ROMEO C. MADERAZO,
vs.
C.W. DAVIS, INC., d/b/a MCDONALDS, NO. 26203,
Respondent.
) Case No. 05-0181
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on March 31, 2005, in Niceville, Florida.
For Petitioner: Romero C. Maderazo, pro se
For Respondent: Paul J. Scheck, Esquire
The issue is whether Respondent engaged in an unlawful employment action based on Petitioner's race.
Petitioner Maderazo (Mr. Maderazo) submitted an Employment Charge of Discrimination, with the Florida Commission on Human Relations (FCHR or the Commission) which was filed on June 7, 2004. The named employer was Respondent C. W. Davis, Inc., d/b/a McDonalds, No. 26203 (Davis, Inc.). In an action dated December 17, 2004, the Commission rendered its "No cause" finding subsequent to an inquiry. Mr. Maderazo filed a Petition for Relief on January 14, 2005, and FCHR transmitted it to the Division of Administrative Hearings which filed it on
January 20, 2005.
A hearing was set for Niceville, Florida, on March 31, 2005, and the case was heard as scheduled.
At the hearing, Mr. Maderazo testified and had two exhibits accepted into evidence. Davis, Inc., presented testimony from the Petitioner as well as testimony of two additional witnesses and offered three exhibits into evidence. All three were admitted.
A Transcript was filed on May 5, 2005. Mr. Maderazo and Davis, Inc., timely filed Proposed Recommended Orders.
References to statutes are to Florida Statutes (2004) unless otherwise noted.
Mr. Maderazo is of the Asian race.
Davis, Inc., is a corporation doing business in Florida and employed from 200 to 240 persons, during times pertinent, in four restaurants in Okaloosa County, Florida. Charles W. Davis is the owner and president of Davis, Inc.
Mr. Maderazo was employed by Davis, Inc., for a total of about 12 years. He was first hired as a crew person in Mary Esther, Florida in 1993. It was during his employment as a crew person that Davis, Inc., management became aware of him. In 1994 Mr. Maderazo terminated his employment with Davis, Inc., and moved to California. Davis, Inc., rehired him when he returned in 1996.
Mr. Maderazo was promoted several times within the Davis, Inc., organization until he reached the position of store manager in Niceville, at McDonalds No. 26203. During the course of this upward mobility, he was sent to various schools by Davis, Inc., which the corporation funded, including a course at McDonald Corporation's Hamburger University in Chicago, Illinois.
A store manager at a McDonalds restaurant is charged with supervising workers; ordering supplies; maintaining a clean and orderly operation; keeping track of cash; filing invoices; and generally ensuring that the store is profitable.
Mike Smith, a Davis, Inc., an employee for 24 years, and who appears to be an African-American, and C. W. Davis, the
principal of C. W. Davis, Inc., who appears to be of the Caucasian race, were intimately aware of Mr. Maderazo's capabilities as a McDonalds employee. Indeed, they had known him personally as an employee for at least 12 years. After Mr. Maderazo's promotion to store manager, both Mr. Smith and
Mr. Davis visited his store on a frequent basis and observed his performance.
Although Mr. Davis has the ultimate power to promote an employee to a position of high responsibility, such as store manager, Mr. Davis and Mr. Smith confer prior to making promotional decisions and other decisions involving personnel. Both Mr. Davis and Mr. Smith agreed that, at least until May 3, 2004, Mr. Maderazo was a capable and hard-working employee who deserved to be a store manager.
In April 2004 a meeting was held which the store managers, including Mr. Maderazo, attended. The meeting was hosted by Mr. Davis and Mr. Smith.
At the meeting management issues were discussed in general but a substantial part of the meeting specifically addressed the handling of cash and the necessity for store managers to ensure that two bank deposits were accomplished each day. It was a policy of Davis, Inc., that no more than one deposit bag should be in a store at one time. An exception to the deposit rule could be made if a law enforcement escort was
not available during the hours of darkness. In that case, the deposit could be deferred until the following morning. This policy has been in effect since about 1980.
There was a great concern about cash management at the stores because of a previous incident where a portion of daily receipts went missing. Frequent deposits are an important part of cash management.
During the meeting in April 2004, Mr. Davis told each store manager that their failure to abide by the requirement to make two deposits each day, subject to the exception noted, would result in serious consequences to them. Mr. Davis ensured that each of the attending store managers told him specifically that he understood the guidance provided. Mr. Maderazo, specifically, looked in the direction of Mr. Davis and nodded in the affirmative, indicating that he understood.
At times pertinent, the McDonalds stores owned by Davis, Inc., conducted almost all transactions in cash. Therefore, cash would accumulate if deposits were not made on a daily basis. The accumulation of large amounts of cash, which could amount to $20,000 or more over a weekend in a single store, could result in losses through "mysterious disappearance." Insurance policies maintained by Davis, Inc., did not cover losses through "mysterious disappearance."
The excess accumulation of cash is also a safety issue. A person harboring a criminal inclination, who would not commit larceny or robbery at a McDonalds for a few thousand dollars, might conclude that the risk was worth the reward if the stake was $20,000 or more.
Additionally, Davis, Inc. had suppliers to pay and without receipts being timely deposited, the business could experience cash flow disruption.
The deposit policy was grounded in reasons that were obvious to any store manager, and this had to have been obvious to Mr. Maderazo.
Despite the instructions given to Mr. Maderazo at the April meeting of managers, and despite the fact that
Mr. Maderazo was undoubtedly aware of the downside of cash accumulation, he failed, during the weekend preceding May 3, 2004, to ensure that he or his assistant managers made deposits on a daily basis.
On May 3, 2004, a Monday, Mr. Maderazo arrived at the store early in the morning and checked the deposit bags that had accumulated over the weekend. Five deposit bags should have been present that morning in the store safe. One bag, however, had gone missing.
Mr. Maderazo followed many of the procedures for lost cash by conducting a search of the store and calling the bank
that would have been the recipient of the deposit and calling the assistant managers. He did not immediately inform Mr. Davis or Mr. Smith of the loss, which was contrary to company policy.
Around noon, Mr. Smith entered the store and inquired why the store was in a state of disarray. Shortly thereafter, Mr. Maderazo revealed to Mr. Smith that a deposit bag with approximately $3,000 had gone missing.
Mr. Smith informed Mr. Davis of the loss. The local police department was informed, interviews of employees were conducted, and surveillance tapes were reviewed. These activities did not result in explaining the disappearance of approximately $3,000 in cash.
Mr. Smith asked Mr. Maderazo why the deposits had not been made over the weekend. Mr. Maderazo informed him that he had been keeping the weekend deposits in the safe and then having Mollie Jimmerson, one of the assistant managers, take the weekend deposits to the bank on Sunday evenings.
Neither Mr. Davis, Mr. Smith, nor law enforcement authorities considered Mr. Maderazo to be criminally involved in the loss.
Mr. Smith and Mr. Davis discussed on several occasions, following these events, whether or not Mr. Maderazo should be terminated or given a chance to continue working for Davis, Inc. They determined that he should be retained but
should be demoted to assistant store manager and transferred to another store. Mr. Maderazo was informed of this decision in a meeting between him, Mr. Davis, and Mr. Smith, on May 10, 2004.
In a letter dated May 11, 2004, Mr. Maderazo provided Mr. Davis with a letter of resignation, effective May 11, 2004. In the letter he stated that he believed that the demotion and transfer were unfair. He also stated, "You've been great to me and it is part of the reason why I stayed and as [sic] been as loyal to your organization." In the letter he also thanked
Mr. Davis for the opportunities provided to him for almost 12 years.
In response, Mr. Davis provided Mr. Maderazo, on that same day, a written acceptance of his resignation. Subsequently, although he was under no obligation to do so,
Mr. Davis directed Davis, Inc., to provide Mr. Maderazo with a severance payment in the amount of $700.
Mr. Maderazo's position was eventually filled by a person named Billy Jordan who is of the Caucasian race.
Once, several years prior to this incident, it was reported to Mr. Maderazo that Mr. Smith had referred to him as a "Filipino Jew." This is the sole reference to race that was produced by Mr. Maderazo and was in the form of hearsay which is accorded minimal weight.
Mr. Maderazo's salary with Davis, Inc., at the time he resigned was net $1163 biweekly. After his resignation he was unemployed for one week. Thereafter he went to work for another McDonalds (which was not owned by Davis, Inc.) and received
$1,000 net biweekly.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
Sections 760.01-760.11 and 509.092, Florida Statutes, comprise the Florida Civil Rights Act. § 760.01, Fla. Stat.
Davis, Inc. is subject to Section 760.10, Florida Statutes, because it employs, "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. . . ." § 760.02(7). Fla. Stat.
Race is a protected class. There is no dispute that Mr. Maderazo is of the Asian race. § 760.10 Fla. Stat.
Mr. Maderazo has the burden of proving by the preponderance of the evidence that Respondent committed an unlawful employment practice. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 760.10, Florida Statutes, provides as follows:
It is an unlawful employment practice for an employer:
To discharge or to fail to 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.
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.
The Commission and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Mr. Maderazo had the opportunity to provide either direct or circumstantial evidence of discrimination. If he had offered direct evidence of discrimination, and if the trier-of- fact had accepted that evidence, then Mr. Maderazo would have proven discrimination. Civil Rights Act of 1964, § 701 et seq.,
42 U.S.C.A. § 2000e, et seq. Mr. Maderazo produced no competent
direct evidence of discrimination. Accordingly, proof of discrimination, if discrimination can be proved, must be accomplished using circumstantial evidence.
The Supreme Court of the United States established, in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination which might be persuasive in cases such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Pursuant to this analysis, Mr. Maderazo has the burden of establishing a prima facie case of unlawful discrimination by a preponderance of the evidence. If a prima facie case is established, Davis, Inc., must articulate some legitimate,
non-discriminatory reason for the action taken against
Mr. Maderazo. Once this non-discriminatory reason is offered by Davis, Inc., the burden then shifts back to Mr. Maderazo to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the plaintiff's explanation of intentional discrimination." 509
U.S. at 519.
Under the McDonnell Douglas scheme applicable to Title VII discriminatory treatment cases, Mr. Maderazo must first
establish by a preponderance of the evidence a "prima facie" case of racial discrimination, thus creating the presumption that Davis, Inc., unlawfully discriminated against him. Civil Rights Act of 1964, § 703(a)(1), 42 U. S. C. A. § 2000e-2(a)(1).
In order for Mr. Maderazo to establish a prima facie case, he must demonstrate that: (1) he belongs to a protected class; (2) Davis, Inc., treated similarly situated employees outside of his classification differently or more favorably, or he was replaced by a person outside his protected class; (3) he was qualified for the position of store manager; (4) and he was demoted from that position. Maynard v. Board of Regents of Division of Universities of the Florida Department of Education, 342 F.3d 1281 (11th Cir. 2003).
Mr. Maderazo proved that he belonged to a protected class, Asian. He failed to prove that Davis, Inc., treated similarly situated employees outside of his classification differently. However, the person that eventually became store manager, Billy Jordan, was of the Caucasian race. It is not clear that Billy Jordan was his replacement, but for purposes of this case, he will be deemed to have been his replacement.
Mr. Maderazo was qualified for the position of store manager and he was demoted from this position.
The second McDonnell Douglas factor requires Davis, Inc., to provide a legitimate, nondiscriminatory reason for its
adverse employment action. It is clear that the reason for its action was Mr. Maderazo's failure to abide by the announced and clearly articulated policy with regard to making bank deposits in a timely manner. The requirement to make daily deposits were made clear to Mr. Maerazo, and the consequence of the failure to abide by the policy, a severe adverse employment action, was made equally clear.
The evidence established that Mr. Maderazo was a valued employee for over 12 years, that Davis, Inc., expended substantial sums of money training Mr. Maderazo, that Davis, Inc., promoted him to positions of increasing responsibility, and pay, and that Mr. Davis and Mr. Smith agonized over what action would be appropriate when Mr. Maderazo failed to abide by the deposit policy. These facts are persuasive in arriving at the conclusion that Mr. Maderazo was going to be demoted solely due to his failure to abide by the deposit policy.
Mr. Maderazo did not demonstrate that the reasons given by Davis, Inc., for their adverse employment action, were
pretextual.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2005.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Romeo C. Maderazo 605 McKinney Street
Paul J. Scheck, Esquire Shutts & Bowen, LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
