02-003005 Rosa Foster vs. Applebee`s Neighborhood Bar &Amp; Grill Status: Closed Recommended Order on Tuesday, July 15, 2003.

Summary: Petitioner failed to show prima facie case of race discrimination. Disparate treatment not shown in terms of extra duties and pay between Petitioner and white employers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSA FOSTER, )

)

Petitioner, )

)

vs. )

) Case No. 02 - 3005

APPLEBEE'S NEIGHBORHOOD )

BAR & GRILL, )

)

Respondent. )

_ )

RECOMMENDED ORDER

Pursuant to notice, this cause came on for Administrative

Hearing before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Pensacola, Florida, on March 6, 2003. The appearances were as

follows:

APPEARANCES

For Petitioner: Rosa Foster, pro se

3260 Keating Road

Pensacola, Florida 32504

For Respondent: Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Flor ida 32596

STATEMENT 0F THE ISSUE

The issues to be resolved in this proceeding concern

whether the Petitioner was disparately treated because of her

race, with respect to "trainer's pay" and work assignments.

PRELIMINARY STATEMENT

Respondent owns sev eral Applebee's Neighborhood Bar and

Grills. Petitioner was employed as a "prep cook" at one of the

restaurants in Pensacola, Florida from August 13, 1996 to

September 14, 2002. On October 20, 2001, Petitioner filed a

charge of race discrimination with t he Florida Commission on

Human Relations ("Commission") and ultimately filed a Petition

for Relief on July 30, 2002, concerning her claim of disparate

treatment.

The cause came on for hearing as noticed at which time the

Petitioner presented her own testi mony. The Petitioner did not

call any other witnesses nor did she submit any exhibits. The

Respondent called three witnesses: Pat Brown, JoAnn Merlin, and

Robert Roberts. The Respondent submitted into evidence exhibits

one through three without objecti on.

Upon conclusion of the proceedings, the parties elected to

transcribe the proceedings and to avail themselves of the

opportunity to file Proposed Recommended Orders. The Respondent

filed a Proposed Recommended Order which has been considered in

the r endition of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. Appl ebee 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.

3. The front of the restaurant is staffed by bartenders,

hostesse s, and servers who are paid a reduced hourly rate and

who depend on tips as part of their compensation.

4. 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 pa rking lot,

cleaning the freezer, and washing dishes. All kitchen staff

share in the additional duties.

5. Unlike the staff in the front of the restaurant, the

kitchen staff is paid a regular hourly rate.

6. 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.

7. The Petitioner worked as a prep cook in the kitchen

from August 13, 1996 to September 14, 2002.

8. 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.

9. 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.

10. Employe es could become certified trainersainers

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 ba sis.

11. 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.

12. 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.

13. Petitioner, JoAnn Merlin (a white femal e) 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.

14. After receiving her training certi ficate 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

provid ed to other employees.

15. The Petitioner has no idea how much back pay she

claims she is owed.

16. 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 pa rking lot and the

freezer. However, the Petitioner admitted in her testimony that

white employees cleaned the parking lot and freezer.

17. Pat Brown, Merlin and Roberts (all white employees)

testified that they cleaned the parking lots. Roberts testifi ed

that he tried to rotate the responsibility of cleaning the

parking lot each morning.

18. 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 Valenco rt, a white

employee who worked as a line cook, cleaned the freezer in

addition to Roberts.

19. No one was singled out, because of their race, to

clean either the parking lot or freezer.

20. The Petitioner cleaned the parking lot maybe five to

six time s during her employment. The Petitioner only cleaned

the freezer two to three times in a three - month span prior to

2000.

21. 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 ite ms were selling, and was trained

on all the stations in the kitchen.

22. 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

23. The Division of Admi nistrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.57(1) and 120.569, Florida Statutes.

24. The Petitioner alleges that the Respondent treated her

differently than white employees because of he r 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 V II.

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).

25. The Petiti oner 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).

26. 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 t he 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 .

27. In order to establish a prima facie case, the

Petitioner must prove by a preponderance of the evi dence 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).

28. 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 eviden ce

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.

29. 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

train ers 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.

30. Even if the Pe titioner 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 oppo rtunity for

promotion,

31. The Petitioner has failed to come forward with any

evidence showing that Respondent's articulated reason is

pretextual.

32. 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

cl eaned 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.

33. Assuming the Petitioner could establish a prima facie

case, the Respondent has a rticulated 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 d o it

himself.

34. The Petitioner has failed to come forward with any

evidence showing that the Respondent's articulated reasons are

pretextual.

35. 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,

36. 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.

37. 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 p rep 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.

38. The Petit ioner has failed to come forward with any

evidence showing that the Respondent's articulated reasons are

pretextual.

39. Finally, even if the Petitioner had established a

claim of discrimination, she failed to establish her claim for

damages. The Petiti oner 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 eviden ce 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

enti rety.

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

Tallahas see, 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

Pe nsacola, 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 32 301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the d ate of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.