STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY K. HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1416

)

KAPOK TREE RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on May 29, 1987 in Clearwater, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. This case involves a charge of discrimination in employment due to a handicap filed by Betty K. Harris (Petitioner) against Kapok Tree Restaurant (Respondent). The parties were represented as follows:

Petitioner: Terry M. Broklehurst, Esquire

2420 Enterprise Road, Suite 204

Clearwater, Florida 33575

Respondent: W. Reynolds Allen, Esquire

Gail Goldman Holtzman, Esquire 609 West Horatio Street

Tampa, Florida 33606

Petitioner testified on her own behalf and also called Beverly Meffert, her daughter and former employee of Kapok Tree Restaurant, and Scott Evans, her former supervisor. Respondent introduced one exhibit, and called Gary West, general manager, and Janice Kehoe, who also previously supervised Petitioner.

No transcript of the hearing was filed. The parties were allowed to file posthearing proposed findings of fact and memoranda. At the conclusion of Petitioner's case-in-chief, as well as at the conclusion of Respondent's case, a motion to dismiss was made on behalf of Respondent, but a ruling was reserved so that the evidentiary record could be completed. A ruling on the motion to dismiss is included in this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed as a waitress at the Kapok Tree Restaurant in October, 1983. She suffered a heart attack in August, 1985 and remained out of work until January, 1986 at which time she was rehired by Respondent as a hostess.

   
   

2. From January, 1986 until June 3, 1986 Petitioner was employed by Respondent as a hostess, and her duties included greeting and seating customers. She also made sure customers' reservations were in order and that customers were equally distributed among the waiters and waitresses. While she was a hostess, Petitioner's supervisors were Scott Evans and Janice Kehoe.

3. Respondent rehired Petitioner in January, 1986 as a hostess rather than a waitress because the duties of a hostess are less strenuous than those of a waitress, and Petitioner willingly accepted the position. She enjoyed her job as hostess very much, and had no medical limitations which in any way precluded or adversely affected her performance of a hostess' duties.

   
   

4. While employed as a waitress Petitioner was counseled, and placed on one-week suspension without pay by her supervisor on April 30, 1984 for being rude to customers. She also received a disciplinary warning slip on May 26, 1985 for poor attitude and uncooperative response to job training and supervisor direction.

   
   

5. After being rehired as a hostess, her performance was less than ideal and she became flustered and gruff with customers, according to Scott Evans and Janice Kehoe, her supervisors. She was counseled approximately five times about her performance as a hostess, and then was laid off on June 3, 1986 because business volume was down, and only the most outstanding employees could be retained. Since petitioner's performance was only satisfactory, but not as outstanding as others, she was selected to be laid-off.

   
   

6. There is no competent substantial evidence that Petitioner's heart condition, or insurance expenses associated therewith, were in any way considered by, or factors in, Respondent's decision to lay-off Petitioner.

   
   

7. Ten other employees were laid-off, or had their hours reduced, at approximately the same time as Petitioner's lay-off due to slow business volume.

   
   

8. Respondent does currently employ handicapped workers. There is no evidence that Respondent discriminated against Petitioner in this case due to any handicap.

   
   

9. Petitioner would not be considered for rehire by Respondent due to her performance as a hostess.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65, Florida Statutes; City of Clearwater Ordinances Number 1843, 1859 and 2004; Pinellas County Ordinance 84-10.

    
    

11. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains her initial burden, the Respondent would then have to establish some legitimate,

    non- discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Communitv Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

12. Petitioner has failed to establish a prima facie case of discrimination. She was laid-off due to a drop in business volume, and also because her performance was not at the level of other employees. Petitioner was counseled about her performance as hostess, as she had previously been counseled and disciplined for her performance as a waitress.

    
    

13. Absolutely no evidence has been offered to establish that Petitioner was laid-off due to her medical condition or insurance claims associated therewith. When business declined, Respondent simply kept the best employees and laid the rest off, including Petitioner.

    
    

14. Respondent has declined to rehire Petitioner for legitimate, non- discriminatory reasons involving her prior performance. Petitioner's supervisors had good cause and legitimate reasons for counseling with her repeatedly while she was employed as hostess.

    
    

15. In this case, Petitioner alleges that Respondent has discriminated against her on the basis of her handicap and her medical condition by selecting her for lay-off. However, the overwhelming weight of evidence shows that the Petitioner cannot establish a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, non-discriminatory reasons. Respondent has articulated legitimate reasons or laying-off Petitioner and for refusing to rehire her. Finally, Respondent has convincingly rebutted any allegation of pretextual treatment in the Petitioner's attempt to compare her situation with that of other employees since it was established that others were also laid-off due to the decline of business. Thus, the Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent.

DONE AND ENTERED this 16th day of June, 1987, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1987.

COPIES FURNISHED:

Terry M. Broklehurst, Esquire 2420 Enterprise Road, Suite 204

Clearwater, Florida 33575

W. Reynolds Allen, Esquire Gail Goldman Holtzman, Esquire 609 West Horatio Street Tampa, Florida 33606

Ronald M. McElrath Post Office Box 4748

Clearwater, Florida 33518-4748

Miles Lance, Esquire Post Office Box 4748

Clearwater, Florida 33518-4748

Docket for Case No: 87-001416

Orders for Case No: 87-001416