STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On November 20, 2008, a duly-noticed hearing was held in St. Augustine, Florida, before Lisa Shearer Nelson, an Administrative Law Judge appointed by the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Freddie J. Sexton, pro se

Diane J. Sexton, pro se Post Office Box 105

St. Augustine, Florida 32084

For Respondent: Regina Sargeant, Esquire

2820 US 1 South, Suite F

St. Augustine, Florida 32086 STATEMENT OF THE ISSUE

The issue to be determined in this case is whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered.

PRELIMINARY STATEMENT

This case was initiated when Petitioners Freddie Sexton and Diana Sexton each filed complaints with the Florida Human Relations Commission (the Commission) alleging discrimination by their employer, St. Augustine Transfer/Gamby Carriage Company.

In each case on August 12, 2008, the Commission issued a Determination: No Cause and a Notice of Determination: No Cause. On August 25, 2008, Petitioners each filed a Petition for Relief with the Commission, and on September 17, 2008, the Petitions for Relief were forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge.

On October 7, 2008, the cases were consolidated. A Notice of Hearing issued scheduling the hearing for November 20, 2008, and the cases proceeded as scheduled. Prior to the hearing, Respondent moved for attorney's fees and costs pursuant to Section 120.595, Florida Statutes (2008). Respondent's motion will be addressed in the Conclusions of Law. At hearing, Petitioner Diana Sexton testified and Petitioners' Exhibits numbered 1-2 were admitted into evidence. Petitioner Freddie Sexton chose not to testify. Respondent presented one witness, Stuart Gamsey, and Respondent's Exhibit numbered 1 was admitted.

The proceedings were recorded and at the time of hearing, Petitioners indicated their intent to order the transcript.

However, when no transcript was filed after more than ten

business days, the court reporter was contacted and confirmed that no transcript had been ordered. On December 18, 2008, an Order issued noting the lack of a transcript and establishing December 29, 2008, as the deadline for submission of proposed recommended orders. Both Petitioners' and Respondent's Proposed Recommended Orders were timely filed and have been carefully considered in the preparation of this Recommended Order. All references are to the 2007 version of the Florida Statutes unless otherwise indicated.

FINDINGS OF FACT

1. Petitioners Diana Sexton and Freddie Sexton were carriage drivers for Gam-San, Inc., which was known by the fictitious name of St. Augustine Transfer Company. They conducted ghost tours and history tours in the historic district of St. Augustine. No evidence was presented regarding

   Mr. Sexton's race or either Petitioners' age.

   
   

2. At the time of the incident giving rise to this proceeding, Diana Sexton had worked for Respondent for approximately one and a half years. Freddie Sexton has worked for the company in the same type of position for a shorter period of time. Petitioners are married to each other.

3. Petitioners drove carriages pulled by horses, and gave tours to the public. They sometimes stayed overnight at the barn owned by Respondent in order to water the horses. They did not

   have permission to stay at the barn, but Ms. Sexton considered it to be a benefit in exchange for watering the horses at night.

4. Diana Sexton acknowledged that Petitioners had been informed that they were expected to find another place to stay before the end of the "Nights of Lights" (although no explanation was provided regarding what time frame this entailed), but denied that Petitioners were ever told to leave or not to stay at the barn.

5. Employees hired by St. Augustine Transfer were usually hired as carriage drivers, stall people, or barn managers. Both stall people and barn managers were paid minimum wage. Carriage drivers, like waitresses, receive tips from customers as part of their pay. Generally, with tips, drivers are the highest paid employees of the business.

6. It would not be considered a promotion to go from a position as driver to either stall person or barn manager.

7. Petitioners did not work on December 25, 2007. They apparently spent the night at the barn the night before and left the work premises in the morning. At some time in the evening, Petitioners returned to the business premises, ostensibly to retrieve some of their belongings that were in the barn.

8. While they were present on the property, the police came, indicating that they had received a call complaining of a disturbance. Petitioners were believed to be the cause of the disturbance and were asked to leave. Petitioners refused to

   leave without speaking to Stuart Gamsey, and denied creating any type of disturbance. Eventually they left the premises at the insistence of the police. They claim they were not allowed to return to retrieve their belongings for several days, and were discharged from their jobs.

9. The evidence is in conflict over what, if anything, was occurring on the premises of the business the evening of December 25, 2007. However, the more credible admissible evidence indicates that at least two calls were made to Stuart Gamsey, the then owner of St. Augustine Transfer Co. The calls involved complaints about Petitioners' drinking, yelling, and generally creating a disturbance on the property. One call was made by police officers on the scene.

10. Mr. Gamsey had not given Petitioners, or any other employees, permission to stay on the premises when not working. He could not say whether there was actually a disturbance on the premises, but confirmed that in response to the calls he received, he asked the police to do "whatever it took" to get Petitioners to leave the property. His goal was simply to end whatever disturbance might be occurring.

11. Petitioners' employment was terminated by St. Augustine Transfer. It is not entirely clear from the evidence presented whether the December 25, 2007, incident formed the basis for the termination or whether other factors were involved. It is clear,

    however, that Petitioners resisted leaving the premises at a time when they did not have permission to be there.

12. Stuart Gamsey sold the business in the summer of 2008. He currently has no responsibility for the hiring practices of St. Augustine Transfer Co. or its successor.

13. No competent, credible evidence was presented indicating that any other employee was allowed to stay on the premises outside of work hours.

14. Petitioners also claim that Mr. Sexton was discriminated against based upon his marital status because someone, presumably another employee, left K-Y jelly in his carriage, and on one occasion, a patron tipped another employee to make sure she could ride in his carriage and engage in inappropriate behavior designed to seduce him. However, no competent, credible evidence was presented to show who placed the K-Y jelly in Mr. Sexton's carriage or for what purpose, if any, it was left. Likewise, no competent, credible evidence was presented to support the allegation that placing the patron in Mr. Sexton's carriage was for any discriminatory purpose.

15. No evidence was presented regarding any other proceedings of any type involving Petitioners and Respondent.

    CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this

    action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2008).

17. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice to "discharge or 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 the individual's race, color, religion, sex, national origin, age, handicap, or marital status." The Florida Civil Rights Act is patterned after Title VII of the Federal Civil Rights Act, and case law construing Title VII is persuasive when construing Chapter 760, Florida Statutes. Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA 2002).

18. Respondent is an employer as that term is defined in Section 760.02(6), Florida Statutes.

19. Direct evidence of discrimination, which is "composed of only the most blatant remarks, where intent could be nothing other than to discriminate," Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999), is not at issue in this case. Likewise, Petitioners have not submitted evidence of a pattern and practice of discrimination. Akfhami v. Carnival Cruise Lines, 305 F. Supp. 2d 1308, 1321 (S.D. Fla. 2004)(plaintiff must present evidence of a pattern and practice of differential treatment affecting other members of his or her class that is systematic as opposed to isolated, sporadic incidents).

20. To establish that Petitioners suffered a prima facie case of discrimination by disparate treatment, each Petitioner must demonstrate that he or she: 1) was a member of a protected class; 2) was qualified for the position; 3) suffered an adverse employment action; and 4) was replaced by a person outside her protected class or was treated less favorably than a similarly- situated individual outside his or her protected class. Dickinson v. Springhill Hospitals, Inc., 187 Fed. Appx. 937, 939 (11th Cir. 2006); Stephens v. Georgia Department of Transportation, 134 Fed. Appx. 320, 325 (11th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 724 (11th Cir. 2004); Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002).

21. Once a Petitioner establishes a prima facie case, the burden shifts to the employer to produce evidence that Respondent's actions were taken for a legitimate, non- discriminatory reason. Once the employer meets this burden of production, a Petitioner has the ultimate burden of showing that the articulated reason for the employer's decision is pre- textual. A Petitioner may meet this burden by pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered explanation. Brooks v. County Commission of Jefferson County, 446 F.3d 1160, 1162 (11th Cir. 2006); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272-1273 (11th Cir. 2002). However, a reason is not pretext for discrimination "unless it is shown both that the reason was

    false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Brooks, 446 F.3d

    at 1163.

    
    

22. In the original complaint filed with the Commission, Freddie Sexton alleged that he was discriminated against based upon his marital status, his sex, his age and his race (American Indian). The Petition for Relief alleged only marital discrimination. Whether or not Freddie Sexton intended to proceed on all four bases or on marital discrimination alone, he has not demonstrated a prima facie case.

23. Mr. Sexton did not testify and no evidence was presented regarding his age or his race. His gender and marital status were established and each are an identified class. Given that he was employed as a carriage driver, he is presumably qualified for the job. He suffered an adverse employment action in that he was terminated from his position as a carriage driver. However, no competent, credible evidence was presented regarding who replaced him in his position. Nor was any competent, credible evidence presented showing that he was treated less favorably than a similarly-situated individual outside his protected class. Accordingly, Freddie Sexton has failed to demonstrate a prima facie case of discrimination.

24. Ms. Sexton's original complaint with the Commission stated that she was discriminated against based upon her marital status and her age. Like Mr. Sexton's Petition for Relief, the

    only allegation stated in Diana Sexton's Petition for Relief is one of "marital discrimination."

25. Diana Sexton has demonstrated that she is a member of a protected class; that she was qualified for the position she held; and that she suffered an adverse employment action, i.e., being terminated from employment. However, she did not demonstrate that she was replaced by a person outside her class or that she was treated less favorably than a similarly-situated individual outside her protected class. Therefore, she has failed to prove a prima facie case of discrimination.

26. Both petitioners allege that younger, single employees were treated more favorably than they were. However, the more credible evidence is that it would not be a promotion to transfer from a position as driver to a position as barn manager or stall person. The more credible evidence indicates that the opposite is true. The best paying positions in the company were the positions that both Petitioners held.

27. Even assuming that Petitioners demonstrated a prima facie case of discrimination, Respondent produced evidence that the action against Petitioners was taken for a legitimate, non- discriminatory reason. Stuart Gamsey credibly testified that he did not want employees staying on the premises overnight and had not given Petitioners or any other employees permission to do so. He received repeated phone calls indicating that there was a disturbance on the property and that Petitioners were the cause

    of the disturbance. Whether or not Petitioners were actually drinking and creating a disturbance is irrelevant. The fact remains that they did not have permission to remain on the property when not working. Given the information he received from both employees and the police, Gamsey's reaction was reasonable.

28. Petitioners have not shown that the reason offered by Respondent was false and that discrimination was the real reason for their termination. Diana Sexton opined at hearing that there was simply no other logical explanation. Her conclusory belief, however, does not amount to competent, credible evidence that the reason for Petitioners' expulsion from the property or termination from employment was somehow a result of discrimination based upon their married status.

29. Finally, Respondent moved for attorney's fees and costs pursuant to Section 120.595, Florida Statutes, alleging that the complaints were alleged for the purposes of harassment. Section 120.595, Florida Statutes, provides in relevant part:

    (1)(b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.

    
    

    1. In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this

       subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same subject as the adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.

       
       

    2. In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.

       
       

    3. For the purpose of this subsection:

       
       

       1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.

       
       

30. No evidence was presented in this proceeding to support a finding that Petitioners filed these complaints or participated in these proceedings for an improper purpose. There is no indication that they have initiated any sort of litigation against Respondent before, or that the issues raised here have been the subject of any other litigation. Likewise, there was no evidence presented to support the premise that Petitioners filed this petitions for the purpose of harassing Respondent.

Petitioners truly believed they were subject to discrimination. They simply did not support their belief with any credible evidence. Accordingly, Respondent's Motion for Attorney's Fees pursuant to Section 120.595 should be denied.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered dismissing Petitioners' Petitions for Relief and denying Respondent's Motion for Attorney's Fees.

DONE AND ENTERED this 20th day of January, 2009, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 20th day of January, 2009.

COPIES FURNISHED:

Freddie J. Sexton Diana J. Sexton Post Office Box 105

St. Augustine, Florida 32084

Regina Sargeant, Esquire 2820 US 1 South, Suite F

St. Augustine, Florida 32086

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 08-004560

Orders for Case No: 08-004560