STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA ROBINSON,

vs.

Petitioner,

Case No. 18-4089

ATTRACTIONS LODGING LEISURE, INC., d/b/a ALL GUEST SERVICES,

Respondent.

/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018),1/ on November 29, 2018, by video teleconference at sites in Tallahassee and Altamonte Springs, Florida.

APPEARANCES

For Petitioner: Barbara G. Robinson, pro se

Post Office Box 332 Ocoee, Florida 34761

For Respondent: Jeffrey S. Hammer, Esquire

Jill S. Schwartz & Associates, P.A. 655 West Morse Boulevard, Suite 212 Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether Petitioner, Barbara Robinson, was subject to an unlawful employment practice by Respondent, Attractions Lodging

Leisure, Inc., d/b/a All Guest Services, in violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On July 27, 2017, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (the “Commission”) alleging that Respondent, Attractions Lodging Leisure, Inc., d/b/a All Guest Services (“All Guest”), violated the Florida Civil Rights Act (“FCRA”) by discriminating against her based on her age, race, and national origin.

On June 22, 2018, the Commission notified Petitioner that no reasonable cause existed to believe that All Guest had committed an unlawful employment practice.

On July 30, 2018, Petitioner filed a Petition for Relief with the Commission alleging a discriminatory employment practice.2/ The Commission transmitted the Petition to the Division of Administrative Hearings (“DOAH”) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on November 29, 2018. At the final hearing, Petitioner testified on her own behalf.

Petitioner’s Exhibit 1 and Composite Exhibit 2 were admitted into evidence. All Guest called Armando Vazquez as its witness. All Guest did not offer any exhibits.

A court reporter recorded the final hearing. Neither party ordered a transcript. At the close of the hearing, the parties

were advised of a ten-day time frame starting after the final hearing to file post-hearing submittals. At the final hearing, both parties agreed to an extension of the filing deadline until December 21, 2018, which was granted.3/ Both parties filed post- hearing statements, which were duly considered in preparing this

Recommended Order.

FINDINGS OF FACT

1. Petitioner requested this evidentiary hearing to prove her allegation that All Guest discriminated against her based on her age, national origin, and race. At the final hearing, Petitioner described herself as “a black Jamaican female over the age of forty.”4/

2. All Guest operates a tourism business in Orlando, Florida. Its business consists of placing sales representatives, or “concierges,” in hotel lobbies throughout the Orlando area. These concierges assist hotel guests by promoting and selling theme park tickets, answering questions about local attractions, and generally helping the guests feel happy about their stay. All Guest currently employs over 150 concierges in 75 hotels across Orlando.

3. All Guest hired Petitioner as a concierge in October 2012. All Guest assigned Petitioner to work in a specific hotel.

4. Petitioner was 48 years old at the time All Guest hired

   
   

   her.

   
   

5. Petitioner worked for All Guest from October 2012 until May 2018. By all accounts, Petitioner was a dependable worker with no noted deficiencies in her job performance. Testimony at the final hearing established that Petitioner was qualified to perform her duties as a concierge, and All Guest was pleased with her work. Petitioner remained in the position of concierge during her five years with All Guest.

6. Beginning as early as 2013, however, Petitioner became increasingly disenchanted by what she perceived to be All Guest’s preferential treatment of younger, white employees. At the final hearing, Petitioner recounted how she desired, but was not considered or selected for, several promotion opportunities. She complained that All Guest was promoting younger individuals who were not more qualified that herself.

7. To support her claim that All Guest (unlawfully) failed to promote her, Petitioner described the following incidents:

   1. All Guest promoted Schuyler McVicker to a Team Lead position within six months of his hiring, instead of offering the position to Petitioner. Mr. McVicker is a white male who is younger than Petitioner.

   2. All Guest promoted Jenn Janasiewicz to a Team Lead position for which Petitioner was not considered.

      Ms. Janasiewicz is a white female who is younger than Petitioner.

      
      

   3. In the summer of 2017, All Guest filled a Concierge Sales Manager position. Petitioner complained that All Guest did not approach her about applying for the opening.

   4. Petitioner also identified a position that All Guest filled with Andrea Romero. Like Petitioner, Ms. Romero is over the age of forty. However, she is approximately six years younger than Petitioner.

8. Petitioner asserted that she gave All Guest a lot to be happy about. Ticket sales consistently increased through her efforts. All Guest, however, never approached her about a promotion. Petitioner felt ignored, overlooked, and under- appreciated by All Guest’s failure to acknowledge her strong work ethic, as well as her contributions to its business. Petitioner declared that she deserved advancement based on her performance. Further, Petitioner never received a raise during her time with All Guest. Petitioner claimed that those individuals who All Guest promoted received higher wages than she did. (At the final hearing, no proof was offered establishing the actual amount of the other employees’ pay.)

9. As Petitioner became increasingly demoralized by her stagnant job status and low pay, in the latter part of 2016, she began looking for other employment. Ultimately, on May 28, 2018, Petitioner resigned from All Guest to accept a job that offered better financial opportunities.

   
   

10. Armando Vazquez, All Guest’s current General Manager, testified at the final hearing. Initially, Mr. Vazquez commented that Petitioner was a quality employee and a good concierge.

    Mr. Vazquez remarked that Petitioner did a great job working with her customers.

11. Mr. Vazquez explained that Petitioner’s position as concierge afforded her three avenues for “promotion.” First, Petitioner could transfer to a larger hotel with more guests to whom she could market and sell park tickets (thus receiving larger commission payments). Second, Petitioner could be promoted to a Team Lead position. Third, Petitioner could advance into a management position.

12. Mr. Vazquez explained that in All Guest’s business structure, a Team Lead essentially handles day-to-day operations. A manager, on the other hand, is involved in issues of greater complexity, including business strategy and planning. All Guest employs more Team Leads than managers. Therefore, Team Lead positions become available more frequently than managerial positions.

13. Despite the fact that All Guest was pleased with Petitioner’s performance, Mr. Vazquez testified that All Guest did not consider Petitioner for promotion opportunities for several reasons. First, during her five years with the company, Petitioner never expressed to anyone at All Guest, including

    
    

    Mr. Vazquez, that she was interested in a promotion. Therefore, All Guest was not reasonably aware that Petitioner desired to advance beyond her concierge job. Mr. Vazquez elaborated that during Petitioner’s employment, All Guest did not routinely post or publish specific promotion opportunities, except on one occasion. In June 2017, Mr. Vazquez sent out an e-mail to company employees announcing an open managerial position and articulated that, “If you are interested . . . please contact me immediately.” Petitioner did not apply for the position.

    Neither did she communicate her interest in the opening with anyone in All Guest management. As a result, All Guest did not consider her for the managerial position.5/

14. Secondly, All Guest was concerned with the manner in which Petitioner interacted with her coworkers, Team Leads, and managers. Mr. Vazquez expressed that Petitioner was not a “team player.” He testified that, on occasion, Petitioner’s treatment of her coworkers was disrespectful and insubordinate.

    Mr. Vazquez further relayed that Petitioner did not take criticism well. At the final hearing, Mr. Vazquez described several instances when All Guest felt that Petitioner’s conduct was less than satisfactory, including:

    1. November 10, 2014: Petitioner’s e-mail exchange with management. Mr. Vazquez pointed to Petitioner’s confrontational and impertinent tone.

       
       

    2. September 27 and 28, 2016: Petitioner’s e-mail communication with Team Lead Ricardo Bazan. Petitioner’s comments prompted Mr. Bazan to write, “I find your email to be rude and disrespectful.”

    3. October 13, 2016: Petitioner’s e-mails to Mr. Vazquez and Rick Schiebel (Director of Sales) regarding Petitioner’s request for time off. Petitioner’s e-mails caused Mr. Schiebel to reply, “Why do you have to be so negative and nasty to our team, including me?” and “I expect you to treat all managers and leads with dignity and respect.”

    4. October 18, 2017: Petitioner e-mailed Mr. Vazquez demanding that her manager must have “a valid REASON to come to [her] site to discuss any work related information, it is unacceptable for him to tell me he will be sitting down in my work site space to work on his laptop.”

    5. November 19, 2017: Through e-mail, Concierge Manager Andrea Romero reported a conversation with Petitioner in which Petitioner exclaimed that Mr. Vazquez “should go to management classes because he does not know how to run this company.”

15. Finally, Mr. Vazquez asserted that Petitioner had issues with tardiness, as well as refused to commit to working at least one evening shift a week. (At the final hearing, Petitioner conceded that she was occasionally late for work.

    But, she adamantly denied that she had any pattern of tardiness,

    
    

    or ever failed to show up at all. All Guest did not refute Petitioner’s claim that All Guest never imposed or recorded any formal discipline on Petitioner for these alleged deficiencies in her work performance.)

16. Based on the above reasons, Mr. Vazquez maintained that All Guest was neither inclined nor motivated to extemporaneously promote Petitioner to a higher position during the time she worked with the company.

17. Regarding Petitioner’s complaints that younger coworkers were promoted instead of her, Mr. Vazquez offered several justifications. Mr. Vazquez explained that All Guest selected Mr. McVicker for a Team Lead position because his training matched All Guest’s business needs. Specifically, Mr. McVicker knew how to process transactions from the travel website Expedia, which distinguished him from Petitioner and others. Further, Mr. McVicker was a supervisor at his prior employment which qualified him to assume a part-time manager position with All Guest. Similarly, All Guest promoted

    Ms. Janasiewicz because her skill set matched All Guest’s business needs in a way that Petitioner’s did not.

18. Finally, Mr. Vazquez explained that Ms. Romero had previously worked with All Guest for a considerable length of time, then resigned. When Ms. Romero subsequently expressed interest in returning to the company, All Guest believed that she

    
    

    was an excellent candidate for a managerial position given her prior experience and skills.

19. Mr. Vazquez argued that Petitioner left All Guest on her own accord (for a better job opportunity), not because All Guest forced her to resign. Mr. Vazquez relayed that, prior to Petitioner leaving All Guest, he received a telephone call from a prospective employer in the hospitality industry who requested an employment reference. Mr. Vazquez testified that he provided Petitioner a positive reference.

20. Mr. Vazquez denied that All Guest made any promotion decisions or refused to consider Petitioner’s advancement in the company, based on her age, race, or national origin.

21. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that All Guest discriminated against Petitioner based on her age, race, or national origin. Accordingly, Petitioner failed to meet her burden of proving that All Guest committed an unlawful employment action against her in violation of the FCRA.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y-4.016.

    
    

23. Petitioner brings this action charging that All Guest discriminated against her in violation of the FCRA. Petitioner’s claim centers on her allegation that All Guest failed to promote her based on her age.6/ The FCRA protects employees from age discrimination in the workplace. See § 760.10-.11, Fla. Stat.

    Section 760.10 states, 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, pregnancy, national origin, age, handicap, or marital status.

    
    

24. Section 760.11(7) permits a party for whom the Commission determines that there is not reasonable cause to believe that a violation of the FCRA has occurred to request an administrative hearing before DOAH. Following an administrative hearing, if the Administrative Law Judge (“ALJ”) finds that a discriminatory act has occurred, the ALJ “shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay.” § 760.11(7), Fla. Stat.

25. The burden of proof in this administrative proceeding, absent a statutory directive to the contrary, is on Petitioner as the party asserting the affirmative of the issue. Dep’t of

    
    

    Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); see

    
    

    also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)(“The general

    rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”). The preponderance of the evidence standard is applicable to this matter. See § 120.57(1)(j), Fla. Stat.

26. Regarding age discrimination, the FCRA was derived from two federal statutes, Title VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e, et seq.; and the Age Discrimination

    in Employment Act (“ADEA”), 29 U.S.C. § 623. See Brown Distrib. Co. of W. Palm Beach v. Marcell, 890 So. 2d 1227, 1230 n.1

    (Fla. 4th DCA 2005). Florida courts apply federal case law interpreting Title VII and the ADEA to claims arising out of the FCRA. Id.; see also City of Hollywood v. Hogan, 986 So. 2d 634,

    641 (Fla. 4th DCA 2008); and Sunbeam TV Corp. v. Mitzel, 83 So. 3d 865, 867 (Fla. 3d DCA 2012).

27. Discrimination may be proven by direct, statistical, or circumstantial evidence. See Valenzuela v. GlobeGround N. Am.,

    LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009). Direct evidence is

    
    

    evidence that, if believed, would prove the existence of discriminatory intent behind the employment decision without any inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno, 115 F.3d

    
    

    1555, 1561 (11th Cir. 1997). Courts have held that “‘only the most blatant remarks, whose intent could be nothing other than to discriminate . . .’ will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted).

28. Petitioner presented no direct evidence of age discrimination on the part of All Guest. Similarly, the record in this proceeding contains no statistical evidence of discrimination related to All Guest’s decision not to promote her.

29. In the absence of direct or statistical evidence of discriminatory intent, Petitioner must rely on circumstantial evidence of discrimination to prove her case. For discrimination claims involving circumstantial evidence, Florida courts follow the three-part, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.

    Valenzuela, 18 So. 3d at 21-22; see also St. Louis v. Fla. Int’l

    
    

    Univ., 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

    
    

30. Under the McDonnell Douglas framework, a petitioner

    
    

    bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. See

    McDonnell Douglas, 411 U.S. at 802-04; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a

    prima facie case is not difficult, but rather only requires the

    
    

    plaintiff “to establish facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d at 1562.

31. To establish a prima facie case of age discrimination in a promotion decision, Petitioner must demonstrate that 1) she is a member of a protected class (age)7/; 2) she was qualified for the position sought; 3) she was rejected for the position; and

    4) the position was filled by a worker who was younger than her.

    
    

    Hogan, 986 So. 2d 641; and Miami-Dade Cty. v. Eghbal, 54 So. 3d 525, 526, (Fla. 3d DCA 2011).8/

32. Regarding the first element, Hogan explains that “[a]ge

    
    

    discrimination statutes protect only employment decisions which disadvantage an older worker in favor of a younger worker. . . .

    To prove a prima facie case the McDonnell Douglas framework

    
    

    requires that the [petitioner] prove that a younger person was hired or promoted in lieu of the older worker.” Hogan, 986 So. 2d

    at 642. Florida and federal case law further instruct that the petitioner’s age must have “actually played a role in [the employer’s decision-making] process and had a determinative influence on the outcome.” Hogan, 986 So. 2d at 641; Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993).

    To prevail on an ADEA claim, the employee must prove, by a preponderance of the evidence, that the employer’s adverse employment action would not have occurred “but for” the employee’s age. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

    
    

    180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009); Rodriguez

    
    

    v. Cargo Airport Servs. USA, LLC, 648 F. App’x 986, 989 (11th Cir. 2016).

33. If Petitioner establishes a prima facie case, she creates a presumption of discrimination. At that point, the burden shifts to the employer to articulate a legitimate, non- discriminatory reason for taking the adverse action. Valenzuela,

    18 So. 3d at 22. The reason for the employer’s decision should be clear, reasonably specific, and worthy of credence. Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).

    The employer has the burden of production, not the burden of persuasion, to demonstrate to the finder of fact that the decision was non-discriminatory. Flowers v. Troup Cnty., 803 F.3d 1327, 1336 (11th Cir. 2015). This burden of production is “exceedingly light.” Holifield, 115 F.3d at 1564. The employer

    only needs to produce evidence of a reason for its decision. It is not required to persuade the trier of fact that its decision was actually motivated by the reason given. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993).

34. If the employer meets its burden, the presumption of discrimination disappears. The burden then shifts back to Petitioner to prove that the employer’s proffered reason was not the true reason but merely a “pretext” for discrimination.

    
    

    Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.

    
    

    1997); Valenzuela, 18 So. 3d at 25.

    
    

35. To establish “pretext,” the petitioner must show “directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the . . . decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Tex. Dep’t of Cmty. Aff. v.

    Burdine, 450 U.S. 248, 252-256 (1981)); Kogan v. Israel, 211

    
    

    So. 3d 101, 109 (Fla. 4th DCA 2017). The proffered explanation is unworthy of belief if the petitioner demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538; see also Reeves v.

    Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The

    
    

    petitioner must prove that the reasons articulated were false and that the discrimination was the real reason for the action. City

    of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary’s Honor Ctr., 509 U.S. at 515)(“[A] reason

    cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination

    was the real reason.”).

    
    

36. Despite the shifting burdens of proof, “the ultimate burden of persuading the trier of fact that the defendant

    
    

    intentionally discriminated against the [petitioner] remains at all times with the [petitioner].” Burdine, 450 U.S. at 253; Valenzuela, 18 So. 3d at 22.

37. Applying the burden-shifting analysis to the facts found in this matter, Petitioner established a prima facie case that All Guest discriminated against her based on her age. Petitioner sufficiently demonstrated that: 1) she is a member of a protected class (Petitioner was of a different age (older) than the employees All Guest promoted); 2) she was qualified to hold her position at All Guest (Petitioner was indisputably a quality concierge); 3) she was subjected to an adverse employment action (Petitioner was not promoted to an open Team Lead or managerial position during her employment with All Guest); and 4) All Guest treated similarly-situated employees differently or less severely (All Guest promoted Mr. McVicker, Ms. Janasiewicz, and Ms. Romero – all younger employees than her).

38. However, despite the fact that Petitioner established a prima facie case of age discrimination, All Guest articulated legitimate, non-discriminatory reasons for the adverse employment action about which Petitioner complains. All Guest’s burden to refute Petitioner’s prima facie case is light. All Guest met this burden by persuasively testifying that its decisions to promote the younger employees were not based on their age, but because their skill sets matched All Guest’s needs. All Guest

    
    

    also provided credible evidence that Petitioner exhibited certain personality traits (confrontation with supervisors) that caused All Guest to question whether she was appropriately suited to fill a Team Lead or managerial position.

39. Completing the McDonnell Douglas burden-shifting

    
    

    analysis, Petitioner did not prove, by a preponderance of the evidence, that All Guest’s stated reasons for not promoting her were merely a “pretext” for unlawful discrimination. The record in this proceeding does not support a finding or legal conclusion that All Guest’s proffered explanation was false or not worthy of credence. Mr. Vasquez persuasively attested that All Guest’s decisions to promote the younger employees were based on the skills those employees offered the company, not because of their age. Conversely, while Petitioner fixedly asserted that All Guest treated her less favorably than other employees, the evidence does not establish that the reason All Guest did not promote her was in any way based on, or influenced by, her age (or race or national origin). Petitioner’s claim is also hindered by the fact that she never affirmatively applied for, or otherwise sought, a Team Lead or manager position. Therefore, she did not prove that All Guest purposefully rejected her attempt to advance in the company.

40. Accordingly, even though Petitioner presented enough evidence to establish a prima facie case of age discrimination,

    
    

    she did not produce sufficient evidence to prove that All Guest treated her differently because of her age. Consequently, Petitioner did not meet her ultimate burden of proving, by a preponderance of the evidence, that All Guest’s decisions affecting her employment were based on its discriminatory intent.

41. The undersigned is also mindful that in a proceeding under the FCRA, the court is “not in the business of adjudging whether employment decisions are prudent or fair. Instead, [the court’s] sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming

    Supermarkets of Fla., Inc., 196 F.3d at 1361. Not everything that makes an employee unhappy is an actionable adverse action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir.

    2001). For example, an employer may fire an employee “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Commc’ns, 738

    F.2d 1181, 1187 (11th Cir. 1984). Moreover, it has been consistently held that in reviewing employers’ decisions, the court’s role is to prevent unlawful employment practices and “not to act as a super personnel department that second-guesses employers’ business judgments.” Wilson v. B/E Aerospace, Inc.,

    376 F.3d 1079, 1092 (11th Cir. 2004). An employee cannot succeed by simply quarreling with the wisdom of the employer’s reasons.

    
    

    Chapman v. AI Transp., 229 F.3d 1012 (l1th Cir. 2000); see also

    
    

    Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1341 (11th Cir. 2000)(“[I]t is not the court’s role to second-guess the wisdom of an employer’s decisions as long as the decisions are not racially motivated.”).

42. At the final hearing, Petitioner was clearly frustrated by All Guest’s lack of appreciation for her years of quality service. Mr. Vazquez readily acknowledged Petitioner’s commendable performance. However, other than periodic, minor commission bonuses, All Guest offered no evidence that it ever recognized Petitioner’s personal value to the company.

43. Nonetheless, the evidence and testimony in the record does not, either directly or circumstantially, link Petitioner’s job dissatisfaction with actual discriminatory animus. On the contrary, All Guest presented plausible explanations for its promotion decisions, and Petitioner did not demonstrate that those explanations were a “pretext” for discrimination. While Petitioner believes that she was the more meritorious choice for promotion, she did not establish that All Guest would not have promoted the younger employees “but for” the fact that they were younger than her. Consequently, Petitioner failed to meet her ultimate burden of proving that All Guest discriminated against her based on her age. Accordingly, Petitioner’s Petition for Relief must be dismissed.

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 Petitioner, Barbara Robinson, did not prove that Respondent, All Guest, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice.

DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.

ENDNOTES

1/ All statutory references are to Florida Statutes (2018), unless otherwise noted.

2/ At the final hearing, All Guest moved to dismiss Petitioner’s Petition for Relief based on the fact that the Commission did not receive the petition within 35 days of the date of the Notice of Determination: No Reasonable Cause. Pursuant to sections 760.11(7) and 120.569(2)(c) of the Florida Statutes, Respondent

argued that the Petition was not timely filed and must be dismissed.

Under section 760.11(7), an aggrieved party complaining of an unlawful employment practice must request an administrative hearing within 35 days of the date of the Commission’s determination of no reasonable cause. See Fla. Admin. Code

R. 60Y-5.008. Thereafter, the request for hearing (the Petition for Relief), and proceedings thereupon, are governed by the provisions of Florida Administrative Code Chapter 28-106.

Rule 28-106.111(4) directs that any person who fails to file a written request for a hearing within the required time frame waives the right to request a hearing on such matters. A request for hearing that has been untimely filed shall be dismissed.

§ 120.569(2)(c), Fla. Stat.

The date of the Commission’s Notice of Determination: No Reasonable Cause, to Petitioner was June 22, 2018. Therefore, to meet the 35-day filing requirement, Petitioner was required to file her Petition for Relief with the Commission no later than Friday, July 27, 2018. The Commission received Petitioner’s Petition for Relief on Monday, July 30, 2018. Consequently, pursuant to section 120.569(2)(c), the Petition for Relief must be dismissed. See Cann v. Dep’t of Child. & Fam. Servs., 813

So. 2d 237 (Fla. 2d DCA 2002); and Whiting v. Fla. Dep’t of Law Enf., 849 So. 2d 1149 (Fla. 5th DCA 2003).

However, the doctrine of equitable tolling may excuse an untimely filed request for hearing under the appropriate facts.

§ 120.569(2)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.111(4).

See Williams v. Dep’t of Corr., 156 So. 3d 563, 565 (Fla. 5th DCA 2015)(“The doctrine of equitable tolling can be applied to extend an administrative filing deadline.”). Under the doctrine of equitable tolling, a late-filed petition should be accepted when a party “has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum,” provided that the opposing party will suffer no prejudice.

Machules v. Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988); Madison Highlands, LLC v. Fla. Hous. Fin. Corp., 220 So. 3d 467,

472 (Fla. 5th DCA 2017).

Based on the evidence in the record, Petitioner established a defense of equitable tolling of the 35-day filing deadline. At the final hearing, Petitioner produced evidence that she mailed her Petition for Relief to the Commission on Wednesday, July 25,

2018, by certified U.S. Postal Service. In order to meet the 35- day filing requirement, Petitioner specifically paid for two-day delivery so that her request for hearing would arrive at the Commission on Friday, July 27, 2018. For some unknown reason, the U.S. Postal Service did not deliver Petitioner’s package to the Commission until Monday, July 30, 2018.

Based on these circumstances, the undersigned finds that Petitioner established that she was “prevented from asserting [her] rights in some extraordinary way.” The evidence shows that Petitioner took reasonable and commonly accepted steps to transmit her Petition for Relief to the Commission. Petitioner specifically paid for a delivery date that would ensure that the Commission timely received her filing. Unfortunately, the U.S. Postal Service let her down. The undersigned finds that the U.S. Postal Service’s delinquency was beyond Petitioner’s control and should not be held against her. The undersigned further finds that All Guest did not suffer prejudice from the three-day delay between the date the Petition for Relief was due to the Commission and the date the document was actually delivered.

Accordingly, because equitable tolling provides an exception to the filing deadline in this case, Petitioner’s request for an administrative hearing to review her Petition for Relief is timely filed.

3/ By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin.

Code R. 28-106.216(2).

4/ Petitioner testified that she was born in February 1964.

5/ At the final hearing, Petitioner claimed that All Guest announced this job opening because she had recently filed a charge of discrimination. Mr. Vazquez explained that, on the contrary, All Guest advertised this position because it was a managerial position, as opposed to a team lead position.

6/ In her initial Employment Complaint of Discrimination, Petitioner identified the cause of her discrimination as race, national origin, age, and retaliation. However, in her Petition for Relief, as well as her testimony at the final hearing, Petitioner fundamentally complains of age discrimination.

Accordingly, the undersigned analyzed the facts found in this matter as an age discrimination case.

The undersigned notes, however, that the legal analysis used to determine race, national origin, and retaliation discrimination is very similar (if not identical) to that applied to age discrimination, including the principle that Petitioner bears the ultimate burden of persuading the trier of fact that All Guest intentionally discriminated against her based on an unlawful reason. As concluded below, the facts found in this matter do not establish that All Guest’s failure to promote her was based on any of the factors marked on her Employment Complaint of Discrimination.

7/ While the federal ADEA (on which the FCRA is modeled) specifically protects employees aged 40 and older, the FCRA does not set a minimum age for a classification of persons protected thereunder. The Commission has determined that the age “40” has no significance in interpreting the FCRA. Accordingly, the first element for establishing a prima facie case of age discrimination under the FCRA is a showing that individuals similarly-situated of a “different” age, as opposed to a “younger” age, were treated more favorably. See Downs v. Shear Express, Inc., Case No. 05- 2061 (Fla. DOAH March 14, 2006), modified, Order No. 06-036 (Fla. FCHR May 24, 2006); Boles v. Santa Rosa Cnty. Sheriff’s Off., Case No. 07-3263 (Fla. DOAH December 5, 2007), modified, Order No. 08-013 (Fla. FCHR Feb. 8, 2008); Ellis v. Am. Aluminum, Case No. 14-5355, modified, Order No. 15-059 (Fla. FCHR Sep. 17, 2015). Florida case law is silent on the matter.

8/ In an age discrimination matter not involving a promotion, the prima facie case has been stated more broadly as: 1) the plaintiff is a member of a protected class (age); 2) the plaintiff is otherwise qualified for the position; 3) the plaintiff was subjected to an adverse employment action; and

4) the employer treated employees of a different age more favorably than the plaintiff was treated. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

Barbara G. Robinson Post Office Box 332 Ocoee, Florida 34761 (eServed)

Linda Piesko

Attractions Lodging, Inc., d/b/a All Guest Services

Suite F5

4303 Vineland Road

Orlando, Florida 32811

Jeffrey S. Hammer, Esquire

Jill S. Schwartz & Associates, P.A. Suite 212

655 West Morse Boulevard Winter Park, Florida 32789 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

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: 18-004089

Orders for Case No: 18-004089