04-004316 Susan Coffy vs. Porky`s Barbeque Restaurant Status: Closed Recommended Order on Friday, March 18, 2005.

Summary: Petitioner failed to establish a prima facie case of employment discrimination. Respondent established that Petitioner was terminated because of her inappropriate and unprofessional conduct while on duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN COFFY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4316

)

PORKY'S BARBEQUE RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

February 4, 2005, in Titusville, Florida, before Carolyn S.

Holifield, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Susan Coffy, pro se

2966 Temple Lane

Mims, Florida 32754

For Respondent: Walter Milton, Owner

Porky's Barbeque Restaurant

4280 South Washington Avenue

Titusville, Florida 32780

STATEMENT OF THE ISS UE

The issue is whether Respondent, Porky's Barbeque

Restaurant, engaged in an u nlawful employment practice by

terminating Petitioner, Susan Coffy, from her position.

PRELIMINARY STATEMEN T

On or about December 26, 2003, Petitioner, Susan Coffy

("Petitioner"), filed an Employment Charge of Discrimination

("Charge of Discrimination") with the Florida Commission on

Human Relations ("Commission"). The Charge of Discrimination

alleged that Petitioner was laid off her job by Respondent,

Porky's Barbeque Restaurant ("Porky's" or "Respondent"), and

that the action was motivated by age disc rimination. The

Commission's Office of Employment Investigations conducted an

investigation into Petitioner's allegations and based on the

investigation, determined there was no reasonable cause to

believe that an unlawful employment practice occurred. T he

Commission entered a "Notice of Determination: No Cause" on

October 25, 2004. Petitioner timely filed a Petition for

Relief, and the case was referred to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge to conduct the formal hearing.

At hearing, Petitioner testified on her own behalf and

presented the testimony of four other witnesses: Roberta Harty,

Joyce Miller, Vivian Wilson, and James Kenaston. Petitioner

offered and had three exhibits admitted into evidence.

Respondent presented the testimony of three witnesses: Walter

Milton, Catherine Allen, and David Dibble. Respondent offered

and had two exhibits received into evidence.

After the hearing, on February 7, 2005, Respondent filed a

letter requesting that ce rtain "information and testimony"

provided by Petitioner's witnesses be stricken. That request is

denied.

The proceeding was recorded, but was not transcribed.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a female and, at all times relevant to

this proceeding, was over the age of 40.

2. From March 1, 2003, until October 28, 2003, Petitioner

was employed as a waitress at Porky's, a barbecue restaurant.

On October 28, 2003, Petitioner was terminated from her job as a

waitress.

3. Prior to March 1, 2003, Petitioner had worked as a

waitress at another restaurant, Fat Boy's Restaurant (Fat

Boy's), that had been operating at the same location as Porky's.

Fat Boy's closed after the building in which that restaurant was

located was purchased by Walter Milton. After Mr. Milton

purchased the building, he opened his own business, Porky's, at

that location.

4. After Mr. Milton opened his restaurant, he employed

many of the individuals who had been employed by Fat Boy's , but

told them that their employment with Porky's was for a "trial

period."

5. Immediately after Porky's opened for business,

Mr. Milton initiated operational directives that he believed

were essential business needs for operating a barbecue business.

H e introduced these new directives to the employees of Porky's,

many of whom had previously worked for Fat Boy's. While some of

these employees were successful in making the transition to the

new operation, there were employees, including Petitioner, who

w ere resistant to the operational directives initiated by

Mr. Milton.

6. Even though Petitioner was resistant to the new

operational directives that were implemented at Porky's,

Mr. Milton continued to try to work with Petitioner. In fact,

Petitioner work ed as a waitress at Porky's the first eight

months the restaurant was open.

7. During the course of her employment, Mr. Milton found

that Petitioner was an employee who failed to follow simple

instructions. For example, Mr. Milton directed employees to

k nock on his office door when the door was closed.

Notwithstanding this very simple directive, Petitioner refused

to comply.

8. One day Petitioner went to Mr. Milton's office and

found the door to the office was closed. Instead of knocking as

she had bee n previously directed, Petitioner simply barged into

the office and stated that she needed a band - aid. After

Petitioner barged into the office without knocking, Mr. Milton

reminded her that she should knock on the door and wait for a

response before comin g into his office. About three minutes

after this admonition, Petitioner returned to Mr. Milton's

office. Although the office door was closed, Petitioner, again,

did not knock on the door, but simply opened the door and went

into the office.

9. Mr. Milt on was not pleased with Petitioner's failure to

embrace the directives he initiated and implemented for Porky's.

However, the "final straw" that resulted in Mr. Milton's

terminating Petitioner's employment was an incident about a menu

item.

10. On Octob er 28, 2003, Petitioner was very upset that

Mr. Milton had included an item on the Porky's menu that also

had been on the Fat Boy's menu. That menu item was referred to

as "Jim's Special Burger." Mr. Milton included that item on

Respondent's menu to hono r Jim Kenaston, who had been the owner

of Fat Boy's.

11. On October 28, 2003, Petitioner "flew off the handle"

and confronted Mr. Milton about his decision to include the

item, "Jim's Special Burger," on the Porky's menu. Petitioner,

who admits she was up set about this matter, confronted

Mr. Milton and argued to him that he had no right to put the

"Jim's Special Burger" on Respondent's menu.

12. The confrontation started in the kitchen of the

restaurant, but continued after Petitioner left the kitchen an d

proceeded into the restaurant's dining room. Although there

were customers in the dining room, Petitioner continued to argue

with Mr. Milton about the menu item.

13. Petitioner's verbal criticism and objection to

Mr. Milton's decision to include "Jim' s Special Burger" on

Respondent's menu created such a commotion in the restaurant

that Respondent's bookkeeper heard Petitioner's outbursts from

her office located behind the cashier's counter. After the

bookkeeper heard Petitioner arguing with Mr. Milton , the

bookkeeper left her office and in an effort to de - escalate the

situation, escorted Petitioner out of the dining room to a back

hall of the restaurant where there were no customers.

14. On October 28, 2003, as a result of Petitioner's

inappropriate an d unprofessional conduct described in

paragraphs 10 through 13, Mr. Milton terminated Petitioner's

employment at Porky's.

15. The same day that he terminated Petitioner's

employment, Mr. Milton completed a "Separation Notice" on which

he indicated that Pet itioner was laid off due to lack of work.

The reason Mr. Milton wrote this on the form was so that

Petitioner could receive unemployment compensation.

16. Petitioner presented no competent and substantial

evidence that she was terminated from employment b ecause of her

age. Likewise, Petitioner presented no evidence that after she

was terminated, she was replaced by a younger worker.

17. At all times relevant to this proceeding, Respondent

had four or five employees who were over 40 years of age.

18. Petit ioner presented several witnesses who testified

that she was an excellent waitress when she was employed at Fat

Boy's. However, Petitioner's job performance while working for

her previous employer is not at issue or relevant in this

proceeding. Even if t hat testimony is accepted as true, no

inference can be drawn that Petitioner's performance remained

the same or was viewed as such by her new employer.

19. Notwithstanding the opinions expressed by her previous

employers and co - workers, Petitioner was term inated from her

employment at Porky's as a result of her unacceptable and

unprofessional conduct on October 28, 2003.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceed ing. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

21. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes

(2004), prohibits discrimination in the workplace. The Act,

among other things, forbids th e discriminatory firing of an

employee.

22. Subsection 760.10(1)(a), Florida Statutes (2004),

states the following:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

23. Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes (2004), which provides the

following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

24. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corporation v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under Section 760.10,

Florida Statutes (2004). See Florida Department of Community

Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1 991).

25. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts t o Respondent, the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non - discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Respondent's offered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

26. In order to prove a pr ima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes

(2004), Petitioner must establish that: (1) she is a member of

the protected age group; (2) she was subject to adverse

employment action; (3) she was qualified to do the job; and

(4) she was replaced by a younger worker. See Williams v. Vitro

Services Corporation , 144 F.3d 1438, 1441 (11th Cir. 1998).

27. Petitioner presented neither direct evidence of

discriminatory intent or statistical evidence demonstrating a

patt ern of such intent. Thus, only circumstantial evidence, if

any, can be applied to analyze Petitioner's claim under the

McDonnell framework. Early v. Champion Int'l. Corp. , 907 F.2d

1077, 1081 (11th Cir. 1990).

28. Petitioner has failed to prove a prima f acie case of

unlawful employment discrimination.

29. Petitioner established that she is a member of the

protected group in that she is over 40 years of age. Petitioner

also established that she was subject to adverse employment

action in that she was term inated from her job as a waitress.

Finally, Petitioner established that, based on her recent job

performance, she was qualified to do the typical work expected

of a waitress.

30. However, Petitioner presented no evidence that she was

replaced by a younger person. Having failed to establish this

element, Petitioner has not established a prima facie case of

employment discrimination.

31. Even if Petitioner had met the burden, Respondent

presented evidence of legitimate, non - discriminatory reasons for

termin ating Petitioner, thereby rebutting any presumption of age

discrimination. The evidence presented by Respondent

established that Petitioner was terminated for her inappropriate

and unprofessional conduct, that is, Petitioner's confronting

and arguing with the owner of the business in front of customers

at the restaurant and while she was on duty.

32. Petitioner failed to prove that Respondent's reasons

for firing her are pretextual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Respondent, Porky's Barbeque

Restaurant, did not commit any unlawful employment practice and

dismissing the Petition for Relief.

DONE AND ENTERED this 18th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 18th day of March, 2005.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Walter Milton

Porky's Barbeque Restaurant

4280 South Washington Avenue

Titusville, Florida 32780

Susan Coffy

2966 Temple Lane

Mims, Florida 32754

Cecil Howard, General Counsel

Flo rida 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 date of this Recommended Order. Any ex ceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.