STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NELSON RAMOS, JR.,

Petitioner,

vs.

PARAMOUNT HOSPITALITY MANAGEMENT,

Respondent.

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) Case No. 12-1240

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RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings (DOAH) heard this case, as noticed, on May 25, 2012, by video teleconference at locations in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Nelson Ramos, Jr., pro se

3 Dorcas Court

Orlando, Florida 32811

For Respondent: Bertha Cordoves, pro se

Paramount Hospitality Management 12562 International Drive

Orlando, Florida 32821 STATEMENT OF THE ISSUE

Did the Respondent, Paramount Hospitality Management (Paramount), discriminate against Petitioner, Nelson Ramos, Jr., on account of his race?

PRELIMINARY STATEMENT

On March 6, 2012, the Florida Commission on Human Relations (Commission), issued a Determination: No Cause. It concluded "that no reasonable cause exists to believe that an unlawful employment practice occurred and this complaint is hereby dismissed pursuant to F.S. 760.11(7)." Mr. Ramos filed a Petition for Relief on April 9, 2012, alleging that Paramount discriminated against him on account of his race. The Commission referred the matter to DOAH to conduct a hearing. On April 24, 2012, DOAH issued a notice of hearing, setting the hearing for May 25, 2012. The undersigned conducted the hearing as scheduled. On May 29, 2012, Paramount was substituted as Respondent for Point Orlando Resort (Point Orlando).

Notwithstanding the requirements of section 120.57(1)(g), Florida Statutes (2011),1/ and Florida Administrative Code

Rule 28-106.214, the Commission did not provide a court reporter to preserve the testimony at the final hearing. The Notice of Hearing by Video Teleconference (notice) issued April 23, 2012, advised the parties that the Commission would not provide a court reporter. Neither party elected to provide a court reporter. DOAH made an audio recording of the hearing, which is part of the file in this case.

The notice also advised the parties that each party was responsible for providing a notary public to swear in witnesses

testifying at the Orlando location. Neither party provided a notary. The undersigned swore the witnesses in Orlando during the video teleconference from the Tallahassee location. The video facilities allowed the undersigned to clearly observe the demeanor of the witnesses and conclude that they accepted the importance of testifying truthfully. Neither party objected to this procedure. The witnesses and the parties demonstrated in their communications and testimony at the hearing that they all knew each other and had worked together at Point Orlando. There was no question that the witnesses were who they identified themselves as being. By their conduct, the parties waived the requirement for a notary to be present with them. The record demonstrates that the parties suffered no prejudice from the absence of a notary.

Mr. Ramos testified on his own behalf. Latoya Jones also testified on his behalf. Mr. Ramos offered no exhibits.

Bertha Cordoves, Brenda Diaz, and Adriana Dos Santos testified on behalf of Paramount. Paramount’s Exhibits 2 and A through G were accepted into evidence.

Since a court reporter was not present, there was no transcript. The parties timely filed proposed recommended orders. They have been considered.

FINDINGS OF FACT

1. In 2010, Mr. Ramos applied for a job as a houseman with Paramount working at the Point Orlando in the housekeeping department. Mr. Ramos is an African-American male. Adriana Dos Santos, the head housekeeper interviewed him in person. During the interview, she saw Mr. Ramos in person and spoke to him.

   She also explained the position's duties.

   
   

2. Ms. Dos Santos was impressed with Mr. Ramos. He had previous housekeeping experience and was polite and enthusiastic. She decided to hire him.

3. Mr. Ramos maintains that Paramount hired him because Ms. Dos Santos did not know he was African-American and thought he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in

   Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. Also during the interview, according to

   Mr. Ramos's testimony, he told Ms. Dos Santos that he could not speak Spanish.

4. Paramount's Employee Handbook describes the company's 90-day "Get Acquainted Period," traditionally referred to as a probationary period. It also reminds employees that throughout their employment they may terminate their employment at any time with or without cause and that Paramount may terminate the employment at any time with or without cause. Paramount

   
   

   provided Mr. Ramos a copy of the handbook when it hired him. Paramount terminated Mr. Ramos during the first 90 days of his employment

5. Mr. Ramos began work with Paramount at Point Orlando on July 15, 2010, as a houseman. Vladimir Suarez trained

   Mr. Ramos.

   
   

6. Mr. Suarez speaks English and Spanish. Although

   
   

   Mr. Ramos claims that Mr. Suarez could not speak English at all, he never complained during training of Mr. Suarez not speaking English. In addition, during his first days of employment, Mr. Ramos performed his duties well. This is an indication that they were adequately explained.

7. The houseman has a cart with supplies on it. A houseman's duties include keeping the carts of the housecleaners stocked with linens and supplies, collecting linens from the carts and sending it down the laundry chute, and collecting trash from the carts and sending it down the garbage chute. The duties also include providing assistance with whatever tasks need to be accomplished.

8. Point Orlando is a two-tower hotel with 12 floors, six rooms to a floor. Each day the housecleaners move through the hotel cleaning the rooms, changing linens, and emptying garbage.

9. The housekeeping supervisors communicate with the housemen and housekeepers by walkie-talkie. Consequently, any

   
   

   guests or visitors near the houseman or housekeeper involved can hear both sides of a walkie-talkie conversation. Because of this, Paramount's policy required the employees to keep the walkie-talkie communications brief and use walkie-talkies to transmit and acknowledge instructions and provide information.

10. The policy specifically prohibited employees from disputing instructions or arguing on the walkie-talkies. Disputes were to be discussed in person not within the hearing of the public, as walkie-talkie communications necessarily were.

11. Mr. Ramos resented this policy. He viewed it as a rule that he could not disagree with his supervisor. He felt that it was disrespectful to him. Consequently, Mr. Ramos frequently did not comply with the rule.

12. During his first days of employment, Mr. Ramos worked diligently and performed his duties well. Within weeks, this stopped. His supervisor, Ms. Diaz, verbally counseled him. She testified at the hearing. She speaks and understands English.

13. On September 6, 2010, Paramount issued Mr. Ramos his first Employee Counseling Report. This discipline was for not clocking in or out on August 30, 2010.

14. Mr. Ramos knew that he was supposed to clock in. He did not clock in as required.

15. On October 4, 2010, Paramount issued Mr. Ramos another Employee Counseling Report. This report counseled Ramos for the

    
    

    following deficiencies on September 26, 2010: lateness, disobedience, attitude, and defective work.

16. On September 26, 2010, Mr. Ramos came to work 30 minutes late. During that morning, he only took trash from the housekeepers' carts. He did not take the dirty linens.

17. Mr. Ramos also did not bring his linen cart when called to restock a housekeeper cart. He had been previously warned to always have his cart with him when going to assist the housekeepers.

18. On September 26, 2010, at 2:00 p.m., Ms. Diaz instructed Mr. Ramos to strip linen and trash from 21 rooms. By 2:30 p.m., he had not started the task. When Ms. Diaz, called him to the office to counsel him, he was very disrespectful to her. She sent him home and suspended him until September 29, 2010.

19. Ms. Dos Santos issued another counseling report to Mr. Ramos for his conduct on September 30, 2010. On that day, she asked him to wait to speak to her privately when he was clocking out at the end of his shift. He told her he could not

    wait because he had to go to the bank and to his second job. He waited a few minutes then told her again he had to go. She insisted that she had to talk to him. Mr. Ramos left. He was not on the clock and his shift had ended.

20. On October 4, 2010, Paramount terminated Mr. Ramos.

    
    

21. Mr. Ramos maintains that Hispanic employees committed the same offenses as he did and were not disciplined. There is no persuasive competent evidence to support his assertions.

22. Paramount keeps personnel records and actions for employees confidential. Mr. Ramos' testimony could only be based upon hearsay.

23. Mr. Ramos also maintains that Paramount hired him because Ms. Dos Santos did not know that he was African-American and thought that he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. During that interview, Mr. Ramos told Ms. Dos Santos that he could not speak Spanish.

    CONCLUSIONS OF LAW

    
    

24. Sections 120.569 and 120.57(1), Florida Statutes, grant DOAH jurisdiction over the subject matter of this proceeding and of the parties.

25. Section 760.11(7), Florida Statutes, permits a party who receives a no cause determination to request a formal administrative hearing before DOAH. "If the administrative law judge finds that a violation of the Florida Civil Rights Act of 1992 has occurred, he or she 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." Id.

26. Section 760.10(1)(a), Florida Statutes, makes it unlawful for an employer to take adverse action against an individual because of the individual's race.

27. Mr. Ramos claims that Paramount disciplined and terminated him because of his race. Mr. Ramos must prove his claims by a preponderance of the evidence. Dep’t. of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996).

28. Employers may not take adverse action against an employee for an unlawful reason, such as race. But the law does not prohibit erroneous, irrational, or unfair employment actions. Sunbeam Television Corp. v. Marilyn A. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012). In Florida, employers may terminate employees at will. Linafelt v. Bev, Inc., 662 So. 2d 986, 989 (Fla. 1st DCA 1995). There is no need to, and this Recommended Order does not, determine if the supervision and ultimate discharge of Mr. Ramos was erroneous, irrational, or unfair.

    The only question is: Did Paramount discipline or terminate Mr. Ramos because of his race?

29. An employee may prove a discrimination claim by direct evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Direct evidence of discrimination is evidence that, if believed, proves the existence of a fact without

    
    

    inference or presumption. Carter v. City of Miami, 870 F. 2d 578, 581-82 (11th Cir. 1989). Racial slurs or similar statements are examples of direct evidence of intent to discriminate. Here, there is no persuasive, competent direct evidence proving that Paramount acted against Mr. Ramos because of his race. For instance, there is no proof of racial slurs or other biased comments.

30. An employee may also prove a claim of discrimination by circumstantial evidence establishing that similarly situated employees, who were not in his protected class, were treated more favorably than he was. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Mr. Ramos has not presented persuasive, competent evidence establishing disparate treatment.

31. Mr. Ramos attempted to prove disparate treatment by claiming that Hispanic employees committed the same offenses that he did, but were not disciplined. But he did not prove

    this.

    
    

32. Mr. Ramos bears the burden of proving his claim of

discrimination on account of race by the preponderance of the evidence. He has not met that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Ramos's Petition for Relief.

DONE AND ENTERED this 14th day of June, 2012, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 14th day of June, 2012.

ENDNOTE

1/ All citations to the Florida Statutes are to the 2011 edition unless otherwise noted.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Bertha Cordoves

Paramount Hospitality Management 12562 International Drive

Orlando, Florida 32821

Nelson Ramos, Jr.

3 Dorcas Court

Orlando, Florida 32811

Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

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: 12-001240

Orders for Case No: 12-001240