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
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.
Recommendation 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 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: Robert D. Turffs, Esquire 1444 First Street Sarasota, Florida 34236 Sue Schoenbaum Vice-President Jady's Inc. 4201 Deepwater Lane Tampa, Florida 33615 Donald A. Griffin Executive Director Florida Commission on Human Relations Bldg. F., Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel FCHR Bldg. F., Suite 240 325 John Knox Rd. Tallahassee, Florida 32399-1925 Margaret Agerton Clerk FCHR Bldg. F., Suite 140 325 John Knox Rd. Tallahassee, Florida 32399-1925
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 issues are as follows: (a) whether Petitioner's April 27, 1998, Charge of Discrimination states a cognizable claim under Sections 760.01 - 760.11 and 509.092, Florida Statutes; and if so (b) whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age, race, and/or gender.
Findings Of Fact Petitioner is a black female who is over 60 years old. According to her 1992 résumé, she earned a general education diploma at Haney Vocational Technical Center, in Bay County, Florida in 1981. Petitioner's résumé states that between 1981 and 1984, she completed thirty semester hours in hotel/motel restaurant management at Gulf Coast Community College, in Bay County, Florida. At the hearing, Petitioner testified that she was certified as a working chef by the American Culinary Federation with a degree from the University of Michigan in hospitality management. However, Petitioner did not refer to the American Culinary Federation or list a graduate degree on the résumé that she furnished to Respondent in 1992. Petitioner's testimony is not credible. Petitioner's 1992 résumé includes the following professional training and certifications: (a) 1969, United States Air Force sanitation certificate; (b) 1986, State of Florida sanitation certificate; (c) 1981, National Cooking Institute, Denver, Colorado, for 360 hours in a culinary arts skills program, receiving an outstanding performance award for contribution in support of United States Air Force food service, catering, and special functions; (d) 1981, American Hotel/Motel Association certification for a course in introduction to hospitality industry and food and beverage control; (e) 1987, certificate of achievement for the United States Air Force Culinary Arts Upgrade Training for Managers and Supervisors, a 260-hour workshop at Randolph Air Force Base in Texas; and (f) 1988, a nutrition certificate for a 450-hour workshop at the Culinary Arts School in St. Augustine, Florida. Petitioner's 1992 resume includes the following work experience: (a) 1969-1975, service supervisor at a local restaurant in Panama City, Florida; (b) 1969-1985, full-time party chef and kitchen manager at Tyndall Air Force Base Non- Commissioned Officer's Club; (c) 1982-1992, part-time kitchen manager and food production specialist at Haney Vocational Technical Center, in Bay County, Florida, including working as an assistant instructor; and (d) 1985-1992, full-time kitchen/dining room manager and executive chef at Tyndall Air Force Base Officer's Club. Respondent is a hospitality company that provides upscale accommodation and fine cuisine to its guests. Respondent gives its employees a copy of its comprehensive employee handbook when they are hired. New employees are required to sign an acknowledgement that they agree to read and abide by the rules and regulations contained therein. Petitioner signed the acknowledgment that she had received and would abide by the rules set forth in the employee handbook on May 12, 1992. The employee handbook contains a complaint procedure. Employees are encouraged to report any job-related problems, including discrimination or harassment, to their supervisor and up the chain of command if the supervisor is part of the problem. The employee handbook sets forth rules of conduct and a three-step progressive disciplinary procedure that applies except in certain circumstances. The first time an employee violates a rule, the employee receives an oral reprimand. The second rule violation results in a written final warning regarding the behavior. Respondent terminates an employee for a third violation of a rule. The employee handbook requires employees to call their supervisor when they find it necessary to be absent from work due to illness, or other emergencies. This call to the supervisor must be made no later than one hour before a scheduled time to start work. Violation of this rule may result in immediate termination of employment without resort to the three-step disciplinary procedure. In 1996, Respondent amended its personnel procedures. The new policy regarding sick and personal leave was attached to employees' paychecks. The new policy required employees to request non-emergency personal or sick leave in writing ten days in advance. The request form was to be submitted directly to the employees' supervisors. Respondent knew about this policy and complied with it when she had surgery. Respondent hired Petitioner as a cook in the banquet kitchen effective May 14, 1992. On June 2, 1992, Respondent transferred Petitioner to the kitchen in Respondent's Sunset Bay facility. On April 1, 1993, Respondent transferred Petitioner back to the banquet kitchen as lead pantry cook. She usually worked the breakfast shift. Her principal duties involved preparation of cold foods. Chris Chirum was Respondent's Executive Chef of the Resort in April 1997 and at all times material here. Michael Kulow, Respondent's Director of Food and Beverage, was Chef Chirum's supervisor. Chef Chirum supervised an Executive Sous Chef, a Banquet Chef also known as Chef Tourant, and various restaurant chefs/managers and/or cooks, including Petitioner. Chef Chirum encouraged all of his subordinates to adhere strictly to Respondent's attendance policies. He urged them to call him directly at work or home when they would not be able to make a scheduled shift. This enabled Chef Chirum to ensure that the kitchens were always properly staffed. When a position of employment becomes available, Respondent's Human Resources Department publishes the vacancy in a company newsletter. Respondent's policy is to hire qualified applicants from within the organization if possible. If Respondent does not receive an application from a qualified in- house applicant, Respondent advertises job vacancies in newspapers and accepts outside applications. The company newsletter is available in the personnel office for walk-in applicants to review. Once the Human Resources Department receives an application, it is sent to the appropriate department head for further consideration. In April 1997, Wayne Edwards, applied for a vacant position as Chef Tourant.1 Mr. Edwards had not previously been employed by Respondent, but he had excellent credentials as a Chef. Mr. Edwards graduated from the University of Kansas with a graduate degree in business. He also completed a three-year degree program in hospitality management at a community college in Kansas. He was certified as a working chef by the American Culinary Federation, receiving Chapter Chef of the Year in Huntsville, Alabama. Mr. Edward's work experience includes the following: (a) 1990-1991, food and beverage director for a Hilton hotel; (b) 1992-1993, food and beverage director for a Marriott hotel; (c) 1994, food and beverage supervision for banquets and culinary a la carte at a Holiday Inn hotel; and 1995-1997, owner/operator of a sports bar. Petitioner discussed her interest in applying for the position of Chef Tourant with Michael Kulow in April 1997. He did not encourage her to apply for the job but told her to file an application. Petitioner went to the personnel office and picked up an application. Her testimony that she completed the application and submitted it to Respondent's Human Resources Department is not persuasive. The record does not contain a copy of Petitioner's application for the position of Chef Tourant. Michael Kulow, in conjunction with Chef Chirum, usually made the hiring decisions for kitchen employment positions. In this case, Michael Kulow decided to hire Wayne Edwards as Chef Tourant. Chef Chirum agreed with Michael Kulow that Mr. Edwards was more than qualified for the position of Chef Tourant. Chef Chirum was not aware that Petitioner was interested in the job. Chef Chirum provided persuasive testimony at the hearing that Petitioner did not have the educational background or work experience that Mr. Edwards possessed. Competent evidence indicates that Respondent would have hired Mr. Edwards as Chef Tourant even if Petitioner had followed the correct procedure and submitted an application for the position. On July 21, 1997, Petitioner filed a complaint with FCHR alleging age and race discrimination based on Respondent's failure to promote her to Chef Tourant. FCHR did not provide Respondent with a notice of this complaint until May 1998. On August 8, 1997, Chef Chirum gave Petitioner a verbal warning for being absent during a scheduled shift. He explained to her the importance of following the policies set out in the employee handbook relative to attendance. He explained the disciplinary procedure. Petitioner signed the Employee Communication Notice but indicated that she did not agree with it. On November 24, 1997, Chef Chirum gave Petitioner a final written warning for an unexcused absence. Petitioner was scheduled to work the morning shift and never showed up. Petitioner claimed that she had requested the day off. However, Petitioner had not submitted the proper paperwork in a timely manner for requesting non-emergency personal/sick leave. Petitioner was or should have been aware that any further violation of the attendance policy might result in termination of her employment. On December 13, 1997, Chef Chirum set up a television in the banquet kitchen. He wanted to watch the score of a football game with the sound muted on the set. Petitioner became upset when she realized that Chef Chirum had the television in the kitchen because she had not been allowed to have a radio on while she worked. Chef Chirum attempted to explain that, unlike the radio, the muted television did not interrupt essential communications in the kitchen. Petitioner continued to argue, raising her voice. Chef Chirum spoke to Petitioner in his office. He told her to take the rest of the day off so she could calm down. Before she clocked out, Petitioner asked Chef Chirum if she should work the next day. He responded that she should because she was scheduled. On the evening of December 13, 1997, Petitioner called Jo Ann Thigpen, one of the banquet servers, at work. Petitioner told Ms. Thigpen that she would not be coming in to work the next day because she had experienced an anxiety attack. Petitioner asked Ms. Thigpen to relay the message to her boss. Ms. Thigpen gave Executive Sous Chef, Chris Anglin, Petitioner's message that night. Petitioner should have contacted her supervisor directly instead of delivering the message through another employee. December 13, 1997, was Petitioner's last day at work. December 14, 1997, was a Sunday. Petitioner usually had the day off on Sunday. However, she had volunteered to work on the 14th and had been scheduled to do so. On the morning of December 14, 1997, Petitioner called the banquet kitchen and talked to Carol Ann Ernest, who worked next to Petitioner in the banquet kitchen. Petitioner asked Ms. Ernest to tell Chef Chirum that she would not be in to work that day. Ms. Ernest delivered the message a few minutes later when Chef Chirum called the kitchen. Petitioner should have called Chef Chirum at home or left a message on his voice mail instead of giving the message to a co-worker. Petitioner did not show up for scheduled work or call Chef Chirum on Monday, December 15, 1997. Petitioner was not scheduled to work on Tuesday, December 16, 1997. She did not show up for scheduled work or call Chef Chirum on Wednesday, December 17, 1997. On December 17, 1997, Petitioner went in to Respondent's Human Resources Department to talk with Sylvia Hanks, Respondent's Vice President of Human Resources. Petitioner told Ms. Hanks why she became upset and left work on December 13, 1997. Petitioner explained to Ms. Hanks that she was under a lot of stress in her work environment. Petitioner claimed that Wayne Edwards and other employees in positions of authority had been rude and threatening to her. At the time of the meeting on December 17, 1997, Ms. Hanks was not aware that Petitioner had filed a race or age discrimination claim on July 21, 1997.2 Petitioner did not raise the issue directly with Ms. Hanks. Instead, Petitioner requested a three to four-week leave of absence. Ms. Hanks gave Petitioner a leave of absence form and encouraged her to complete the form and return it to the Human Resource Department. Petitioner never returned the completed form. After meeting with Petitioner on December 17, 1997, Ms. Hanks investigated Petitioner's allegations regarding the incident on December 13, 1997, and her allegations of unfair treatment. Ms. Hanks was unable to verify Petitioner's allegations. Ms. Hanks did not attempt to contact Petitioner after completing her investigation because she agreed with Chef Chirum's decision to terminate Petitioner for violation of Respondent's attendance policy. Sometime during the workweek beginning December 15, 1997, Petitioner's attorney contacted Ms. Hanks. The attorney informed Ms. Hanks that she knew Respondent would do the right thing for Petitioner. The attorney never mentioned Petitioner's pending claim of age or race discrimination against Respondent or that Petitioner had filed a Charge of Discrimination with FCHR. Respondent subsequently terminated Petitioner's employment, effective December 13, 1997, for failure to comply with the attendance policy. When Chef Chirum made the decision to fire Petitioner, he was not aware of her pending claim of age or race discrimination. There is no persuasive evidence that Petitioner's termination was in retaliation for filing a discrimination claim with FCHR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination with prejudice. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of January, 2001.
