STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBRA A. LARSON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3098

)

DRACUT CORPORATION, )

d/b/a KINGS INN RESTAURANT )

and LAWRENCE F. JUDGE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer in Pensacola, Florida on October 24, 1988.

APPEARANCES

For Petitioner: Debra A. Larson, Pro Se

9742 Aileron Avenue, Apt. 606

Pensacola, Florida 32506

For Respondent: No Appearance Draco Corporation,

d/b/a Kings Inn Restaurant and Lawrence F. Judge:

BACKGROUND

Ms. Debra Larson filed a complaint of discrimination alleging that Dracut Corporation, d/b/a Kings Inn Restaurant had discriminated against her on the basis of sex (female, pregnancy) in violation of the Human Rights Act of 1977, as amended, codified at Sections 760.01-760.10, Florida Statutes (1987). The Petitioner was employed with the Respondent from August 3, 1985, until May 10, 1986, in the position of waitress. The Petitioner maintains that after the Respondent's owner and general manager, Mr. Lawrence F. Judge, Jr., became aware of her pregnancy, he began to harass her and give her disparate treatment as compared to other waitresses who normally had the same duties. Before that time, the Petitioner maintained that she was never counseled or criticized concerning her job performance but rather was commended. Petitioner maintains that she was thereafter frequently required to work late at least one night per week on numerous occasions when she had not been scheduled in advance to work late. She was required to stay and help the person who was scheduled to close the restaurant. She asserts that other waitresses were not required to do this. She also began experiencing a problem with her employer yelling at her, cursing at her and otherwise treating her in disparate ways. She felt humiliated by this. The Petitioner left employment with the Respondent on May 10, 1986, alleging that she could no longer tolerate the employment conditions, including

those referenced above. She filed a Petition seeking relief with the Human Relations commission and, after a preliminary "probable cause" finding, the matter was referred to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented her own testimony, and eight exhibits, all of which were admitted into evidence.

Petitioner's exhibit 9 was admitted and was late-filed, by approval of the Hearing Officer. Additionally, the Petitioner sought leave to submit tape recordings of her successful unemployment compensation hearing concerning this same factual situation, involving the reasons she left her employment. She was given an extended period of time to obtain and file these tapes as an exhibit but, after receiving an additional extension, has not done so. Accordingly, this Recommended Order is rendered based upon the record as it stands to date, including her testimony, and the above referenced exhibits which were submitted.

The issues to be resolved in this proceeding concern whether employment discrimination was imposed upon the Petitioner for reasons of her sex, related to her pregnancy. Included within that general issue is the question of whether the Petitioner has shown a prima facie case for such employment discrimination and whether the employer has come forward with a nondiscriminatory rationale for the conduct and factual circumstances involved herein. If so, the Petitioner is obligated to demonstrate whether those alleged nondiscriminatory reasons for the employee's treatment and termination from employment are pretextual.

FINDINGS OF FACT

1. The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing."

   
   

2. Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the

   dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant.

   
   

3. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein.

   
   

4. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, (1987).

   
   

6. The uncontradicted evidence of record and the above findings of fact reveal that the Petitioner is a "person" within the meaning of Section 760.02(5), Florida Statutes and is an "individual" within the meaning of section 760.10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes.

7. Section 760.02(3) provides that a "discriminatory practice" is any practice made unlawful by Sections 760.01-760.10. Section 760.10(1) provides:

   
   

   1. It is an unlawful employment practice for an employer:

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions,

or privileges, of employment, because of such individuals, race, color, religion, sex, national origin, age, handicap, or marital status.

Here there is no question that the above findings of fact reveal that indeed the Petitioner was harassed into quitting her job, although she was not discharged by her employer directly, during one specific episode. In fact, the employer's intent to terminate her employment is amply made clear by the factual pattern described above, in which the repeated instances of harassment, extra duty and disparate treatment perpetrated by the employer only began after the Petitioner announced her pregnancy. This pattern of conduct on the part of the employer toward the Petitioner, together with his statements concerning his view that he could terminate the Petitioner because of her pregnancy at some point, together with the statement made by his Assistant Manager to the same general effect, clearly reveals an intent that the Respondent wished to terminate the Petitioner's employment because of her pregnancy and therefore because of her sex. Because the Petitioner has established a prima facia case of such discriminatory treatment and, therefore, an unlawful employment practice, and because no countervailing evidence was adduced, it must be concluded that the Petitioner's case for an unlawful employment practice based upon the Petitioner's sex has been established and that the remedies available in Section 760.10, Florida Statutes should be accorded her.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore

RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes.

DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989.

COPIES FURNISHED:

Debra A. Larson, Pro Se

9742 Aileron Avenue, Apt. 606

Pensacola, Florida 32506

Dracut Corporation

d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr.

Owner/General Manager 1309 Maldonado

Pensacola Beach, Florida 32561-2323

Donald A. Griffin Executive Director

Florida Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

Florida Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-003098

Orders for Case No: 88-003098