was in an management training program, which clearly the Petitioners, as part-time employees, were not.

    
    

14. Accordingly it is concluded that no unlawful employment practice has occurred and that the Petition for Relief should be denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the Petitions for Relief filed by Shirley Arnold and Joannie Greer be DISMISSED with prejudice.

DONE and ENTERED this 12th day of June, 1985 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 12th day of June, 1985.

COPIES FURNISHED:

James F. Mensing, Esquire

Florida Rural Legal Services, Inc. Post Office Drawer 1499

Bartow, Florida 33830

Gilbert Bentley, Esquire Post Office Box 577 Lakeland, Florida 32751

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Aurelio Durana, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-001922

Orders for Case No: 84-001922