The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2008). At all times material to this case, the Respondent was a restaurant operating at 10801 Starkey Road, Largo, Florida, 33773, and holding food service license number 6215373. On July 21, 2004, Jim Olsen, a trained sanitation and safety inspector employed by the Petitioner, performed a routine inspection of the Respondent. Mr. Olsen identified various food safety regulation violations in a written report that was provided to Mr. Newman at the time of the inspection. Violations that pose an immediate threat to public safety are deemed to be "critical" violations. Mr. Olsen determined that the restaurant manager, Mr. Newman, was not a certified food manager, which is a critical violation of food safety regulations. Mr. Olsen also determined that there was no documentation that the restaurant employees had completed the required food service training, another critical violation of food safety regulations. The inspection report stated that the deadline for correction of the two critical violations was August 23, 2004. On August 23, 2004, Mr. Olsen performed a "callback" inspection at which time he determined that the restaurant continued to lack a certified food manager and that there remained no documentation that the restaurant employees had completed the required food service training. The violations were noted in the Administrative Complaint underlying this proceeding. Other deficiencies identified in the July 21, 2004, inspection report were resolved on a timely basis and are immaterial to this proceeding. At the hearing, Mr. Newman testified that he registered to take the food manager certification course at the earliest opportunity after the July 21, 2004, inspection, but acknowledged there was no certified food manager in the restaurant at the time of either inspection. Mr. Newman also testified that some of the food service employees were trained, but acknowledged that he had no records at the time of either inspection to document that any of the employees had completed the training.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $500 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Herbert H. Newman 10801 Starkey Road, No. 11 Largo, Florida 33777 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not on or about August 28, 1974, at the Respondent's licensed premises, the Respondent continued the sale of alcoholic beverages when the services of full-course meals had been discontinued, in violation of Rule 7A-3.15, F.A.C. Whether or not on or about August 28, 1974, at the Respondent's licensed premises, the Respondent's business was not advertised and held out to the public to be a place where meals are prepared and served, space being provided with adequate kitchen and dining room equipment and having employed such number and kind of employees for preparing, cooking and serving meals for guests; the primary operation of the Respondent's restaurant was not for the preparation, cooking and serving of meals but for the sale of alcoholic beverages, in violation of Rule 7A-3.15d, F.A.C.
Findings Of Fact The Respondent, NAS, INC., d/b/a The Down Beat, is the holder of license number 16-692-SR, Series 4-COP, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license is for a premises located at 623 N.W. 15th Way, Fort Lauderdale, Florida. On August 28, 1974, beverage agents Scozzafava and Fay entered the licensed premises around 10:30 a.m. They identified themselves to the manager, one George Myers, and commenced a routine inspection of the licensed premises. The business was identified by a sign on the outside of the building which stated that the licensed premises sold liquor and food. The licensed premises was divided into two principal areas; one being a lounge and the second being a dining room. The lounge was open and serving alcoholic beverages, together with snack-type food such as potato chips, sausages, peanuts, and "pigsfeet." The witness that testified for the Petitioner could not recall whether other food items were being sold in the lounge area. However, the testimony did show that the manager, George Myers, had to unlock the kitchen and dining room areas. There were no patrons located in the dining room. An inspection of the kitchen revealed a number of paper plates and cups and a few pieces of china ware. In addition, in the kitchen, there was found a number of items of silverware, which while adequate in number, but were tarnished and rusted. In the kitchen area there was no evidence of full-course meals being prepared. Moreover, there were no records of any sales of food on August 28, 1974. The dining room did have sufficient chairs and tables to meet the terms of requirements of the Petitioner. One of the counts in question found in the Notice to Show Cause charges the Respondent with a violation of Rule 7A-3.15, F.A.C. The pertinent provisions of that rule state: "Special licenses, hours of service and minimum requirements. All restaurants holding a special license, in addition to the quota limitation imposed by section 561.20(1), Florida Statutes, must discontinue the sale of alcoholic beverages whenever the service of full-course meals is discontinued. . . . The Division considers the following as the minimum requirements for bona fide full-course meals prepared. Salad Entree Dessert Beverage Bread and Butter." The facts in this case show that at approximately 10:30 a.m., August 28, 1974, alcoholic beverages were being sold in the licensed premises, at a time when the service of full-course meals had been discontinued. Because the license held by the Respondent is a special restaurant's license within the meaning of the rule, the facts establish a violation of the rule provision. The Notice to Show Cause filed against the Respondent also contained a count pertaining to an alleged violation of Rule 7A-3.15d, F.A.C. That provision states: "... The following criteria will be used in determining whether or not the holder of a specified restaurant license is a bona fide restaurant: d. The business is advertised and held out to the public to be a place where meals are prepared and served, space being provided with adequate kitchen and dining room equip- ment and have employed such number and kinds of employees for preparing, cooking and serving meals; the primary operation of such restaurant shall be for the preparation, cooking and serving of meals and not for the sale of alcoholic beverages." The facts establish that the business was advertised and held out to the public to be a place where meals are prepared and served. The lack of permanent dishware and the poor condition of the silverware establish noncompliance with the requirement of having adequate kitchen and dining room equipment. In addition, on the date in question, it was revealed that there was a failure to comply with the requirement of having employees for preparing, cooking and serving meals for guests. Finally, on the date and time in question, it was shown that the primary purpose of the restaurant was for the sale of alcoholic beverages and not for the preparation, cooking and serving of meals. Therefore, the Respondent had failed to meet one of the criteria necessary to be a bona fide restaurant within the meaning of the laws and rules of the Petitioner. As an aspect of the hearing, the undersigned takes official notice of Rule 7A-3.15, F.A.C.
Recommendation Upon consideration of the violations established in this cause, it is recommended that the Respondent's license number 16-692-SR, Series 4-COP, be suspended for a period of thirty (30) days. DONE AND ENTERED this 14th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32304 James A. Brown, Esquire Suite 600-A Courthouse Square Building 200 S. E. 6th Street Ft. Lauderdale, Florida 33301
The Issue The issue for consideration in this case is whether the School Board should cancel the Respondent's Professional Service Contract and terminate his position due to low enrollment and reduction in his program.
Findings Of Fact At all times pertinent to the issue herein, the Pinellas County School Board, (Board), operated the public instructional program in Pinellas County, including preschool, elementary and secondary education, and adult technical and vocational training programs. The Respondent, Frederick Usher, was a teacher at PTEC, St. Petersburg, instructing in the organization's culinary arts program. Respondent holds a professional services contract with the Board for his services as an instructor. At PTEC, St. Petersburg, the culinary arts program currently consists of three teachers, including the Respondent. The program offers three basic areas of instruction. The first is basic cooking. The second is baking, and the third, where Respondent teaches, is advanced chef. In this area, as well as all other subject matters taught at PTEC, St. Petersburg, a desired pupil/teacher ratio has been established. For culinary arts this ratio is 15 students to 1 teacher. At the present time, there are 16 adults and 14 part- time high school students enrolled in PTEC, St. Petersburg's culinary arts program. Twelve adults are full-time students, (6 hours per day). The remaining 4 adults and the 14 school students are all part time. Even if all adults, and the high school students were full-time, the total of 30 students would still be well below the desired 15 - 1 ratio. The culinary arts program has been in existence at PTEC, St. Petersburg for at least three years, Over that period, school records indicate 211 adult enrollments and 28 graduates. The student enrollment in the culinary arts program, however, has been steadily declining even though numerous efforts have been made to increase the enrollment. Among these are public relations efforts by the Board, and encouragement to instructors to recruit students for the program. This is a recognized and accepted practice in vocational adult education. Other efforts have been made to try to keep all three teachers on board, including the reduction of the teacher contract term from 235 days per year to 196 days per year. This was an effort to reduce costs so that all three current instructors could be retained. Respondent is the most junior of the three instructors in the culinary arts program at PTEC, St Petersburg. Over a year ago, members of the Board staff spoke with all teachers about the situation, and in an effort to expand the program, contacted the Director of PTEC, Clearwater to see if a culinary arts program could be established in the Clearwater prison, within the area served by PTEC, Clearwater. It was anticipated that if this program could be started, an instructor from PTEC, St. Petersburg could fill the position. When the matter was presented to the Respondent, though he was not particularly interested in it, he went to the prison on two separate occasions. He examined the facility and found it to be extremely dirty and in poor condition, and he also concluded that it would take a significant amount of money and effort to provide the equipment necessary to operate an effective program. To counter those objections, the Board produced evidence that the prison authorities had agreed to clean up and refurbish the kitchen area, and the Board agreed to provide whatever equipment was necessary to allow the instructor to operate an effective program. This would include stoves, refrigerators, cutting tables, sinks and the like. The state of repair of the facility was not the Respondent's only objection, however. Granted there were, and are, other instructional programs at the prison, the majority of them are conducted outside the secure area of the prison proper in separate buildings. In contrast, the kitchen is within the prison proper, and access thereto requires passage through three locked areas. Respondent also discussed the situation with several of the other instructors at the prison who, while they might have been satisfied with the conditions under which they taught, indicated to Respondent that the conditions he would face inside the prison would not be pleasant. On the basis of this information, and based on his genuine fear for his safety should he accept a position inside the prison walls, Respondent declined the transfer. According to Dr. Laux, the Director of PTEC, St. Petersburg, the culinary arts program at that institution has been running in the red for the past five years, and it was determined to be necessary to close down the least active of the courses. This happened to the advanced chef program taught by the Respondent. Another factor which Respondent contends impacts on the need to close down the program is that the Board agreed to the opening of a MacDonald's restaurant in the PTEC, St. Petersburg facility where the culinary arts curriculum was carried out. According to Respondent, this resulted in a decline in the number of students interested in taking advanced chef courses. Dr. Laux admits that when the decision was made to terminate the Respondent's employment, he was not offered any retraining so that he could remain in a teaching position within the County. Respondent is assumed qualified to teach all of the three culinary arts courses, but Dr. Laux does not know whether the other two instructors are qualified to teach the advanced chef course. In any event, the advanced chef program is to be closed for lack of interest. The desired student/teacher ratio of 15 - 1 discussed previously is not a hard and fast rule. As of the last week in May, 1995, several other areas at PTEC, St. Petersburg fell below the desired rate. For example, the air conditioning and refrigeration course is at a ratio of 8.9 students to 1 teacher. The auto body repair program is at 14 - 1; auto mechanical repair, 10.2 - 1; auto painting, 11.8 - 1; precision machinery, 7.6 - 1; printing, 11.6 - 1; and optical technician, 14.6 - 1. As of the same period, the ratio in the culinary arts program, including part-time students, was 11.7 - 1. Before making the decision to close down the advanced chef program because of a lack of interest, Board officials had to take a look at the need for the program in the community. This is done in the case of every potential closure. The State of Florida requires a 70 percent placement rate for graduates of the vocational/technical schools in each program. Officials also look at the production rate of each program, and culinary arts was below the state standard in that area. A further area for consideration is the completion rate, and, again, 29 graduates out of an enrollment of over 200 students in the culinary arts program is not an acceptable record. The Board has closed other programs in the past because of low enrollment. Included in these are fashion design, hotel/motel management, drapery and interior design, and in several cases, the incumbent instructor was placed in another job within the school system. In many cases, however, the displaced instructor was not given alternate placement and, quite often, retired. The Board admits it could continue to run the program at a loss with three teachers, including the Respondent. However, after a three year analysis, the Board has determined to reduce this program. Various programs have varying funding criteria. Some are high value programs, such as the air conditioning and carpentry programs, and these get a higher funding to make up for lower enrollment. The lack of interest in culinary arts, in a time of limited program funding, requires a serious and critical appraisal of the need for the program. Here, the Board determined that the advanced chef portion of the culinary arts program could and should be curtailed because of a lack of enrollment. This decision was not taken lightly. On February 22, 1995, Dr. Ross, the Board's Assistant Superintendent for Career, Technical and Adult Education, advised Dr. Graeff, the Board's Director of Instructional Personnel, that there was a need to reduce the culinary arts program at PTEC, St. Petersburg by one teacher due to low enrollment. When he received this information, Dr. Graeff first checked those who were in the program and looked at the seniority and certification information. He then looked to see if there was any one in the culinary arts program, county-wide, under an annual contract and there were none. Therefore, since the Respondent was the teacher with the least seniority at PTEC, St. Petersburg, he was identified as the one whose contract was to be terminated. Admittedly, there were more junior teachers at other schools under Professional Services Contracts, but it is the Board's unwritten policy not to allow bumping of more junior personnel at other schools, except for teachers holding annual contracts. This policy was implemented to stop the chain effect of bumping. It also, in effect, emasculates the seniority system. The contract between the Board and the Union requires the Union be advised of any situation requiring a reduction in force. In this case, the Board claims it first contacted the union and advised of the situation by telephone and later on engaged in a face to face meeting with Union representatives at which potential placements for the Respondent were discussed. In that regard, it appears that at that time, there were no annual contract teachers who could be bumped, and there were no other teaching positions in the county for which Respondent was qualified. The parties also discussed possible support service jobs for Respondent, and the Board representative suggested that the union representative contact the pertinent School Board official to inquire as to what jobs were available. The Respondent's teaching certificate is based on his experience, not his education. The rules of the State Board of Education require that a teacher in vocational/technical courses have at least 6 years experience to be certified. Though certified in the field of culinary arts, the Respondent does not have the requisite work or educational background in another field to support certification in another field. To be sure, Respondent could go back to school and get his degree, and be certified that way, and the Board has, in the past, granted instructors in a position similar to that of the Respondent, up to 2 years paid sabbatical to go back to school. However, the issue here is not qualification or certification, but a lack of enrollment. The Respondent is qualified for his job. The required students are not there, however. Respondent claims he has in excess of 135 credit hours in undergraduate courses and approximately 45 hours in graduate work credit. Notwithstanding this, the Respondent has neither a Bachelor's degree nor a Master's degree. An evaluation of his academic credentials, conducted by Dr. Graeff, indicated that though Respondent has an Associate degree, many of the courses which went toward the granting of that degree would not apply to a Bachelor's degree in education. As Dr. Graeff saw it, 4 courses which Respondent took would be acceptable and 8 others might be acceptable, but the remaining courses probably would not be acceptable toward a Bachelor's degree. Those courses in food service would not go toward a teaching degree. On the other hand, those in English, literature and music would. Those in math and accounting, as well as other business subjects, might. In substance Dr. Graeff feels that Respondent would have no more than 30 acceptable credits toward a 120 credit requirement for a Bachelor's degree in an educational field. Many other courses, however, might be creditable toward a degree in another field. In that regard, a graduate holding a degree in a non-educational field, may nonetheless teach in the area of specialty, but would have to take the educational courses required for a degree in education within two years of being hired. Respondent had been employed by the Pinellas County School Board for 13 years, all in the culinary arts field. He has taught all the courses offered on one occasion or another. During his 13 years, however, only he taught the advanced chef segment. After Respondent looked into the possibility of teaching at the prison as an alternative to his current position, and declined to accept that offer, he was called to a meeting with Dr. Laux at which he got the impression that the Board officials were very disappointed he would not take that position. Nonetheless, he was not threatened, and though he received sympathy from Board officials, he has been offered no comparable position. Any position he might have been offered, such as working in a school cafeteria, would be compensated with less pay and with less prestige. In the 21 year recollection of Mr. Moore, the Union Executive Director, only two cases come to mind where certified teachers were laid off, not for cause. This took place in the 1980's. One of those individuals taught welding and the other taught air conditioning repair. Both were at the lowest seniority level. In 1990, because of a potential budget deficit, there was some consideration of a lay off again, but as a result of the joint efforts of the Board and the Union, this was avoided. In the past, according to Mr. Moore, teachers identified for layoff have been retrained to allow them to continue employment. Some were given summer work to help pay for their certification courses. In one case, a vocational teacher was allowed to go to school for two years under a paid sabbatical program so that he could be retrained into a field useful in the K - 12 environment. As was noted by Dr. Graeff, the union contract calls for the Board to consult with the Union to see how a teacher identified for reduction in force can be utilized within the system as an alternative. Notwithstanding that representative's contention that this was done, according to Mr. Moore, it was not done. In light of all the evidence, it is found that a conference was held at which Respondent's case, among other matters, was discussed. The Board official's suggestion that the union representative seek out other jobs for the Respondent is indication of the lack of cooperative or sympathetic attitude by Board personnel, however, and is not acceptable. Consistent with the issue of additional education, a teacher can be allowed to teach outside his or her field of certification under a professional services contract, provided that the teacher takes 6 hours per year of course work leading toward certification in the field in which the teacher is teaching. The Respondent could do this, but this option was not offered to him. In that regard, Mr. Moore admits he does not know in what area the Respondent could teach under this type of program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frederick Usher's employment with the Pinellas County Schools, not be terminated due to low enrollment, and that if reduction in force is necessary, alternative approaches be genuinely considered, such as the use of seniority, retraining, or placement out of field. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 14. Accepted and incorporated herein. & 16. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a Conclusion of Law. Irrelevant to any issue of fact or law. FOR THE RESPONDENT: 1. - 5. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated herein. 13. - 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. - 21. Accepted. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools 301 Fourth Street, S.W. P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 E. 7th Avenue, Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 Dr. J. Howard Hinesley Superintendent Pinellas county Schools 301 E. Fourth Street, S.W. P.O. Box 2942 Largo, Florida 35649-2942
Findings Of Fact TSSO, Inc., owned an Applebee's Neighborhood Bar & Grill franchise on Bayou Boulevard in Pensacola, Florida. The franchise was acquired by Concord Hospitality, Inc., on December 3, 2001. Applebee restaurants are divided into two areas. There is the front of the restaurant where the bar and dining tables are located, and the back of the restaurant where the kitchen is located. The front of the restaurant is staffed by bartenders, hostesses, and servers who are paid a reduced hourly rate and who depend on tips as part of their compensation. The kitchen is mainly staffed by a midline cook, who basically runs the cooking line; a broil cook, who works the broil area; a fry cook, who works the fry area; prep cooks, who prepare the food on a daily basis; and an expediter, who sets the plates to go out in the front of the restaurant. In addition to their specific duties, the kitchen staff have additional duties. These include cleaning the parking lot, cleaning the freezer, and washing dishes. All kitchen staff share in the additional duties. Unlike the staff in the front of the restaurant, the kitchen staff is paid a regular hourly rate. The kitchen staff is supervised by a kitchen manager. The kitchen manager was responsible for preparing a daily prep list, placing food orders, delegating tasks to kitchen staff, and ensuring that the kitchen employees were doing their tasks. The Petitioner worked as a prep cook in the kitchen from August 13, 1996 to September 14, 2002. During her employment, the Petitioner received at least six raises which included a fifty cent raise on July 17, 1998; a twenty-five cent raise on February 12, 1999; a fifty cent raise on August 27, 1999; a fifty cent raise on December 31, 1999; a fifty cent raise on December 15, 2000; and a twenty-five cent raise on March 9, 2001. The Petitioner, who is black, was one of the highest paid employees out of the fifty employees who worked in the kitchen in 2001. There were five employees who worked in the kitchen that were paid more than the Petitioner. Two of the higher paid employees were black. There were twenty-three white employees in the kitchen who were paid less than the Petitioner. Employees could become certified trainers. Trainers provide training and guidance to new employees. In order to become a certified trainer, the employee has to go through a training process. Employees who become trainers have to be re- certified on an annual basis. Employees who work in the front of the house are offered a dollar an hour raise as an incentive to become a trainer, to make up for the loss in tips they incur when training new employees. Kitchen employees do not receive a dollar an hour increase as an incentive to become a trainer since they are higher paid employees. Kitchen employees who become trainers receive superior schedules, more hours, and the opportunity to advance with the company. Petitioner, JoAnn Merlin (a white female) and Robert Roberts (a white male) were all kitchen employees who became certified trainers. Merlin and Roberts, like the Petitioner, did not receive a dollar an hour increase when they became certified trainers. After receiving her training certificate on October 23, 1999, the Petitioner claims she trained new employees in the prep area. However, there was very little turnover with prep cooks while the Petitioner was employed. Moreover, the Petitioner has no idea how much training she provided to other employees. The Petitioner has no idea how much back pay she claims she is owed. The Petitioner claims that she was assigned duties that white employees were not assigned to do. In particular, she claims that she had to clean the parking lot and the freezer. However, the Petitioner admitted in her testimony that white employees cleaned the parking lot and freezer. Pat Brown, Merlin and Roberts (all white employees) testified that they cleaned the parking lots. Roberts testified that he tried to rotate the responsibility of cleaning the parking lot each morning. Roberts was the one who primarily cleaned the freezer. On some occasions he had whoever was not busy in the kitchen clean the freezer. For example, Mike Valencort, a white employee who worked as a line cook, cleaned the freezer in addition to Roberts. No one was singled out, because of their race, to clean either the parking lot or freezer. The Petitioner cleaned the parking lot maybe five to six times during her employment. The Petitioner only cleaned the freezer two to three times in a three-month span prior to 2000. As kitchen manager, Mr. Roberts was responsible for preparing a daily prep list. The prep list needed to be prepared before the kitchen employees came to work. Roberts would delegate the responsibility to an experienced line cook, normally Merlin, on Mondays when he was occupied with completing inventory. He delegated to Merlin because she had more experience, knew what menu items were selling, and was trained on all the stations in the kitchen. The Petitioner was not qualified to do the prep list. She had only prep cook experience and did not know what menu items were selling. CONCLUSIONS_OF_LAW The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.569, Florida Statutes. The Petitioner alleges that the Respondent treated her differently than white employees because of her race, with respect to trainer's pay and job assignments, and that the Respondent's actions violated Chapter 760, Florida Statutes, and Title VII. Chapter 760 is patterned after Title VII and is to be construed using federal case law interpreting Title VII. Florida State University v. Sondel, 658 So. 2d 923 (Fla. 1st DCA 1996); Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); and Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991). The Petitioner has the burden of establishing that the Respondent's actions were motivated by a discriminatory purpose, either through direct evidence or circumstantial evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993). The Petitioner has not presented any direct evidence of discrimination. Accordingly, the Petitioner's claim is analyzed using the "McDonnell framework." McDonnell-Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2nd 668. Pursuant to McDonnell, Petitioner has the burden of establishing a prima facie case of race discrimination. If the prima facie case is demonstrated, then the Respondent must articulate a legitimate, non-discriminatory reason for its actions. Once the Respondent establishes a legitimate, non-discriminatory reason, then the Petitioner must show that the proffered reason is pretextual. The ultimate burden of persuasion remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, supra.; St. Mary's Honor Center v. Hicks, supra. In order to establish a prima facie case, the Petitioner must prove by a preponderance of the evidence that: (1) she belongs to a protected class; (2) she was subjected to an adverse employment action; (3) the Respondent treated similarly situated employees outside the protected class more favorably; and (4) she was qualified to do the job. Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1310 (11th Cir. 1998). The Petitioner has failed to establish a prima facie case with respect to the trainer's pay because she has not shown she was subject to an adverse employment action. The evidence clearly demonstrates that kitchen employees did not receive a dollar an hour pay increase for becoming a trainer. It is also undisputed that white kitchen employees who became trainers did not receive trainer's pay, as evidenced by Merlin's and Roberts' testimony. The Petitioner has also failed to establish a prima facie case with respect to trainer's pay because she has not shown similarly situated white employees were treated differently. As noted above, white kitchen employees who became trainers did not receive a pay increase. Employees who worked in front of the restaurant were not similarly situated because they, unlike kitchen employees, were paid reduced hourly rates and depended on tips as part of their compensation. Even if the Petitioner had established a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for not giving the Petitioner a pay increase for becoming a trainer. More specifically, trainers who worked in the front of the restaurant were given a dollar increase to compensate them for tips they lost as the result of time spent training new employees. Furthermore, the kitchen employees were given other incentives for becoming a trainer, such as, better shifts, more hours, and more opportunity for promotion, The Petitioner has failed to come forward with any evidence showing that Respondent's articulated reason is pretextual. The Petitioner has likewise failed to establish a prima facie case of discrimination with respect to job assignments. More specifically, the Petitioner admits that white employees had to clean the parking lot and freezer. It is also undisputed that white employees cleaned the parking lot and the freezer more often than the Petitioner. The Petitioner cleaned the parking lot five to six times over a six year period of employment. The Petitioner cleaned the freezer two to three times in a three-month span prior to 2000. Assuming the Petitioner could establish a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for how it assigned these responsibilities. Cleaning the parking lot was done on a rotational basis. Employees who were not busy were selected to clean the freezer on the occasions when Roberts did not do it himself. The Petitioner has failed to come forward with any evidence showing that the Respondent's articulated reasons are pretextual. The Petitioner's claim with respect to the freezer also fails because those incidents occurred more than 365 days prior to filing her charge of discrimination, Finally, the Petitioner has failed to establish a prima facie case of discrimination with respect to preparing the prep list. The evidence shows that the Petitioner was not qualified to do the prep list because of her limited experience. Assuming the Petitioner could establish a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for selecting Merlin to do the prep list. Merlin was selected to do the prep list because she had more and broader experience than the Petitioner. More specifically, the Petitioner's experience was limited to the prep area while Merlin was trained on all stations in the kitchen and knew what items were selling. The Petitioner has failed to come forward with any evidence showing that the Respondent's articulated reasons are pretextual. Finally, even if the Petitioner had established a claim of discrimination, she failed to establish her claim for damages. The Petitioner did not present any evidence as to the amount of damages and, when asked on cross-examination, the Petitioner had no idea as to the amount of any back pay.
Recommendation Having considered the foregoing Findings of Fact, 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 a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003. COPIES FURNISHED: Rosa Foster 3260 Keating Road Pensacola, Florida 32504 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
