STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LENEVE PLAISIME,

Petitioner,

vs.

MARRIOTT KEY LARGO RESORT,

Respondent.

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) Case No. 02-2183

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RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on August 7, 2002, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Ralph S. Francois, Esquire

1820 Northeast 163rd Street, Suite 106 North Miami Beach, Florida 33162

For Respondent: Susan L. Dolin, Esquire

Rothstein, Rosenfeldt, Dolin & Pancier, P.A.

300 Southeast 2nd Street

300 Las Olas Place, Suite 860 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.

PRELIMINARY STATEMENT

In a Charge of Discrimination filed with the Florida Commission on Human Relations, Petitioner Leneve Plaisime accused his former employer, Respondent Marriott Key Largo Bay Resort, of having terminated his employment as a room service attendant because of his national origin. The Florida Commission on Human Relations investigated Petitioner’s claim and, on April 24, 2002, issued a letter stating that it could find no reasonable cause to believe that an unlawful employment practice had occurred. Thereafter, Petitioner timely filed a Petition for Relief with the FCHR in which he repeated the allegation that Respondent had fired him because he is of Haitian descent.

On May 24, 2002, the FCHR transferred the matter to the Division of Administrative Hearings for further proceedings, and an administrative law judge (“ALJ”) was assigned to the case.

The ALJ scheduled a final hearing for August 7, 2002.

At the final hearing, Petitioner testified on his own behalf and called one witness, a former employee of Respondent’s named Fito Jean. Petitioner moved one exhibit (an itemized statement of his Social Security earnings for the years 1997-98) into evidence. During its case, Respondent presented the testimony of Tina Herman, a human resources manager for

Respondent. Respondent also introduced two exhibits, numbered 1 and 2, into evidence.

The final hearing transcript was not filed with DOAH. Each party timely submitted a proposed recommended order in accordance with the Order Regarding Proposed Recommended Orders that was issued on January 21, 2003.

FINDINGS OF FACT

1. Petitioner Leneve Plaisime (“Plaisime”), whose country of origin is Haiti, was employed as a busboy and room service attendant at the Marriott Key Largo Bay Resort (“Marriott”)1 from 1995 to 1997.

2. On September 13, 1997, upon returning to work after a vacation of several weeks, Plaisime was fired by a manager named Eric Sykas who said to him: “There is no job for you because the owner says he’s not interested in Haitians.”2 This statement was overheard by a co-worker of Plaisime’s named Fito Jean, who testified at the final hearing, corroborating Plaisime’s account.3

3. In around the middle of October 1997 (approximately one month after his discharge), Plaisime found a new job at Tak Security Corporation (“Tak”). Evidence introduced by Plaisime shows that he earned $7,862.52 at Marriott in 1997, which reflects an average monthly wage of about $925. Had he worked the entire year at Marriott, Plaisime would have earned a total

   of approximately $11,100. In contrast, working for Tak in 1998 Plaisime earned $11,396 (or approximately $950 per month)——a 2.7% increase in his annual income. There is no evidence showing what Plaisime’s likely income would have been in 1998 had he remained in the employ of Marriott.

   Ultimate Factual Determinations

   
   

4. Marriott discharged Plaisime because of his national origin. Thus, Marriott committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes.

5. The actual economic loss that Plaisime suffered as a result of Marriott’s unlawful discrimination against him was one month’s pay, or $925.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings (“DOAH”) has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

7. It is unlawful for an employer to discharge or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, based on the employee’s race, gender, or national origin. Section 760.10(1)(a), Florida Statutes.

8. Federal anti-discrimination laws may properly be used for guidance in evaluating the merits of claims arising under Section 760.10, Florida Statutes. See Brand v. Florida Power

   Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

9. Plaisime’s complaint that Marriott terminated his employment because of his national origin amounts to a claim of disparate treatment,4 which requires proof of discriminatory intent either through direct or circumstantial evidence. E.g. Denney v. The City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. E.g. id.; Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997).

10. Because direct evidence is usually not available, claimants typically must rely upon circumstantial evidence of discrimination, the presentation of which is governed by the familiar McDonnell Douglas framework of elements and shifting burdens.5 This case is atypical in that Plaisime proved Marriott’s discriminatory intent with direct evidence——namely, Mr. Sykas’s statement——obviating the need for the McDonnell Douglas paradigm.6

    Is Plaisime’s Claim Time-Barred?

    
    

11. Marriott urges that Plaisime’s claim is time-barred, invoking an affirmative defense that must be examined in some detail.

12. The starting point is Section 760.11(1), Florida Statutes, which provides that any person aggrieved by an unlawful employment practice may file a complaint (commonly called a “Charge of Discrimination”) with the Florida Commission on Human Relations (“FCHR”) within 365 days after the alleged violation. Failure to do so bars the claim under state law. See St. Petersburg Motor Club v. Cook, 567 So. 2d 488, 489-90 (Fla. 2d DCA 1990); Kourtis v. Eastern Airlines, 409 So. 2d 139,

    140 (Fla. 4th DCA 1982).

    
    

13. When the FCHR transmitted Plaisime’s Petition for Relief to DOAH, it included a document that appears to be a copy of Plaisime’s Charge of Discrimination.7 This latter instrument bears a date stamp purporting to show that the FCHR received the document on October 5, 1998. (The FCHR is required by law to “clearly stamp [the filing date] on the face” of all complaints filed with the agency. See Section 760.11(1), Florida Statutes.) If, in fact, Plaisime’s Charge of Discrimination was filed no sooner than October 5, 1998, then his claim (which is based on a violation that took place on September 13, 1997) was brought outside the prescribed 365-day period and hence is stale, as Marriott maintains.

14. There are some potential problems with Marriott’s affirmative defense, however, that cannot be ignored. One is that Marriott raised the statute of limitations defense for the

    first time at hearing. Having failed to assert this affirmative defense in a responsive pleading, it is possible that Marriott waived the issue.

15. On this point, Rule 60Y-5.008(5), Florida Administrative Code, seems to be instructive, for it provides:

    (5) Answer.

    1. Each respondent shall file an answer with the Commission within 20 days of service of the petition.

    2. The answer shall include a specific admission, denial, or explanation of each allegation of the petition; or if the respondent is without knowledge thereof, it shall so state, in which case such statement shall operate as a denial. Admissions or denials may be made to all or part of a particular allegation.

    3. The answer shall include a specific, detailed statement of any affirmative defense. Failure to plead an affirmative defense shall constitute a waiver of that defense.

    4. If a respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition. Any allegation within the petition which is not denied in the answer shall be deemed admitted.

    5. The filing of a motion to dismiss shall not toll the time for filing an answer.

    
    

    (Emphasis added). If this rule were applicable, Marriott’s affirmative defense could be deemed waived.

16. There is a serious question, however, whether Rule 60Y-5.008(5), Florida Administrative Code, remains in effect, even though it remains in the book. The reason is that in 1996

    the legislature directed the Administration Commission to promulgate Uniform Rules of Procedure that, effective July 1, 1998, would serve as the rules of procedure for each agency subject to the Administrative Procedure Act, except to the extent the Administration Commission chose to grant special, agency-specific exceptions upon petitions therefor. See Section 120.54(5)(a), Florida Statutes.

17. The Administration Commission complied with the legislative mandate, adopting Uniform Rules of Procedure, Chapters 28-101 though 28-110, Florida Administrative Code, on April 1, 1997. See Department of Corrections v. Saulter, 742 So. 2d 368, 369 (Fla. 1st DCA 1999). According to the First DCA, the Uniform Rules of Procedure superceded all “non-uniform” procedural rules no later than July 1, 1998, by operation of law. Id. Indeed, the court described Section 120.54(5)(a), Florida Statutes, as a “legislative repeal” of such preexisting rules of procedure. Id. at 370.8

18. The FCHR, without question, is an agency subject to Chapter 120, Florida Statutes. The legislature has not excused the FCHR from obeying Section 120.54(5), Florida Statutes. Nor has the Administration Commission granted the FCHR any exceptions from the Uniform Rules of Procedure, as evidenced by the absence of a separate chapter in the FCHR’s rules identifying any such exceptions. See Section 120.54(5)(a)3.,

    Florida Statutes (Approved exceptions to the Uniform Rules of Procedure must be published in a separate chapter in the Florida Administrative Code and clearly delineated as exceptions.).

    Thus, as a matter of law the Uniform Rules of Procedure are the FCHR’s rules of procedure, superceding the agency’s non-uniform rules at least to the extent that the latter fall within the subject matter or scope of the Uniform Rules of Procedure.9

19. The Uniform Rules of Procedure have something to say about answers——though not much. Rule 28-106.203, Florida Administrative Code, provides in its entirety: “A respondent may file an answer to the petition.”

20. Because the filing of an answer is permissive under Rule 28-106.203 but mandatory under the FCHR’s Rule 60Y- 5.008(5), the non-uniform rule is in conflict with the Uniform Rules of Procedure and cannot be enforced, at least to the extent of such direct conflict.10

21. In contrast to answers, affirmative defenses are not mentioned in the Uniform Rules of Procedure, perhaps because responsive pleadings are not required to be filed thereunder. Arguably, therefore, those portions of Rule 60Y-5.008(5) that concern the pleading of affirmative defenses remain in effect. This argument is ultimately unpersuasive, however, because, first, it is clear that the topic of affirmative defenses falls within the subject matter or scope of Rule 28-106.203, Florida

    Administrative Code (since affirmative defenses are normally asserted in answers), and, second, the waiver provision of Rule 60Y-5.008(5)(c), if enforced, would make the filing of an answer mandatory for any party who wanted to assert an affirmative defense, in contravention of Rule 28-106.203.

22. Accordingly, it is concluded that Rule 60Y-5.008(5), Florida Administrative Code, was superceded by Rule 28-106.203 and, consequently, is a nullity.

23. Because Rule 60Y-5.008(5) does not apply, and because nothing in the Uniform Rules of Procedure requires respondents to plead affirmative defenses, it is concluded that Marriott’s failure to plead the statute of limitations did not result in a waiver of the defense.

24. Marriott is not out of the woods, however, because of these facts: Neither party moved to introduce Plaisime’s Charge of Discrimination into evidence at hearing, and neither requested the undersigned to take official recognition of the instrument.

25. It is fundamental that findings of fact in proceedings under Chapter 120 must be based “exclusively on the evidence of record and on matters officially recognized.” Section 120.57(11)(j), Florida Statutes. Without Plaisime’s Charge of Discrimination, which is not in evidence and was not officially recognized, there is no competent and persuasive proof of the

    precise date that Plaisime’s complaint was filed with the FCHR. And without evidence of such date, it cannot be determined whether Plaisime’s complaint was timely filed under Section 760.11(1), Florida Statutes, or not.

26. The burden of proof as to an affirmative defense is on the party asserting the defense. See, e.g., Captains Table,

Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968). Marriott failed to carry its burden to prove that Plaisime’s Charge of Discrimination was untimely.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order declaring that Marriott discharged Plaisime on the basis of his national origin, in violation of Section 760.10(1)(a), Florida Statutes; prohibiting Marriott from committing further such violations; and awarding Plaisime $925 to relieve the effects of the unlawful discrimination that Marriott perpetrated against him.

DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 14th day of February, 2003.

ENDNOTES

1/ Although Marriott is named as Respondent in this case, the evidence suggests that Plaisime’s employer was actually a corporation called GB Holdings, Inc., which seems to have done business as or been affiliated with Atlantia Holdings, Resort Key Largo Enterprises, or both. There is insufficient evidence in the record as to the corporate structure to make any specific findings in this regard. At any rate, because “Marriott” appeared through counsel, and because no objection has been raised concerning the identity of the responding party, the undersigned deems Marriott to have been the proper Respondent for purposes of this proceeding.

2/ Marriott did not adduce any evidence that Mr. Sykas never made this remark. To find that Mr. Sykas did not utter this statement would require that the undersigned refuse to believe the two witnesses who testified credibly that he did. Because the witnesses did not appear to be lying, and because their unrebbutted testimony about Mr. Sykas was not inherently incredible, unreasonable, or illogical, the undersigned accepts it.

3/ At hearing, Marriott objected to testimony about Mr. Sykas’s remark on the ground that such violated the hearsay rule. These objections were overruled because Plaisime did not offer Mr.

Sykas’s statement to prove the truth of any matter asserted,

e.g. that the owner was not interested in Haitians or had said as much. See Section 90.801(1)(c), Florida Statutes (definition of “hearsay”). The evidential value of the statement, obviously, lies not in its “truth” but rather in the mere fact that it was uttered, for Mr. Sykas’s “explanation” is direct proof that Plaisime’s termination was the product of discrimination against Haitians. The statement, in other words, was effectively a “verbal act” to which the law attaches consequences. See McCormick on Evidence Section 249 (Third Edition); cf. National Labor Relations Board v. H. Koch and Sons, 578 F.2d 1287, 1290-91 (9th Cir. 1978)(oral statements constituting offer and acceptance are not hearsay when offered to prove that contract was made).

Moreover, even if Mr. Sykas’s declaration were hearsay, it clearly would be admissible as an “admission” under Section 90.803(18)(d), Florida Statutes. That Mr. Sykas attributed the discriminatory sentiment to “the owner” is of no moment; the gravamen of the communication——“you’re fired because you’re Haitian”——is what matters, not the purported source of the anti- Haitian sentiment. And, of course, the “owner’s” statement, assuming it were hearsay-within-hearsay, would be an admission pursuant to Section 90.803(18)(d), as well, making Mr. Sykas’s entire out-of-court utterance admissible under multiple theories.

4/ Plaisime has not attempted, through the introduction of statistics or other evidence, to prove intentional discrimination pursuant to the “pattern or practice” theory, which is separate from the “disparate treatment” theory under which he has traveled. E.g. Denney v. The City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). For this reason, the fact that Marriott may have employed many persons of Haitian origin, as it attempted to prove at hearing and has since argued, is irrelevant.

5/ In McDonnell Douglas Corp. v. Green, 4ll U.S. 792, 802-03 (1973), the Supreme Court of the United States articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial evidence. See also, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993).

Pursuant to this analysis, the plaintiff has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to

establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff’d, 679 So. 2d 1183 (1996)(citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).

If, however, the plaintiff succeeds in making a prima facie case, then the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this burden of rebutting the plaintiff's prima facie case, then the plaintiff must demonstrate that the proffered reason was not the true reason but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.

In Hicks, the Court stressed that even if the trier of fact were to reject as incredible the reason put forward by the defendant in justification for its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question whether the defendant intentionally had discriminated against him. Hicks, 509 U.S. at 511. “It is not enough, in other words, to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.” Id. at 519.

6/ Marriott has argued in its proposed recommended order that Plaisime was terminated because his job classification was discontinued. Assuming that proof of a legitimate nondiscriminatory reason is relevant in a direct evidence case such as this, Marriott’s defense is unavailing because: (a) the undersigned does not recall that Marriott offered any evidence regarding the purported elimination of Plaisime’s job classification; (b) even if such proof was presented, it was unpersuasive, having failed to make any impression on the fact- finder; and (c) in the end, Plaisime established by a preponderance of the evidence the ultimate fact, i.e. that Marriott intentionally had discriminated against him.

7/ It may be helpful here to review briefly the process by which Plaisime’s claim landed before DOAH. Initially he filed a Charge of Discrimination with the FCHR pursuant to Section 760.11(1), Florida Statutes, which triggered an investigation of the allegations by that agency. The FCHR ultimately found “no cause” to believe that a violation had occurred. This adverse decision gave Plaisime a clear point of entry into a formal administrative proceeding in accordance with Section 760.11(7), Florida Statutes. To exercise his right to an administrative

hearing, Plaisime needed to file a request (known as a Petition for Relief) within 35 days after the date of the “no cause” determination, which he did. Marriott does not contend that Plaisime’s Petition for Relief was untimely filed, but rather that his Charge of Discrimination was late.

8/ In Crawford v. Department of Children and Families, 785 So. 2d 505, 507 (Fla. 3d DCA), rev. dismissed, 761 So.2d 328 (2000) the Third DCA reasoned that non-uniform rules which fall outside the “subject matter or scope” of the Uniform Rules of Procedure remain “viable.” Thus, the Third DCA held in Crawford that because the Uniform Rules of Procedure are silent as to motions for rehearing of final orders, an agency’s non-uniform rule authorizing such motions had survived the adoption of the Uniform Rules of Procedure. Id. In this respect, the Third DCA expressly disagreed with the First DCA, which had declared the same non-uniform rule to be ineffective. See Saulter, 742 So.

2d at 369-70. Accordingly, the Crawford court certified that its holding was in conflict with the earlier decision.

Crawford, 785 So. 2d at 507. Pointedly, however, the Third DCA did not take issue with the First DCA’s theory of “legislative repeal.” It thus appears that the two courts occupy common ground in agreeing that non-uniform procedural rules which fall within the subject matter or scope of the Uniform Rules of Procedure have been superceded.

9/ The undersigned credits his colleague, Judge T. Kent Wetherell, II, for bringing this issue to light. See Himrod Ambroise v. O’Donnell's Corp., 2002 WL 31003006, DOAH Case No. 02-2762 (Recommended Order of Dismissal Sept. 5, 2002).

10/ From this it follows that the “deemed admission” provision of Rule 60Y-5.008(5)(d) is legally inoperative, because applying it would effectively make filing an answer mandatory for all parties (save the few who admit every allegation made against them).

COPIES FURNISHED:

Ralph S. Francois, Esquire

1820 Northeast 163rd Street, Suite 106 North Miami Beach, Florida 33162

Susan L. Dolin, Esquire Rothstein, Rosenfeldt, Dolin

& Pancier, P.A.

300 Southeast 2nd Street

300 Las Olas Place, Suite 860 Fort Lauderdale, Florida 33301

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: 02-002183

Orders for Case No: 02-002183