vs. ) Case No. 09-4055
Respondent. )
Pursuant to notice, a formal hearing was held in this case on October 15, 2009, by video teleconference with connecting sites in West Palm Beach and Tallahassee, Florida, before
Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.
The issue for determination is whether Respondent discriminated against Petitioner on the basis of race and sex in violation of the Florida Civil Rights Act of 1992, as amended.
Catherine McRath filed a public accommodation complaint of discrimination with the Florida Commission on Human Relations (FCHR) against One Stop Food Market on the basis of race and sex. On June 5, 2009, the FCHR issued a Notice of Determination [for] Cause, having determined that there was reasonable cause to believe that discrimination had occurred. Among other things, the Notice of Determination [for] Cause advised
Ms. McRath that she had the option of filing a request for an administrative hearing by filing a Petition for Relief within 35 days of the Notice of Determination [for] Cause or of filing a civil action within one year of the date of the Notice of Determination [for] Cause. Ms. McRath timely filed a Petition for Relief, requesting an administrative hearing. On July 30, 2009, FCHR referred this matter to the Division of Administrative Hearings.
At hearing, Ms. McRath testified on her own behalf and entered no exhibits into evidence. One Stop Food Market presented the testimony of two witnesses and entered no exhibits into evidence.
A transcript of the hearing was not ordered. At the request of the parties, the time for filing post-hearing submissions was set for no more than ten days following the conclusion of the hearing. The parties timely filed their post-
hearing submissions, which were considered in the preparation of this Recommended Order.
Ms. McRath is an African-American female.
On August 30, 2008, around 7:30 p.m., Ms. McRath visited One Stop Food Market near her home to get a cup of coffee. She was a customer of One Stop Food Market on many occasions. One Stop Food Market was once owned by her former employer, and she was a customer during the ownership by her former employer and continued after her former employer no longer owned it.
One Stop Food Market is located in the southwest area of Belle Glade, Florida, and was owned at all times material hereto, and is currently owned, by Mohammed Uddin. Mr. Uddin owns four other similar food markets in the Belle Glade area.
One Stop Food Market is open to the general public.
Approximately 99 percent of the customers of One Stop Food Market are African-American.
Ms. McRath had seen Mr. Uddin in One Stop Food Market on several occasions. However, she was not aware that he owned
it.
Mr. Uddin had also seen Ms. McRath in One Stop Food
Market on several occasions.
On the evening of August 30, 2008, after Ms. McRath had obtained her coffee, she proceeded to the counter to pay for it. A tall, dark-haired male, with dark glasses, was behind the counter. She had not seen him at One Stop Food Market before that evening. Ms. McRath gave the man a dollar for the coffee; he took the dollar and threw the change at her, with the change hitting the floor, but not her.
Ms. McRath was in a state of shock. She had never had such an incident like that happen to her at One Stop Food Market. After throwing the change, the man reached under the counter with his hand. Not knowing what he was reaching for, Ms. McRath turned to leave the store, and the man said to her, “Get your damn ass out of my store. All American Niggers are nasty, get out of my store.”1
An inference is drawn and a finding of fact is that the man who was behind the counter was an employee of One Stop Food Market. He did not testify at the hearing.
Being in a state of shock, Ms. McRath departed One Stop Food Market. She has never returned to the store.
Ms. McRath did not report the incident to Mr. Uddin, to any other employee of One Stop Food Market or to any law enforcement officer. However, the day after the incident, she contacted an attorney, who advised her as to what to do.
Ms. McRath filed a public accommodation discrimination complaint against One Stop Food Market with the FCHR on
December 2, 2008.
One Stop Food Market is equipped with digital security cameras inside and outside of the store, which have audio in addition to video capabilities. The digital recordings are maintained for 15 days and then are automatically erased by the system. Because the incident was not reported, the digital recordings were automatically erased and were, therefore, not retained.
Mr. Uddin was not aware of the incident. He became aware of the incident several months later only after being contacted by the FCHR, which was after December 2, 2008.
Mr. Uddin questioned his employees regarding the incident, and none of the employees were aware of the incident.
One of Mr. Uddin’s employees, Siragul Islam, who has known Mr. Uddin for many years, who has worked at One Stop Food Market for 12 years, and who would have been working at One Stop Food Market at the time of the incident, was not aware of the incident. Mr. Islam is unable to recall the evening of
August 30, 2008, however; he does not recall any such incident having occurred. Further, he does not recall any male, who was tall and wearing dark glasses, working at One Stop Food Market
on August 30, 2008. Ms. McRath’s testimony is found to be more credible than Mr. Islam’s testimony.
Neither Mr. Uddin nor Mr. Islam was inside One Stop Food Market at the time of the incident.2
Ms. McRath had always been treated by Mr. Uddin with “kindness” when she visited One Stop Food Market.
Ms. McRath had not been subjected to unfavorable treatment by Mr. Islam whenever she was at One Stop Food Market.
On June 5, 2009, the FCHR issued a Notice of Determination [for] Cause, having determined that there was reasonable cause to believe that discrimination had occurred. Among other things, the Notice of Determination [for] Cause advised Ms. McRath that she had the option of filing a request for an administrative hearing by filing a Petition for Relief within 35 days of the Notice of Determination [for] Cause or of filing a civil action within one year of the date of the Notice of Determination [for] Cause.
Ms. McRath timely filed a Petition for Relief, requesting an administrative hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.11 and 120.569,
Florida Statutes (2009), and Subsection 120.57(1), Florida Statutes (2009).
The standard of proof is preponderance of the evidence. § 120.57(1)(j), Fla. Stat. (2009).
These proceedings are de novo. § 120.57(1)(k), Fla.
Stat. (2009).
Section 760.08, Florida Statutes (2008), provides:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.
Section 760.02, Florida Statutes (2008), provides in pertinent part:
(11) "Public accommodations" means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this section:
* * *
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment, or any gasoline station.
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(d) Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.
Section 509.013, Florida Statutes (2008), provides in pertinent part:
(5)(a) "Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.
(b) The following are excluded from the definition in paragraph (a):
Any place maintained and operated by a public or private school, college, or university:
For the use of students and faculty; or
Temporarily to serve such events as fairs, carnivals, and athletic contests.
Any eating place maintained and operated by a church or a religious, nonprofit fraternal, or nonprofit civic organization:
For the use of members and associates; or
Temporarily to serve such events as fairs, carnivals, or athletic contests.
Any eating place located on an airplane, train, bus, or watercraft which is a common carrier.
Any eating place maintained by a hospital, nursing home, sanitarium, assisted living facility, adult day care center, or other similar place that is regulated under s. 381.0072.
Any place of business issued a permit or inspected by the Department of Agriculture and Consumer Services under s. 500.12.
Any place of business where the food available for consumption is limited to ice, beverages with or without garnishment, popcorn, or prepackaged items sold without additions or preparation.
Any theater, if the primary use is as a theater and if patron service is limited to food items customarily served to the admittees of theaters.
Any vending machine that dispenses any food or beverages other than potentially hazardous foods, as defined by division rule.
Any vending machine that dispenses potentially hazardous food and which is located in a facility regulated under s. 381.0072.
Any research and development test kitchen limited to the use of employees and which is not open to the general public.
Public food service establishments are private enterprises, and the operator has the right to refuse accommodations or service to any person who is objectionable or undesirable to the operator, but such refusal may not be based upon race, creed, color, sex, physical disability, or national origin. § 509.092, Fla. Stat. (2008). A person aggrieved by a
violation of Section 509.092, Florida Statutes, or a violation of a rule adopted under Section 509.092, Florida Statutes, has a right of action pursuant to Section 760.11, Florida Statutes.
Ibid.
The burden is on Ms. McRath to prove by a preponderance of the evidence adduced at final hearing that she was the victim of public accommodation discrimination at the hands of One Stop Food Market, as alleged in her discrimination complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996).
Because this matter was fully tried on the merits, it is appropriate to examine the ultimate question of discrimination. See Green v School Board of Hillsborough County, 25 F.3d 974, 978 (1lth Cir. 1998).
“Discriminatory intent may be established through direct or indirect circumstantial evidence.” Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).
“Direct evidence is evidence that, if believed, proves [the] existence of [a] fact without inference or presumption.” Wilson v. B/E Aero., Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). “If the [complainant] offers direct evidence and the trier of fact accepts that evidence, then the [complainant] has proven
discrimination.” Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
“[D]irect evidence is composed of ‘only the most blatant remarks, whose intent could be nothing other than to discriminate’ on the basis of some impermissible factor. . . .
If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).
Similarly, a statement “that is subject to more than one interpretation . . . does not constitute direct evidence.” Merritt v. Dillard Paper Company, 120 F.3d 1181, 1189 (11th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, “the Supreme Court’s shifting-burden analysis adopted in McConnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) . . . is applicable.” Laroche v. Denny’s, Inc., 62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999).
Consequently, where direct evidence, not circumstantial evidence, is being used to prove intentional discrimination, the shifting-burden analysis is not applicable.
No dispute exists that Ms. McRath is a member of the protected class.
No dispute was presented regarding One Stop Food Market falling within the definition of a public accommodation or a public food service establishment.
The evidence demonstrates that an employee of One Stop Food Market deprived Ms. McRath of the opportunity to enjoy the services of One Stop Food Market on the same terms as other members of the public. After getting her coffee and giving the clerk the money for the coffee, her change was thrown at her by the clerk, with the change hitting the floor, not her; and the clerk then ordered her out of One Stop Food Market, using profane language.
Furthermore, the evidence demonstrates that Ms. McRath was discriminated against because of her race. The clerk used a discriminatory term, i.e., “nigger” in describing her and in ordering her out of One Stop Food Market. Hence, intentional discrimination was demonstrated.
“[One Stop Food Market] is liable for the actions of its [employee] pursuant to Section 219(1)(d) of the Restatement (Second) of Agency which provides: ‘the employee . . . was aided in accomplishing the tort by the existence of the agency relationship.’” Laroche at 1383, footnote number 14. No affirmative defense was presented by One Stop Food Market.
Ibid.
After an administrative hearing, if the FCHR finds that a discriminatory practice has been committed, the FCHR must issue a final order “prohibiting the practice and providing affirmative relief from the effects of the practice ”
§ 760.11(6), Fla. Stat. (2008). However, the FCHR has no authority to award monetary relief for non-quantifiable damages.3 See City of Miami v. Wellman, 976 So. 2d 22, 27 (Fla. 3d DCA 2008) ([N]on-quantifiable damages . . . are uniquely within the jurisdiction of the courts.”).
Ms. McRath does not claim that she suffered quantifiable damages and no evidence was presented demonstrating quantifiable damages.
RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that One Stop Food Market committed a discriminating public accommodation practice against Catherine McRath in violation of the Florida Civil Rights Act of 1992, as amended, and prohibiting One Stop Food Market from engaging in any further discriminatory public accommodation practice.
DONE AND ENTERED this 13th day of November, 2009, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2009.
1/ Ms. McRath was questioned by counsel for One Stop Food Market regarding the statement made by the man working behind the counter, as indicated in the discrimination complaint. On direct, she failed in her testimony to include the statement in the discrimination complaint. Ms. McRath clarified her testimony to the satisfaction of this Administrative Law Judge, testifying that the man also made the statement set forth in the discrimination complaint. Further, she testified that she did not complete the discrimination complaint herself, but had someone to complete it for her and she signed it. This Administrative Law Judge finds Ms. McRath’s testimony to be credible.
2/ Conflicting testimony existed as to who was working inside One Stop Food Market at the time of the incident. Ms. McRath testified that neither Mr. Uddin nor Mr. Islam was inside One Stop Food Market at the time of the incident. Mr. Uddin testified that Mr. Islam and another employee were working inside at the time of the incident; but, Mr. Islam testified that only he and Mr. Uddin were working. Ms. McRath’s testimony is found to be more credible than Mr. Uddin’s and Mr. Islam’s testimony.
3/ Examples of non-quantifiable damages are pain, embarrassment, and humiliation.
Larry Kranert, 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.
