STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY PRISKIE, )

)

Petitioner, )

)

vs. ) Case No. 99-4333

) IBEX COLONNADE CORPORATION, ) d/b/a OMNI COLONNADE HOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 15-17, 2001, January 2-4 and 7-8, 2002, and

February 11-13, 2002 in Fort Lauderdale, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey Priskie, pro se

19306 Northwest 13th Street Pembroke Pines, Florida 33029

For Respondent: Merideth C. Nagel, Esquire

Thomas H. Loffredo, Esquire Holland and Knight, L.L.P.

315 South Calhoun Street, Suite 600 Post Office Drawer 810 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex, religion, and national origin in violation of the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

Jeffrey Priskie (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) against Ibex Colonnade Corporation, d/b/a Omni Colonnade Hotel (Omni)(Respondent) alleging that Omni discriminated against him on the basis of sex, religion, and national origin. On August 18, 1999, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. On September 22, 1999, Mr. Priskie filed a Petition for Relief from an unlawful employment practice with the FCHR against Omni. On October 13, 1999, the FCHR referred this matter to the Division of Administrative Hearings.

The hearing was originally scheduled for February 1, 2000.

Mr. Priskie requested a continuance and the hearing was re-scheduled for February 28, 2000. Omni requested a

continuance, which was granted, and the hearing was cancelled. Prior to re-scheduling the hearing, Omni filed a Motion to Dismiss, which was denied. Subsequently, Omni filed a Motion for Summary Recommended Order and/or Relinquishment of

Jurisdiction to which Mr. Priskie responded and requested a summary recommended order. The motion and request were denied. Various discovery motions were filed and were ruled upon.

Subsequently, Omni filed another Motion to Dismiss, which was denied. The hearing was re-scheduled for May 23 and 24, 2001. Further discovery motions were filed and ruled upon. Both parties requested a continuance and the hearing was cancelled and re-scheduled for August 15-17, 2001. Further discovery motions were made and ruled upon.

At hearing, Mr. Priskie testified in his own behalf, presented the testimony of one witness, and entered 118 exhibits (Petitioner's Exhibits numbered 1-5, 7-15, 16(B), 17, 18, 20-30,

31(A), 31(B), 32-55, 57-62, 64-74, 76, 77, 77(A), 78-92, 99-112,

114-116, 118-123, 126, 128-130, 132, and 133) into evidence.

Omni presented the testimony of three witnesses and entered nine exhibits (Respondent's Exhibits numbered 1-9) into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript consisted of 12 volumes and the last volume was filed on April 17, 2002.

Mr. Priskie filed his post-hearing submission prior to the time set for filing post-hearing submissions and moved to disallow Omni the opportunity to file its post-hearing

submission at the agreed-upon time. His motion was denied and the undersigned provided Mr. Priskie the opportunity to file an amended post-hearing submission. An extension of time was granted for the filing of the post-hearing submissions. Omni timely filed its post-hearing submission, and Mr. Priskie chose not to file an amended post-hearing submission, having been provided an opportunity to do so. Included as a part of Omni's post-hearing submission was argument regarding certain documents Mr. Priskie alleged to be "missing." The undersigned finds Omni's arguments persuasive and determines that Omni committed no wrongdoing associated with the documents alleged to be "missing."1 The parties' post-hearing submissions were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that at all times material hereto, Omni was an employer as defined by the Florida Civil Rights Act of 1992, as amended.

2. No dispute exists that Mr. Priskie is a white, Jewish male.

3. Mr. Priskie began his employment with the Colonnade Hotel in 1992 as a Catering Manager. The Colonnade Hotel was then managed by The Continental Companies.

4. As a Catering Manager, Mr. Priskie was in a sales position. He was the Manager of the Year in 1993 and 1994.

5. At the time of hearing, Mr. Priskie had 20 years of experience in the hotel business.

6. In January 1994, the management of the Colonnade Hotel was assumed by Omni Hotels. The Colonnade Hotel then became known as the Omni Colonnade Hotel. When Omni Hotels2 assumed management, the Colonnade Hotel was under-performing in all areas as a hotel.

7. On or about January 25, 1994, Mr. Priskie was hired by Omni and immediately promoted to the Director of Catering. Based upon Mr. Priskie's performance before Omni took over, Omni was convinced that Mr. Priskie could perform in the position. As Catering Director, he was the direct supervisor of the Catering Sales Managers and other employees in the Catering Department. Mr. Priskie had never been a Catering Director under Omni's management.

8. At the time of Mr. Priskie's interview for the position of director of catering, at least two of the persons interviewing him knew that he was Jewish. Mr. Priskie replaced a non-Jewish male.

9. In mid-April 1994, Keith Douglas was transferred to the Omni Colonnade as the Director of Sales and Marketing.

   Mr. Douglas, in that position, became Mr. Priskie's supervisor. Mr. Douglas and Mr. Priskie had not worked together in any capacity prior to Mr. Douglas' transfer.

10. The primary goal of Mr. Douglas was to aid in the transition of the Omni Colonnade's catering and sales operations to Omni's standards. One of his core focuses in accomplishing this goal was for the Catering Department to develop and maintain its files according to Omni's Accounting Coverage Program (ACP) system's standards.

11. In 1994, the ACP system was a manual filing system, which required categorizing and qualifying accounts. The ACP system was used by Omni to evaluate the revenue potential of the Catering Department's account base. A Lotus spreadsheet, called the "ACP" for short, was created to reflect each of the files for the individual Catering Department's accounts, and included some of the contents of the files. Further, each file of an account of the Catering Department was required to be categorized a certain way and contain certain information qualifying the account, i.e., qualifying information.

12. The ACP system was particularly significant to Omni.

    
    

    The ACP system revealed the revenue potential of the Catering Department's account base, and Mr. Douglas needed to know the value of those accounts in light of the recent transition of the hotel to Omni.

13. One of the first issues addressed by Mr. Douglas with the Catering Department was the ACP system. He held a meeting in April 1994 with the Catering Department regarding the ACP

    system and, afterwards, provided the Catering Department with a memorandum explaining the ACP system. The memo explained how the ACP system should be executed.

14. At no time prior to his termination did Mr. Priskie indicate that he needed assistance in complying with the ACP system. To assist employees under his supervision, Mr. Priskie issued at least two memoranda explaining the ACP procedures and offering assistance to any employee who had questions. An inference is drawn that Mr. Priskie understood the ACP system.

15. On May 1, 1994, Omni's Management Performance Appraisal (MPA) was completed on Mr. Priskie. Mr. Douglas had requested Mr. Priskie to perform a self-evaluation using the MPA, and then he and Mr. Priskie reviewed the MPA. Mr. Douglas agreed with Mr. Priskie that Mr. Priskie's performance as the Director of Catering was acceptable, without noting any serious problems. A section of the MPA, entitled "Summary of Evaluation," considered the individual, being evaluated, on the whole and inquired in one area whether the individual's performance far exceeded, exceeded, met, needs some improvement, or did not meet job requirements. No notation was made by either Mr. Priskie or Mr. Douglas.

16. Within about a month after Mr. Douglas' arrival, he began to have concerns regarding Mr. Priskie's ability to lead the Catering Department under Omni's management. Mr. Douglas

    had several discussions with Mr. Priskie regarding expectations that he had as to Mr. Priskie's performance.

17. By memorandum to Mr. Priskie, dated July 6, 1994, Mr.

    
    

    Douglas summarized the several discussions that he had with Mr. Priskie and as to what he perceived to be Mr. Priskie's substandard performance. The memorandum was signed by

    Mr. Douglas and Mr. Priskie, and, as a witness, by Ms. Alina Molina, who was the Director of Human Resources.

18. Mr. Douglas stated in the memorandum that Mr. Priskie needed to complete three priorities by June 27, 1994:

    *Finalize Catering ACP

    
    

    *Qualification and color coding of Catering Files

    
    

    *Achieve ACP and Prospecting call quotas for the department

    
    

19. Further, Mr. Douglas indicated in the memorandum that Mr. Priskie failed to complete the first two priorities by the designated time and that Mr. Priskie blamed another employee for the incompletion, when the incompletion was caused by

    Mr. Priskie's own failure to perform priority number two with his own files. Moreover, Mr. Douglas indicated that, on

    June 28, 1994, he had given Mr. Priskie an extended deadline of July 1, 1994, to complete verification of the qualification of his own files but that Mr. Priskie failed to do so.

20. Mr. Douglas considered Mr. Priskie's attempt to blame another employee a misrepresentation by Mr. Priskie. Furthermore, Mr. Douglas considered the misrepresentation by Mr. Priskie to be a "huge infraction."

21. Additionally, Mr. Douglas stated in the memorandum that, on June 28, 1994, he informed Mr. Priskie that

    Mr. Priskie's performance was "disappointing" and that change was expected "immediately" in the following areas:

    *Execution of the Catering ACP and Catering file system

    
    

    *Personal qualification of your files

    
    

    *Achieve targeted ACP and Prospecting call quotas weekly for the department and personally

    
    

    *Achieve established revenue goals for the department

    
    

    *Set an example for the department

    
    

    *Develop Monthly Strategic Action Plan to achieve Catering Revenue Goals

    
    

    Finally, Mr. Douglas stated in the memorandum that all of the areas indicated above were of "major concern" and that he and Mr. Priskie agreed that "30 days is a reasonable time frame to recognize a marked improvement and your progress will be evaluated at that time."

22. Mr. Priskie was aware that he was in a "job threatening situation," i.e., that his job was in jeopardy.

    The undersigned finds credible the testimony that, in the hotel industry, an employee in Mr. Priskie's level of hierarchy, who is informed that their job is in jeopardy, knows that termination, not suspension, probation, or some other form of action, is the next step if the required change is not made.

23. Mr. Priskie began several techniques to address

    
    

    Mr. Douglas' concerns and noted the techniques in a memorandum to Mr. Douglas, dated July 11, 1994, with a copy to Ms. Molina and to Mark Amidon, Omni's Director for Food and Beverage. Some of Mr. Priskie's responsibilities as Director of Catering affected the food and beverage department over which Mr. Amidon was responsible. Mr. Priskie indicated, among other things, that the filing system was being put back in place after the files had been incorrectly and improperly filed by a person under his supervision; that the ACP worksheet update would begin after completion of the filing system; that remaining files would be updated; that weekly meetings with and monitoring of sales persons would occur regarding revenues, and everyone would work as a group; that individual counseling would occur with staff who failed to meet their revenue goals; and that he had begun to set a positive example for the sales persons by communicating more with them daily.

24. Shortly thereafter, on July 18, 1994, Mr. Douglas met with Mr. Priskie. Mr. Douglas discussed Mr. Priskie's inability

    to administratively lead the Catering Department, including leading by example; Mr. Priskie's managing by memoranda, as the only form of communication with the employees under his supervision; and Mr. Priskie's inability to handle relations between catering sales managers and difficult customers by referring difficult customers back to the appropriate sales manager and making sure proper follow-up occurs with both the sales manager and the customer. Mr. Douglas made clear to

    Mr. Priskie that he was questioning Mr. Priskie's ability to be the Director of Catering and that Mr. Priskie's job was in jeopardy. Mr. Douglas issued a memorandum to Ms. Molina, with a copy to Mr. Priskie, memorializing the meeting and discussion.

25. By memorandum dated July 21, 1994, Mr. Amidon complained to Mr. Douglas about the Catering Department, a complaint which was indirectly about Mr. Priskie. Mr. Amidon complained that the "flow of informations [sic]" from the Catering Department to the Banquet Department was worse and was causing "numerous problems for the Banquet department and alternately our guests." As Director of Catering, Mr. Priskie was held responsible for the problems regarding the communication between the departments.

26. Mr. Priskie failed to meet Mr. Douglas' expectations as Director of Catering. On August 5, 1994, Mr. Priskie was terminated from his position of Director of Catering and from his employment with Omni.

27. On the date of Mr. Priskie's termination, Mr. Douglas issued a memorandum addressing whether Mr. Priskie had met the goals outlined in the memorandum of July 6, 1994. Mr. Douglas reviewed a portion of Mr. Priskie's and the Catering Department's files and determined that neither Mr. Priskie's files nor the Catering Department's files, as a whole, met Omni's ACP standards. Even though Mr. Priskie had established a Lotus spreadsheet outlining his files and the files of each catering manager, Mr. Douglas determined that the information in the files themselves did not mirror the information on the spreadsheets.

28. Further, Mr. Douglas determined that the Catering Department, as a whole, failed to meet its sales goals although Mr. Priskie consistently met his own booking and sales revenue goals. As the Director of Catering, Mr. Priskie was held responsible for the performance of the sales persons in the Catering Department and for assuring that the Catering Department achieved its goals as a whole.

29. Mr. Priskie does not dispute that the Catering Department, as a whole, failed to meet its revenue (sales)

    goals. At the same time, Mr. Priskie states that he should not be held responsible because Mr. Douglas prevented him from managing his (Mr. Priskie's) subordinates. The record contains insufficient evidence to support Mr. Priskie's position.

30. During his employment with Omni as the Director of Catering, Mr. Priskie supervised a Hispanic3 female, Amisel "Amy" Nunez. Ms. Nunez was first a Catering Sales Manager and, subsequently, a Senior Catering Sales Manager. Ms. Nunez's primary responsibility was to generate revenue and bookings from the catering markets assigned to her. Ms. Nunez's responsibilities were no comparison to Mr. Priskie's, who was responsible for the performance of the Catering Department in revenue goals, as a whole, as well as his own revenue goals.

31. According to her Pace Reports, Ms. Nunez exceeded her year-to-date sales goals through May 1994, but failed to meet her goals for the months of June and July 1994. She was not terminated for failing to meet her sales goals for June and July 1994.

32. Mr. Priskie asserts that he was prevented by

    
    

    Mr. Douglas from supervising Ms. Nunez. Mr. Priskie complained to Mr. Douglas regarding Ms. Nunez not meeting her sales goals. According to Mr. Priskie, Mr. Douglas advised him not to be concerned about Ms. Nunez's performance regarding the sales goals. Mr. Priskie's testimony is found to be credible.

    Regardless, the evidence is insufficient to show that the failure of Ms. Nunez's reaching her sales goals for June and July 1994, played a role in the termination of Mr. Priskie for poor performance.

33. At or around the time of Mr. Priskie's termination from Omni, Ms. Nunez's position was Senior Catering Sales Manager. By letter dated July 19, 1994, Ms. Nunez notified Mr. Douglas that she was resigning, effective August 25, 1994.

    Omni requested that she reconsider her decision to resign, and by memorandum, dated July 27, 1994, Ms. Nunez advised Omni that she would continue in the position of Senior Catering Sales Manager for 30 days and would consider completely rescinding her resignation under certain conditions, which were enumerated.

    After Mr. Priskie's termination, even though Ms. Nunez did not have the title of Director of Catering, she assumed

    Mr. Priskie's responsibilities. Omni had begun to pursue its Hispanic market, a more lucrative market for Omni at that time. An inference is drawn that Omni's pursuit of the Hispanic market was a business decision.

34. On August 22, 1994, Omni's Management Performance Appraisal (MPA) was completed on Ms. Nunez, as Senior Catering Sales Manager, by Mr. Douglas. The Summary of Evaluation section indicated, among other things, that Ms. Nunez exceeded the job requirements. The MPA reflected also a recommendation

    from Mr. Douglas to increase her salary from $25,000.00 to

    
    

    $28,000.00, with a .5 percent increase in gratuity.

    
    

35. Ms. Nunez resigned her position, as Senior Catering Sales Manager, effective October 1994.

36. Mr. Priskie claims that Omni terminated him so that it could replace him with a Hispanic female, namely, Ms. Nunez, and attract the Hispanic market. Obviously, Ms. Nunez is of a different sex than Mr. Priskie.

37. Mr. Priskie has taken differing positions on whether he was terminated because of his sex: he does and he does not believe that he was terminated because of his sex. The evidence is insufficient to demonstrate that Mr. Priskie believes that he was terminated because of his sex.

38. During his employment as Director of Catering,

    
    

    Mr. Priskie was requested by his superiors to test the market and develop Kosher catering at Omni, wherein Omni would handle the Kosher catering in-house instead of hiring an outside business to provide the Kosher catering. Among other things, in-house Kosher catering required supervision by a Rabbi; a kitchen devoted exclusively to Kosher cooking; the use of Kosher products, cooked in Kosher pots and pans, and served on Kosher plates; and the use of Kosher utensils. At the time, no other hotel in the area had a Kosher program.

39. Mr. Priskie had numerous meetings with the Jewish community and suppliers of Kosher products and expended an enormous number of hours in developing a plan for Kosher catering. Mr. Douglas claims that he was not aware that

    Mr. Priskie had expended so much time on the Kosher catering; however, such testimony by Mr. Douglas is not found to be credible. Mr. Douglas was aware of Mr. Priskie's involvement in developing in-house Kosher catering at Omni.

40. But, what is found to be credible is the testimony that Omni determined that Kosher catering would not be pursued because Kosher catering was too expensive and because Omni's physical limitations were not suitable for Kosher catering. For Omni to provide Kosher catering, many changes and revisions would have to be made, including creation of an additional kitchen for which no additional space existed; and additional space for the storing of Kosher cutlery, dishes, pots, and pans for which no additional space existed. Sales revenue was lower than Omni wanted, and Omni did not want to venture into a costly undertaking. The evidence is insufficient to demonstrate that Omni disparately treated Mr. Priskie because it did not pursue or by not pursing the Kosher catering program.

41. Apparently, after the decision was made to not pursue Kosher catering, Mr. Priskie was not notified of the decision. Mr. Priskie continued with his planning. He was finally

    informed that Omni would not pursue Kosher catering. After Mr. Priskie's termination, in-house Kosher catering became a dead issue.

42. In October 1994, after Mr. Priskie's termination, Omni hired a female, Melanie Zeller, as a Catering Sales Manager. In February 1995, she was promoted to the position of Director of Catering. Mr. Douglas believed that Ms. Zeller possessed the capabilities to perform and grow in the position.

43. On May 26, 1995, Ms. Zeller was appraised in her position as Catering Director, using the MPA. In the Summary of Evaluation section, she was rated as having met the job requirements.

44. By memorandum dated November 14, 1995, Ms. Zeller was notified by Mr. Douglas of performance concerns. He indicated, among other things, that the memorandum constituted a warning and that further disciplinary action, including termination, may follow if certain areas did not improve.

45. On January 2, 1996, Ms. Zeller was appraised again using the MPA. In the Summary of Evaluation section she was rated as not meeting the job requirements.

46. On March 26, 1996, Ms. Zeller was terminated for poor performance. Prior to her termination, Ms. Zeller was warned of the areas in which she must improve, as was Mr. Priskie. The areas for improvement were customer response time; billing and

    collections for the catering department; development of realistic, but aggressive, budgets for the catering department; achievement of monthly budget expectations; and enhancement of her position within Omni. Ms. Zeller was unable to meet the performance expectations of Omni and was terminated.

47. Mr. Priskie also asserts that Ms. Zeller was provided a longer period of time to improve and, therefore, Omni discriminated against him. Omni's economic circumstances at the time that it assumed management of the hotel needs to be considered. The hotel was under-performing in all areas, which equated to low revenues; Omni wanted revenues to increase and increase in a short period of time. When Ms. Zeller became Director of Catering, the revenues were better than in the beginning of Omni's management, but Omni still had standards to maintain. The evidence is insufficient to show that such action by Omni was inappropriate, especially given the circumstances.

48. No evidence as to Ms. Zeller's religion was presented.

    
    

49. The evidence was insufficient to establish her national origin.

50. Obviously, Ms. Zeller is of a different sex than Mr. Priskie.

51. Another employee under Mr. Douglas' supervision to whom Mr. Priskie claims his treatment should be compared is Diana Anker. Ms. Anker's position was Business Travel Sales

    Manager. Her position was not equivalent to Mr. Priskie's position. Even though she had sales goals, Ms. Anker's sales goals were in terms of numbers of room nights booked, not in terms of dollar amounts. Further, Mr. Priskie was not terminated on his failure to meet his sales goals.

52. Additionally, another employee with whom Mr. Priskie claims his treatment should be compared was Omni's Chef, Alain Petitbon. Chef Petitbon was Mr. Priskie's equal in terms of hierarchy at Omni, and he had no supervisory authority or any other authority over Mr. Priskie. Allegedly, Chef Petitbon made an anti-Semitic remark about Mr. Priskie at a banquet function, referring to Mr. Priskie as a "Jew boy" or "Jew" or "fucking Jew." Mr. Priskie complained both orally and in writing.

53. Mr. Amidon was Chef Petitbon's supervisor. By memorandum to Chef Petitbon, dated March 22, 1994, Mr. Amidon imposed disciplinary action against Chef Petitbon. The memorandum was signed by George Cozonis, Omni's General Manager; Ms. Molina; Mr. Amidon; and Chef Petitbon. Among other things, Mr. Amidon labeled Chef Petitbon's remarks as a "grave offense" and warned him against any further violations of Omni's policy. The disciplinary memorandum was placed in Chef Petitbon's personnel file.

54. The disciplinary action taken against Chef Petitbon was not taken at or around the time that he made the

    anti-Semitic remark about Mr. Priskie. The disciplinary action, regarding Mr. Priskie, was taken against Chef Petitbon only after Chef Petitbon had committed improper actions against other employees in February 1994, which were considered in violation of Omni's policy.

55. Prior to the disciplinary action against Chef Petitbon, but shortly after Chef Petitbon made the remark about Mr. Priskie, Mr. Douglas and Mr. Amidon were in attendance at an Executive Committee meeting, as members of the Executive Committee. During the meeting, Mr. Douglas made a joke regarding the anti-Semitic remark by Chef Petitbon, using the phrase "Jew boy" but not directly referring to Mr. Priskie although it was understood that Mr. Douglas' remark was referring to Mr. Priskie. Even though, in 1994, Omni had an "Open Door Policy," which provided an avenue for Mr. Priskie or Mr. Amidon to complain regarding the remark made by Mr. Douglas, neither Mr. Priskie nor Mr. Amidon used the "Open Door Policy." The undersigned finds Mr. Amidon's testimony credible that

    Mr. Douglas made the remark.4

56. The evidence demonstrates that Mr. Douglas and Omni's management knew that Mr. Priskie was Jewish before Mr. Priskie's termination. Even having found that Mr. Douglas knew that

    Mr. Priskie was Jewish before Mr. Priskie's termination, the

    evidence is insufficient to demonstrate that such knowledge played a role in the termination of Mr. Priskie.

57. Further, Mr. Priskie asserts that, during hiring/promotional phase to the position of Director of Catering, Omni's Regional Vice President, Philip Georgas, made a discriminatory comment and that the comment evidenced discrimination. Mr. Georgas was one of Omni's executives with whom Mr. Priskie interviewed. The comment made by Mr. Georgas was that Mr. Georgas was "Greek," that Mr. Priskie was "Jewish," and that "normally Greeks and Jews don't work well together." However, even after the comment was made, Mr. Georgas did not object to Mr. Priskie being hired/promoted as the Director of Catering and Mr. Georgas was under no obligation to approve

    Mr. Priskie getting the position. This evidence is insufficient to establish that Mr. Georgas' comment or knowledge that

    Mr. Priskie was Jewish caused or played a role in Mr. Priskie's termination.

58. During 1994, Omni terminated seven employees for poor performance. Mr. Priskie asserts that such terminations support his position that Omni discriminated against him. Race-wise, of the seven persons terminated, one was Black, two were Hispanic, and four were White. The religious affiliation of each employee was listed by Omni as "unknown" because such information was not required by Omni and was, therefore, not maintained by Omni.

    However, the evidence clearly shows that one of the seven terminations was Jewish, i.e., Mr. Priskie. Further, the undersigned finds Mr. Priskie's testimony credible that another employee was a Jewish-female, who worked for Omni only six weeks before being terminated. Mr. Priskie did not know the other five employees who were terminated. This evidence that two Jewish-employees were terminated in 1994 by Omni is insufficient, in and of itself, to demonstrate that Omni terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination.

59. Taking the above circumstances together, regarding knowledge of and the actions of those who had knowledge of Mr. Priskie's religion and/or national origin and the termination of seven employees for poor performance, the evidence is still insufficient to demonstrate that Omni

    terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination.

    Damages

    
    

60. At the time of his termination, Mr. Priskie earned

    
    

    $40,000.00 per year in salary, plus a percentage of the Catering Department revenues.5 According to Mr. Priskie, his commission was $21,000.00 in 1994 and he estimates that his commission for 1995 through 2001 at $42,000.00 per year.

    The evidence is insufficient to show that Mr. Priskie's commissions can be predicted with reasonable certainty.

61. For the years 1994 through 2001, he estimates his lost wages at $343,643.00 and lost commission at $315,000.00.6

    Mr. Priskie computes his lost wages by adding a three percent cost of living increase to his salary for each year after 1994. Further, Mr. Priskie asserts an entitlement to his actual cost of health insurance, totaling $57,330.00, that he obtained after his employment. As a benefit of his employment, Omni provided Mr. Priskie with health insurance at no cost to him. As a result, Mr. Priskie claims lost wages of $715,973.00, with 10 percent simple interest; totaling $787,570.00.

62. In addition to lost wages, Mr. Priskie asserts an entitlement to fees at $450,000.00 and costs of bringing this action at $23,352.85. The fees are calculated by using the estimated time that he and his wife expended on this case over a seven-year period, which was 3000 hours, at $150.00 per hour. The costs include copying, stationary, subpoenas, gasoline, cellular telephone, home telephone, dry cleaning, postage, and home computer.

63. Further, Mr. Priskie claims punitive damages at

    
    

    $1,260,622.85.

    
    

64. Consequently, Mr. Priskie's total claim is

    
    

    $8,240,622.85.

65. Regarding mitigation, Mr. Priskie asserts that he tried to find employment after he was terminated, but he could not recall who he contacted, his first job after being terminated, where he worked in 1995, or how long he was unemployed. Approximately one month after being terminated, Mr. Priskie underwent knee surgery and, during his recovery period from the surgery, Mr. Priskie was unable to recall whether he sought employment even though he was able to perform catering duties.

66. For the years 1994 (after his termination) and 1995, no credible evidence was presented as to mitigation.

67. Beginning approximately 1996, Mr. Priskie started his own business, named "Father Goose," which was a mail- order/internet catalogue. Mr. Priskie ran Father Goose exclusively and obtained no other employment until approximately 2000 because he wanted to work at home, so that he could spend time with his family. According to Mr. Priskie, Father Goose operated at a loss.

68. In approximately 2000, Mr. Priskie began working as the Director of Catering at a restaurant, named Shooters. He earns $35,000.00 per year, as a base salary, and a commission of three percent of his gross catering sales. Mr. Priskie's base salary is less than he received at Omni, and his commission is more than he received at Omni.

69. Mr. Priskie's tax returns for the years 1994, 1996, 1997, and 1998 were entered into evidence. During the years 1996, 1997, and 1998, Mr. Priskie characterized his occupation as an "Investor" on his tax returns. According to Schedule D of his tax returns, Mr. Priskie had capital gains from sales and purchases of stock of $194,913.00 for 1996; $31,348.00 for 1997; and $178,532.00 for 1998.

70. Mr. Priskie's tax returns for the years 1995, 1999, and 2000 were neither offered nor entered into evidence.7 Furthermore, no credible evidence regarding his income for those years was presented.

71. Mr. Priskie's efforts at mitigation were not reasonable until 2000 when he began employment at Shooters.

    CONCLUSIONS OF LAW

    
    

72. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.11 and 120.569, Florida Statutes, and Subsection 120.57(1), Florida Statutes.

73. Section 760.10, Florida Statutes, provides in pertinent part:

    1. It is an unlawful employment practice for an employer:

       
       

       1. 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.

          
          

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

74. The instant case has no direct evidence of unlawful unemployment practices. A three-step burden and order of presentation of proof have been established for unlawful employment practices in which no direct evidence of unlawful employment practices exists. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973); Aramburu v. The Boeing Company, 112 F.3d 1398, 1403 (10th Cir. 1999). The initial burden is upon Mr. Priskie to establish a prima facie case of discrimination. McDonnell Douglas, at 802; Aramburu, at 1403. Once he establishes a prima facie case, a presumption of unlawful discrimination is created. McDonnell

    Douglas, at 802; Aramburu, at 1403. The burden shifts then to Omni to show a legitimate, nondiscriminatory reason for its action. McDonnell Douglas, at 802; Aramburu, at 1403. If Omni carries this burden, Mr. Priskie must then prove by a preponderance of the evidence that the reason offered by Omni is

    not its true reason, but only a pretext for discrimination. McDonnell Douglas, at 804; Aramburu, at 1403.

75. However, at all times, the ultimate burden of persuasion that Omni intentionally discriminated against Mr. Priskie remains with him. Texas Department of

    Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    
    

    L. Ed. 2d 207 (1981).

    
    

76. Mr. Priskie must establish a prima facie case of discrimination by showing: (1) that he belongs to a protected group; (2) that he was subjected to an adverse employment action; and (3) that his employer treated similarly situated employees outside the protected group differently or more favorably. McDonnell Douglas, supra; Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997); Aramburu, supra.

77. Mr. Priskie has satisfied the first two requirements of the prima facie test.

78. As to the third requirement of the prima facie test, Mr. Priskie must show that he and the other employees (the comparator employees) are "similarly situated in all relevant respects." Holifield, supra, at 1562. In making such a determination, consideration must be given to "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Ibid.

79. The comparator employees "must be similarly situated in all material respects, not in all respects." McGuinness v.

    Lincoln Hall, 263 F.3d 49,53 (2d Cir. 2001); Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). "In other words, . . . those employees must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination." McGuinness, supra, at 54. Similarly situated "only requires similar misconduct from the similarly situated comparator." Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001). The employees need not have the disciplines administered by the same supervisor to be similarly situated. Anderson, supra. An employee who is discharged subsequent to the complaining employee can be examined as to whether they are similarly situated. McGuinness, supra, at 53.

80. Mses. Nunez and Zeller are comparator employees.

    
    

    Ms. Nunez did not have the title of Director of Catering but she performed the duties of the Director of Catering after

    Mr. Priskie's termination. Prior to assuming Mr. Priskie's duties, Ms. Nunez was the Senior Catering Sales Manager, after being a Catering Sales Manager, and her performance was measured by the achievement of her own sales goals, unlike Mr. Priskie's situation which was performance being measured by the achievement of sales goals of the Catering Department as a

    whole. After assuming Mr. Priskie's duties, Ms. Nunez performed his duties until she resigned, effective in October 1994. The evidence was insufficient to establish that, under Ms. Nunez's supervision, the Catering Department, as a whole, failed to meet its sales goals and that, even under those circumstances, she was retained by Omni.

81. Ms. Nunez is of a different sex than Mr. Priskie. The evidence is insufficient to demonstrate that Mr. Priskie believes that he was terminated because of his sex. Even if Mr. Priskie believes that he was terminated because of his sex, the evidence is also insufficient to demonstrate that he was terminated because of his sex.

82. The evidence is insufficient to show disparate treatment between Ms. Nunez and Mr. Priskie by Omni.

83. As to Ms. Zeller, she was first hired in October 1994 as a Catering Sales Manager, the same position Ms. Nunez first held with Omni. In 1995, Ms. Zeller was promoted to Director of Catering. On March 26, 1996, she was terminated for poor performance, the same reason given by Omni for Mr. Priskie's termination.

84. No evidence was presented as to Ms. Zeller's religion, and the evidence was insufficient to establish her national origin. The evidence is insufficient to demonstrate that Omni

    discriminated against Mr. Priskie on the basis of his religion and/or national origin.

85. Ms. Zeller is of a different sex than Mr. Priskie.

    
    

    The evidence is insufficient to demonstrate that Mr. Priskie believes that he was terminated because of his sex. Even if Mr. Priskie believes that he was terminated because of his sex, the evidence is also insufficient to demonstrate that he was terminated because of his sex.

86. The evidence is insufficient to show disparate treatment between Ms. Zeller and Mr. Priskie by Omni.

87. Mr. Priskie failed to satisfy the third requirement of the prima facie test.

88. Even assuming Mr. Priskie satisfied the third requirement of the prima facie test, Omni demonstrated a legitimate, nondiscriminatory reason for its employment action of terminating Mr. Priskie.8 That reason was poor performance.

89. Mr. Priskie must now demonstrate by a preponderance of the evidence that the reason offered by Omni for dismissing him is not its true reason, but only a pretext for discrimination. McDonnell Douglas, at 804; Aramburu, at 1403.

90. Only one comparator employee, Ms. Zeller, was terminated for poor performance. The evidence is insufficient to demonstrate that the reason offered by Omni for terminating Mr. Priskie was a pretext for discrimination.

91. The other comparator, Ms. Nunez, was not terminated but resigned. Furthermore, Omni pursued the Hispanic market because of business reasons. The evidence is insufficient to demonstrate that the reason offered by Omni for terminating Mr. Priskie was a pretext for discrimination.

92. The evidence is insufficient to demonstrate that Mr. Priskie was terminated because he is Jewish. The evidence establishes that Omni decided not to proceed with in-house Kosher catering because it was too expensive and the physical structure of Omni would not accommodate Kosher catering. Even

    if Omni wanted to turn its attention to the Hispanic market, the evidence shows that such a move by Omni was based upon economics, not that Mr. Priskie was Jewish. Further, the evidence does not show that Mr. Priskie's termination was influenced by the comments made by Mr. Georgas in the interview stage for the hiring of Mr. Priskie in the position of Director of Catering; or by the comment made by Mr. Douglas in the Executive Committee meeting.

93. Considering all of the findings and conclusions, Mr. Priskie failed to demonstrate that the legitimate, nondiscriminatory reason provided by Omni for terminating him was pretextual.

94. The ultimate burden is upon Mr. Priskie. He failed to demonstrate that Omni discriminated against him on the basis of sex, religion, and/or national origin.

95. To address the issue of damages is unnecessary.

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 finding that Ibex Colonnade Corporation, d/b/a Omni Colonnade Hotel did not discriminate against Jeffrey Priskie on the basis of his sex, religion, and/or national origin.

DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 31st day of January, 2003.

ENDNOTES

1/ Omni's position that notice of the documents, which should be retained by the alleged violator, occurs at the time of discovery is not persuasive. The letter from FCHR, informing Omni of the complaint and documents which should be retained, was sufficient to place Omni on notice that documents which may relate to the complaint should be retained. However, Omni's assertion that reasonableness should be the guide in determining which documents are related to the complaint is persuasive.

Documents which were reasonably related to the complaint should have been retained by Omni. Mr. Priskie was not persuasive that the documents which were missing and which were shown to have existed, should have been retained. Obviously, documents which never existed cannot be retained.

2/ Omni Hotels and Omni are synonymous.

3/ Mr. Priskie uses the term Latin, instead of Spanish. In this Recommended Order, Latin and Spanish are synonymous.

4/ The undersigned is not persuaded that Mr. Douglas did not make the joke at the meeting even though Mr. Douglas was neither assigned to Omni at the time of the Executive Committee meeting nor at Omni at the time Chef Petitbon was disciplined; and even though Mr. Priskie did not avail himself of Omni's "Open Door Policy."

5/ Omni's personnel record reflects a salary of $1,538.46 bi- weekly. No documentation was entered into evidence regarding the percentage of revenues for the Catering department but no dispute exists that Mr. Priskie obtained a percentage of the revenue. Mr. Priskie indicates his base salary was $20,000.00, with a commission of $21,000.00.

6/ Ibid. Additionally, for years 1995 through 2000, Mr. Priskie indicates his commission at $42,000.00.

7/ During the hearing, Mr. Priskie was provided an opportunity to provide his tax returns for 1995, 1999, and 2000. However, he was unable to provide them.

8/ This Recommended Order addresses issues beyond satisfying the prima facie test in the event that the Florida Commission on Human Relations determines that the prima facie test has been satisfied, which avoids a remand for a determination on pretext.

COPIES FURNISHED:

Jeffrey Priskie

19306 Northwest 13th Street Pembroke Pines, Florida 33029

Meideth C. Nagel, Esquire Thomas H. Loffredo, Esquire Holland and Knight, L.L.P.

315 South Calhoun Street, Suite 600 Post Office Drawer 810 Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel 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 date 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.

Docket for Case No: 99-004333

Orders for Case No: 99-004333