STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARDO A. ZAPATA, )

)

Petitioner, )

)

vs. ) Case No. 85-2617

)

CHEFS OF FRANCE OF )

ORLANDO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Orlando, Florida on March 6, 1986. The appearances were as follows:

APPEARANCES

For Petitioner: Leonardo A. Zapata, pro se

Post Office Box 1934 Kissimmee, Florida 32742

For Respondent: Susan K. McKenna, Esquire

Post Office Box 60 Orlando, Florida 32802

PROCEDURAL BACKGROUND

On or about July 31, 1985, the Petitioner, Leonardo Zapata, filed a petition for relief from a determination of "no·probable cause" which had been entered by the Florida Commission on Human Relations on June 25, 1985. The cause was duly transmitted to the undersigned Hearing Officer and the hearing was held on the above date.

The Petitioner presented his own testimony and the Respondent presented the testimony of Brenda Kennedy, Francois Fourreau, and John Thall who were employed by the Respondent contemporaneously with the Petitioner. The

Petitioner presented ten exhibits. Petitioner exhibits 2, 3, 5, 6, and 7 were admitted only as corroborative hearsay pursuant to Section 120.58, Florida Statutes. The Petitioner's exhibits 4 and were admitted into evidence.

The Petitioner's exhibits 1, 8, and 9 were not admitted. The Respondent presented six exhibits, all of which were admitted into evidence.

The parties elected to have the proceedings transcribed, and the transcript was duly filed with the Hearing Officer, after which the parties timely filed proposed findings of fact and conclusions of law. Those pleadings have been reviewed and considered in the rendition of this Recommended Order and additionally are treated in the appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Respondent has been subjected to employment discrimination by termination on the basis of his national origin.

FINDINGS OF FACT

1. The Petitioner is an Hispanic male who was employed as a sales host in the pastry department of the Respondent, Les Chefs de France, a restaurant located in the French Pavilion of Epcot Center at Walt Disney World.

   
   

2. On August 12, 1983, the Petitioner and another employee of the Respondent, Mr. Kenneth Day, a non-Hispanic, were involved in a fight in Respondent's cooler, a refrigerated room located on the Respondent's premises. Ms. Brenda Kennedy was working in the Respondent's salad department at the time and she and another employee, Charles Hammel, were present in the cooler and witnessed the fight. Mr. Day had entered the cooler to pick up some supplies and was in the process of taking a tray out of a tram or rack when the Petitioner walked into the cooler and peremptorily told Day to get out of his way. When Day requested that the Petitioner wait until he was finished, the Petitioner shoved the tray back into the tram and pushed Day towards the back of the cooler. The Petitioner then began hitting Day with his fists. Francois Fourreau, the executive chef for the Respondent, heard a noise in the cooler at that point, looked through the window and saw Day holding the Petitioner and the Petitioner throwing punches at Day.

   Fourreau entered the cooler, separated the two men and directed them to leave the place of employment immediately.

   
   

3. The Petitioner reported to the Walt Disney World infirmary and told the nurse to examine him, that he had been assaulted by another employee. A medical record prepared by that nurse indicated that the Petitioner suffered a laceration on his right hand and abrasions on his left arm. (Petitioner's composite exhibit 1 in evidence). Walt Disney World security was notified of the incident. Written statements regarding their versions of the incident were prepared by the Petitioner, Kenneth Day, Brenda Kennedy, and Francois Fourreau. Copies of them were provided to Bernie Juban, the Respondent's general manager. (See Respondent's exhibits 1 and 3 in evidence).

   
   

4. On August 13, 1983, John Thall, who was the -assistant manager of food and beverages for the Respondent, met with Juban to discuss the incident. After reviewing the written statements, the two men decided that both Petitioner and Mr. Day should be terminated from employment in accordance with the established, consistent company policy which prohibited fighting on the job. The Petitioner was notified of this decision by a letter signed by Juban dated August 15, 1983. Day received a similar termination letter.

   
   

5. The Petitioner acknowledges the existence of the company policy which provides that fighting may result in termination of all parties involved. This policy is contained in the employee policy handbook, which was in existence at the time of the incident and was given to all employees, including the Petitioner, at the time of their hire (Respondent's exhibit 2 in evidence). No employee who instigated or actively participated in an altercation during restaurant hours has been allowed to continue in the employ of the Respondent according to this policy which was shown to be consistently enforced.

   
   

6. A previous incident had occurred between Mr. Fourreau and Eduardo Davilla, in which Davilla began punching Fourreau, his supervisor, in a disagreement over a work assignment. This altercation resulted in Davilla's termination, although Fourreau was not disciplined. Petitioner references this as an instance of Hispanics being discriminated against by the Respondent in favor of French Nationals employed by the Respondent. In that

   instance, however, Fourreau did not instigate nor actively participate in the altercation and thus the policy was not applicable to him. He simply put his arm in front of his face to protect himself. Mr. Thall had witnessed this incident, intervened in it, and stopped it by restraining Mr. Davilla from behind. This incident is further explained in Respondent's exhibit 5 in evidence.

   
   

7. Prior to August 12, 1983, Mr. Day had threatened or in some other manner had an altercation with a supervisor, Christine Grassiot. Mr. Day was not disciplined by the Respondent for that incident. After the Respondent received the notice regarding the alleged discrimination in the instant case, Ms. Grassiot prepared a statement indicating that Mr. Day was only trying to irritate her at the time and that the episode was a totally personal matter between the two of them. The Respondent had no prior knowledge of this incident until the Petitioner alleged it in this cause as a basis for trying to show selective enforcement of the above policy.

   
   

8. Prior to August 12, 1983, Day also reportedly had a disagreement of some sort with another employee of the Respondent, Kiki Babalagua, apparently involving him bumping into her with a "sheet pan" in the restaurant. Ms. Babalagua informed Brenda Kennedy of the incident and Day explained to Kennedy that he had accidentally bumped into her and apologized for it. In any event, this was not a fight or altercation as contemplated by the above-mentioned policy. Both Kennedy and Fourreau established that Ms. Babalagua was a difficult employee in terms of her personal relations with others and was "hard to get along with."

   She was later transferred to another location at her own request because she wanted to broaden her knowledge of the restaurant business and learn to work with pastries.

   
   

9. Prior to August 12, 1983, Jean Luc Nichols, an employee of the Respondent working in a test kitchen at Disney Central Foods, was transferred by the Respondent at the personal request of a Walt Disney World manager, Mr. John Cardone, apparently to avoid a personality conflict. There is no evidence to show that Ms. Nichols was transferred because of a fight or other altercation.

   
   

10. Finally, Petitioner acknowledges that the phrase "les imigres" translates in English as "the immigrants" and is not a standard cultural slur in the French language.

    Additionally, the testimony of Mr. Fourreau refuted Petitioner's allegation that this phrase had assumed a particular derogatory or discriminatory meaning among employees and staff at the restaurant.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The preponderant evidence of record underlying the above Findings of Fact shows that the Petitioner failed to establish a prima facie case of discrimination based upon his national origin. Since the Petitioner acknowledges the existence of the company policy which provides that fighting on the job may result in termination of either participant, the only issue for determination is whether or not that policy was applied in a discriminatory fashion in violation of Section 23.167, Florida Statutes. The Petitioner failed to sustain this burden since there has been no proof by competent, substantial evidence to support his allegation of disparate treatment. Although Petitioner alleged that certain French speaking employees involved in alleged fights or altercations had not been terminated or had been transferred instead of being terminated, the above Findings of Fact reveal that not to be the case. The simple fact is that Mr. Day and the Petitioner were both terminated for the August 12, 1983 fight. Witnesses Kennedy and Fourreau established that the Petitioner was throwing punches in the course of the fight and their testimony is substantiated by written statements prepared on the day of the incident. In addition, Ms. Kennedy testified that Zapata had in fact instigated the fight, as corroborated by her contemporaneously recorded statement. Thus' the preponderant evidence overwhelmingly supports the conclusion that the established company policy against fighting on the job was not discriminatorily applied in that both Petitioner and Day (a non-Hispanic) were terminated for their involvement in that episode.

    
    

13. There is insufficient evidence to support Petitioner's allegation that the company policy against fighting had been enforced in a discriminatory fashion in light of incidents occurring with other employees prior to August 12, 1983, specifically employees of French nationality. Kennedy, Fourreau, and Thall all testified that there had

    never been an occasion when an employee who either instigated or actively participated in a fight was not terminated for his or her involvement. The incidents involving Day and Christine Grassiot, Day and Kiki Babalagua, and Jean Luc Nichols were not "fights". Thus they fall outside the scope of the company policy at issue. Even if the Petitioner's testimony regarding these incidents is credited, the incidents were not shown to have a direct bearing on the central issue of whether the company prohibition against fighting was applied in a discriminatory fashion.

    
    

14. Finally, the altercation between Fourreau, a supervisor, and Davilla, an employee in his charge, does not support Petitioner's allegation of disparate treatment. Fourreau took no active part in that fight, but rather was unilaterally attacked by Davilla after Davilla objected to a work assignment made by Fourreau. Fourreau only put up his arm to protect himself and did not seek to strike Davilla.

    
    

15. In conclusion, the preponderant evidence of record clearly demonstrates that the Respondent's actions toward the Petitioner were motivated by legitimate, non- discriminatory business reasons in accordance with established company policy of, which the Petitioner was clearly informed before the incident. The Petitioner did not prove any disparate treatment and thus no discrimination of any fashion, including any based upon his national origin.

    
    

    RECOMMENDATION

    
    

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

    
    

    RECOMMENDED that the petition for relief filed by the Petitioner, Leonardo A. Zapata, be DISMISSED.

    
    

    DONE and ORDERED, this 25th day of July, 1986 in Tallahassee, Florida.

    
    

    
    

    1. 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 25th day of July, 1986.

       
       

       APPENDIX

       
       

       Petitioner's Proposed Findings of Fact Paragraph I

       1. : accepted, but not material to resolution of the material

          issues presented.

       2. : rejected as irrelevant.

       3. : rejected as contrary to the preponderant evidence. (d): rejected as irrelevant.

          1. : accepted, but irrelevant.

          2. : rejected as contrary to the preponderant evidence.

          
          

          1. (a): rejected as constituting argument and not supported by

             the evidence.

             (b): rejected as constituting argument and discussion

             of

             evidence and testimony.

             
             

          2. (a): rejected as immaterial.-

             (b): accepted but immaterial in the full context of

             the

             
             

             witness's testimony. (c): (same as (b).

       4. : rejected as not supported by record evidence.

          
          

          1. (a): accepted, but not supportive of Petitioner's position.

             1. : rejected as contrary to the greater weight of the evidence.

             2. : (same as (b))

    1. (a): rejected as not supported by the greater weight of the evidence.

    1. : accepted, but irrelevant to resolution of the material

       issues presented.

    2. : accepted, but immaterial. (d): accepted, but immaterial.

    (e): accepted but not dispositive in itself. (f): rejected as to its purported import; merely

    argument.

    1. : rejected as not supported by preponderant testimony and

       evidence.

    2. : accepted, but immaterial to resolution of the issues at

       bar.

    3. : (same as (g) above.)

    Respondent's Proposed Findings of Fact Paragraph 1. - accepted

    1. - accepted

    2. - accepted

    3. - accepted

    4. - accepted

    5. - accepted

    6. - accepted

    7. - accepted

    8. - accepted

    9. - accepted

Copies furnished:

Leonardo A. Zapata Post Office Box 1934

Kissimmee, Florida 32742

Susan K. McKenna, Esquire Post Office Box 60 Orlando, Florida 32802

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

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

Docket for Case No: 85-002617

Orders for Case No: 85-002617