vs. ) CASE NO. 88-5688
Respondent. )
A hearing was held in this case on April 13, 1989 in Sarasota, Florida, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Petitioner, Mr. Oberoi, was unlawfully discharged from employment with Respondent because of his handicap.
Petitioner: Robert E. Turffs, Esquire
On February 26, 1986, Petitioner, Satinder Oberoi, filed a Complaint of Discrimination against the Respondent alleging he had been terminated unlawfully from his position as General Manager of Baxter's because of his handicap. On June 13, 1988, after an investigation by the Office of Employment Investigations, Florida Commission on Human Relations, the Executive Director of the Commission entered a Determination of No Cause, and on November 10, 1988, Mr. Oberoi filed a Petition For Relief From An Unlawful Employment Practice.
The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer on November 17, 1988 and on November 29, 1988, the undersigned set the case for hearing on January 24, 1989. This hearing was cancelled due to an unforeseen conflict in the undersigned's schedule, and by an Order Setting Hearing dated March 1, 1989, the matter was rescheduled for April 13, 1989 at which time it was held as scheduled.
At the hearing, Petitioner testified in his own behalf. He did not submit any documentary evidence. Respondent presented the testimony of Larry L. Brockway, a former employee at Baxter's; Susan Schoenbaum, Vice-President of Jady's Inc., parent corporation of Baxter's; Jeff Schoenbaum, President of Jady's Inc.; Richard M. Hershorin, part owner of Jady's Inc.; and Petitioner, Mr. Oberoi. Respondent also submitted Petitioner's Exhibit A through H.
No transcript was furnished and neither party submitted Proposed Findings of Fact.
Petitioner, who has fifteen years experience in the restaurant business, was hired in October, 1984, by the Respondent, Jady's Inc., as general manager of its Baxter's restaurant in Sarasota. Since the operation was soon to be opened, Petitioner was advised that his duties included training employees, food service, and anything necessary to insure the proper and orderly operation of the restaurant.
On April 2, 1985, less than a month after the restaurant was opened, Petitioner had his first accident, falling through the ceiling while checking a water heater in the attic, and striking himself on a step ladder. He injured his shoulder and neck in the fall. He did not lose any work time as a result of this incident though he was treated by a doctor and received medical compensation for the injury through Worker's Compensation. Since he continued working, however, he did not receive any payments for loss of wages.
On August 21, 1985, he was again injured while working at the restaurant when he slipped and fell in the kitchen, hitting his head on the floor. He contends that his previous injury was aggravated by this accident and that he also injured his right leg. As a result of the accident, he saw several doctors including an orthopedic specialist. His injury was diagnosed as myositis, and he contends that though his leg has improved, he still has residual injuries which manifest themselves in pain radiating from the hip down the leg, and pain on the right side of his face, and in the jaw and shoulder.
As a result of this second injury, he was awarded Worker's Compensation wage and medical payments and contends he still has some medical problems which tend to come and go.
Petitioner continued to work after August 21, 1985, except for the initial three days he took off at the advice of his physician, and October 7, 1985, which he took off to help his wife with her liquor license. His actions were limited, however, in that he could not lift any substantial weight without pain and dizziness, but he was able to do the administrative work involved in managing the restaurant as well as serving and light food preparation.
Nonetheless, on October 10, 1985, according to Petitioner, Mr. Schoenbaum terminated his employment stating at the time it was because he was injured. Petitioner contends that at the time of discharge, Mr. Schoenbaum threatened him with non- physical destruction of himself and his family through the contacts he had. When Mr. Oberoi asked for a leave of absence to recuperate and then return to work, according to Petitioner, Mr. Schoenbaum declined, stating he was injured and was not wanted at the restaurant.
As a result of his injury, he received $270.00 per week as compensation for lost wages from the period October 7, 1985 through February 12, 1986. This was as opposed to his earnings of $500.00 per week plus benefits when he was discharged which, Mr. Oberoi contends, amounts to $3,000.00 in lost earnings for the period in question. After February 12, 1986, he received no more wage loss benefits.
Petitioner claims that prior to his injury he was in generally good health admitting to a prior history of low back problems which occurred from four to five months before coming to work at Baxter's. He contends that this
was not the injury he received while at work there. While he was working, he claims, he was paying for his own medical insurance but when he spoke with his company after the injury, he was advised that since the injuries took place at work, he should file for worker's compensation benefits instead.
When Petitioner came back to work after the three day time off at the time of the second injury, he discussed with the Schoenbaums certain changes in the menu, and other matters which they wanted changed, but contends that at that time there was no discussion about the overall cleanliness of the restaurant or other discrepancies which they now claim support their termination of his services. He claims there was no discussion of his work performance at any time or any indication they were dissatisfied with his accomplishment of his duties.
Mr. and Mrs. Schoenbaum, who are the main owners of Jady's, Inc., also have an extensive background in the restaurant business and claim this is the first discrimination complaint ever filed against them.
The Schoenbaums decided, at the time they hired Petitioner, to put him in the restaurant business with the understanding he was to get a salary and a 10% equity position if the restaurant made money for fifteen months. The arrangement did not work out. As a result of what the Schoenbaum's consider Petitioner's poor management, the restaurant was losing money at a steady rate. They terminated his employment, reluctantly, because they did not want to run the restaurant themselves. The decision was not made frivolously.
The decision to discharge Petitioner was made after an extended period of observation during which they determined, among other things, that Petitioner's daily cash reports for two months were all incorrect. As of October 30, 1986, the restaurant had lost over $100,000.00 and Mr. Oberoi was discharged because he had done a poor job in its operation, had demonstrated a lack of motivation, and appeared to be uninterested in what was going on. He was totally responsible for the operation and the Schoenbaums attribute the financial loss they sustained directly to his inadequate management and operational skills.
When the Schoenbaums began to realize they would have to terminate Mr. Oberoi's services, they asked each of the opening managers to write down items they found when they came to work which should have been done the night before. There were many. In addition, the bank utilized by the restaurant had reported that charge slips were not being filled out properly. Sales appeared to be going down. Mr. Oberoi often did not come to work on time and closed the restaurant early, and waitresses were given keys to come in and open up without supervision when it was Petitioner's responsibility to be there.
During the three days in August, 1985 that Petitioner was off after his second accident, Mrs. Schoenbaum inspected the facility and found it to be filthy. Food was not stored properly, the refrigerator was dirty, and other defects in operation were clearly obvious. When the Schoenbaums talked with Mr. Oberoi on his return, they relate, he admitted he was not performing properly. They counseled with him, pointing out where he needed to improve and put him on probation. Improvement was not, however, forthcoming.
In light of all the continuing deficiencies in Petitioner's performance and considering the fact that the restaurant was losing money, the Schoenbaums decided the situation could not continue and on October 10, 1985, discharged Mr. Oberoi in the presence of Mr. Hershorin.
Mr. Schoenbaum confirms Mrs. Schoenbaum's testimony. As he observed it, Petitioner's performance in the beginning was acceptable and they tried to work together as a team to overcome the problems inherent in the start up of a restaurant operation. As time went on, things did not get any better but consistent with his management style, Mr. Schoenbaum tried to allow Petitioner to manage the restaurant without over supervision because he felt Petitioner had the background to get the job done.
According to Mr. Schoenbaum, cleanliness, food quality, and the serving of a reasonable product at a reasonable price are paramount considerations in the operation of a restaurant and under Petitioner's management, the restaurant was not meeting those goals. Mr. Schoenbaum began to feel that though Petitioner was trying, he was not succeeding in running a quality operation. From time to time, when Mr. Schoenbaum would come into the restaurant, he would see Petitioner sitting and talking with people rather than managing and supervising. As a result of his concern, Mr. Schoenbaum warned Mr. Oberoi of his dissatisfaction and gave him an ultimatum that the deficiencies must be corrected.
Mr. Hershorin, part owner of the restaurant, also confirms the Schoenbaum's observations. Based on his observations and experience in the restaurant business, it was his opinion that Petitioner's operation was not good. Mrs. Schoenbaum asked him to go in and handle the restaurant for the three days Mr. Oberoi was gone in August, 1985. When he did, he found the food in the refrigerator smelled; there was accumulated residue on the racks; food had spoiled; kitchen equipment was not even superficially clean; there was residue on the floor; and in sum, the general housekeeping was poor.
Mr. Hershorin was present when the Schoenbaums met with Petitioner to discuss his performance and how the operation could be improved. He felt the Schoenbaums wanted the discussions to be of a positive nature to help Petitioner improve. They told him what needed to be done and put him on probation for a period, and it was clear to Mr. Hershorin that Petitioner understood what was being said to him and his status. Unfortunately, nothing changed as a result of this counseling and ultimately the Schoenbaums had to terminate Petitioner.
Petitioner denies any counseling prior to termination or any probationary period being imposed. He claims the Schoenbaums did not discuss his work performance with him at any time, nor did they discuss shortages, lack of proper paper work, erroneous deposits, failure to insure that charge clips were filled out properly, or that he was allegedly leaving equipment on over night. Mr. Oberoi emphatically contends nothing was said about his performance until after he filed his complaint.
Both Mr. Schoenbaum and Mr. Hershorin deny knowing that Petitioner had filed a worker's compensation claim or that his discharge was as a result of his incapacitation subsequent to his injury. They contend, as does Mrs. Schoenbaum, and it is found, that Petitioner's injury had no bearing on his termination and his disability was not the cause thereof.
Petitioner claims he was never considered disabled prior to coming to work at Baxter's and had never filed a Worker's Compensation claim prior to the ones resulting from his injuries there. A Worker's Compensation Order, introduced by Respondents, however, indicates that Petitioner was injured twice before, in 1983 and 1984, and suffered permanent injury. Admitting this on cross examination, Petitioner contends he was totally recovered at the time of the current injuries and that the worker's compensation form admitting to prior
injury was signed at the suggestion of his attorney to facilitate settlement of a collateral lawsuit.
Mr. Oberoi also appears to have placed substantial pressure on Mr. Brockway, another employee at the restaurant, to execute a false affidavit. Mr. Brockway claims Mr. Oberoi contacted him so often, he ultimately signed the affidavit merely to be left alone and during the week prior to the hearing, he was again contacted by Petitioner with another affidavit which would indicate that Petitioner was discharged because of his injury. Mr. Brockway declined to sign it.
Though Petitioner contends now he is unemployed, he is the principal owner of a corporation which operates a restaurant at Sarasota Square Mall. Mr. Oberoi contends that the work there is done by his family and that he has no part in the operation. This is disputed by Mr. Hershorin who claims to have seen Petitioner behind the counter there on at least two occasions and working in the area on at least three other occasions. Further, when Mrs. Schoenbaum called out there prior to hearing, she was advised to talk with Petitioner who was totally in charge of the operation.
Based on the above, Petitioner's credibility is suspect and considering the evidence as a whole, it is found that Petitioner's performance at Baxter's restaurant during the time he was manager there was, for the most part, unsatisfactory. It is that unsatisfactory performance which culminated in his discharge, not the fact that he was injured, filed a worker's compensation claim, or was disabled.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices which involve unlawful discrimination. Section 760.06, Florida Statutes. Respondent is an employer within the meaning of the statute and is subject to the jurisdiction of the Commission.
Under the provisions of Section 760.10(1)(a), it is an unlawful employment practice for an employer:
To discharge ... any individual ... because of such individual's ... handicap
. . . .
In order for Mr. Oberoi to prevail in this action, he must show, prima facie, that the Respondent has discriminated against him by discharging him because of his handicap and he bears the initial burden of establishing discrimination, McDonnell Douglas Corp. v. Greene, 411 U.S. 792, (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). If Petitioner successfully sustains his initial burden, Respondent then must establish a legitimate nondiscriminatory reason for its action to rebut the inference of unlawful discrimination.
Petitioner presented no evidence, aliunde his testimony, that he is disabled. However, assuming, arguendo, he is, the burden then rests with him to establish he was discharged from employment because of that disability or
handicap. He has shown that he was discharged after sustaining the injuries in question and after filing claims for worker's compensation. This raises the inference that his discharge was based on his handicap and shifts to Respondent the burden to establish some other, nondiscriminatory reason for its discharge action. It has clearly done that.
Both Mr. and Mrs. Schoenbaum and Mr. Hershorin, all of whom were familiar with Petitioner's performance as general manager of Baxter's restaurant, unequivocally stated his performance was unsatisfactory and gave specific examples of his failure to properly perform his duties. Cleanliness was below standards; service was not satisfactory; paperwork was consistently in error; and Petitioner's managerial and supervisory actions were unsatisfactory. Each, individually, would have been sufficient grounds for discharge and there is ample evidence that Petitioner was warned of his deficiencies and given reasonable opportunity to correct them. That he failed to do so demonstrates a legitimate, nondiscriminatory reason for discharge and the discharge here was not unlawful discrimination but a legitimate and appropriate personnel action under the circumstances of this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against the Respondent.
RECOMMENDED this 1st day of May, 1989 at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989.
Robert D. Turffs, Esquire 1444 First Street
Sue Schoenbaum Vice-President Jady's Inc.
Donald A. Griffin Executive Director Florida Commission on
