STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSHON S. DILLARD,

vs.

Petitioner,

Case No. 12-3379

INTERNATIONAL HOUSE OF PANCAKES,

Respondent.

/

SUPPLEMENTAL RECOMMENDED ORDER

A formal hearing on the issue of back pay was conducted in this case on July 15, 2013, in Leesburg, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sushon S. Dillard, pro se

Apartment 46P

311 South LaSalle Street Durham, North Carolina 27705

For Respondent: Pritesh Patel

International House of Pancakes IHOP 151

10332 U.S. Highway 441

Leesburg, Florida 34788 STATEMENT OF THE ISSUE

The issue in this portion of the instant proceeding is the amount of back pay and/or lost wages to which Petitioner, Sushon S. Dillard, is entitled as a result of her retaliatory

dismissal from employment by Respondent, Pritesh, Inc., d/b/a

IHOP 36-151 ("IHOP").

PRELIMINARY STATEMENT

On March 5, 2013, the undersigned entered a Recommended Order in this case concluding that IHOP committed an unlawful act of retaliation against Petitioner when it dismissed her from employment because she made allegations of discriminatory employment practices against IHOP. The undersigned recommended that the Florida Commission on Human Relations ("FCHR") “remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner.” By order dated May 8, 2013, FCHR remanded the case “for further proceedings to determine the amount of back pay and interest owed Petitioner and the issuance of a Recommended Order as to those amounts. Further, this matter is REMANDED to the Administrative Law Judge for determination of whether Petitioner is entitled to reinstatement as part of the affirmative relief.”

The matter was set for hearing on July 15, 2013, on which date it was convened and completed.

At the hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of its owner, Pritesh Patel, and of IHOP employee Brian Jackson. Neither party offered exhibits at this portion of the proceedings.

No court reporter was present at the hearing. The undersigned created a digital recording of the hearing that was used in preparing this Recommended Order. Both parties were offered a copy of the recording, but neither party filed a request for a copy. No transcript was filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg.

2. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc.

3. Petitioner is a black female who is an observant Jew.

   
   

   Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday.

4. Petitioner was hired to work as a server at IHOP on March 19, 2012.

5. As more fully set forth in the March 5, 2013, Recommended Order, Petitioner encountered difficulties on the job that she attributed to discrimination based on her race and religious beliefs. The evidence presented at the initial hearing did not establish that such discrimination occurred. However, Mr. Patel testified that on April 2, 2012, he dismissed

   
   

   Petitioner from her position with IHOP because of her complaints about discrimination. This testimony formed the basis of the Recommended Order’s conclusion that IHOP committed an unlawful act of retaliation against Petitioner.

6. At the initial hearing, no evidence was presented to indicate how much Petitioner was paid by IHOP, how long Petitioner was unemployed after her dismissal from IHOP, what efforts she made to find employment, whether she received supplemental income during her period of unemployment, or any other efforts to mitigate the damages caused by her dismissal. FCHR remanded the case to the Division of Administrative Hearings for a hearing on the issue of back pay and interest.

7. The evidence at the initial hearing established that Petitioner worked at IHOP for less than two weeks, from March 19 until April 2, 2012. At the second hearing, Petitioner testified that she worked 36.1 hours during her first week at IHOP and 23 hours during the second week. IHOP paid her the minimum cash wage for tipped employees, which was $4.29 at the time. IHOP does not provide vacation time or sick leave.

8. There was some dispute over the question of tips.

   
   

   Brian Jackson, the manager of IHOP, testified that an IHOP server might make $50 in tips on a good day, and that the average was $30 to $35. Petitioner emphasized her 14 years of experience as a server and insisted that she would make far more

   
   

   in tips than the average IHOP server. Petitioner did not establish the amount of tips she actually collected during the two weeks she worked at IHOP. Mr. Jackson’s testimony is credited. Petitioner will be credited with making $35 per day for each day worked in addition to the $4.29 per hour base pay from IHOP.

9. Mr. Jackson, who has managed IHOP for six years, testified that IHOP has never assigned servers to work 40 hours per week because of the potential for an employee to work more than 40 hours if the schedule has to be juggled. The maximum number of hours that any server is assigned is 30 hours per week, with the potential to work a few more hours filling in for others. Petitioner worked 36 hours during her first week because she was being trained. Petitioner will be credited with

   32 hours per week, the equivalent of four eight-hour shifts at IHOP.

10. Petitioner’s claims to excellence in working as a server were undercut at the original hearing by Mr. Jackson’s entirely credible testimony that Petitioner was doing such a poor job that her direct supervisor had to reduce the number of booths she worked. At the second hearing, Mr. Patel testified that Petitioner was doing a poor job and would likely have been dismissed within a few weeks. Mr. Jackson testified that IHOP

    
    

    generally gives a server one or two weeks to catch on to the system before letting her go.

11. Petitioner testified that her car broke down in September 2012. She claimed that the car was “sabotaged” by some unnamed adversary. Petitioner stated that the bus service in Leesburg was not reliable and she therefore traveled on foot after September 2012.

12. Petitioner testified that the apartments where she lived were within walking distance of IHOP, and she could have walked to work every day. In fact, the apartment complex was just less than three miles from IHOP, meaning that Petitioner would have had to walk for about one hour each way. It is questionable how long Petitioner could have maintained such a commute.

13. Petitioner testified that she has been unemployed since losing her job at IHOP. She receives food stamps and relies on support from her mother. Petitioner testified that she put in applications to businesses, but did not offer specifics as to her efforts to mitigate her damages.

14. Petitioner now lives outside the state of Florida and has no desire to be reinstated to her former position at IHOP.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

16. The Florida Civil Rights Act of 1992 (the “Florida Civil Rights Act” or the "Act"), chapter 760, Florida Statutes, prohibits discrimination in the workplace.

17. Subsection 760.10, Florida Statutes, states the following, in relevant part:

    1. It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

       
       

18. IHOP is an "employer" as defined in subsection 760.02(7), Florida Statutes, which provides the following:

    1. "Employer" means any person employing

       15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

       
       

19. The Act gives the FCHR the authority to issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay, if it finds following an administrative hearing that an unlawful employment practice has occurred. See § 760.11, Fla. Stat. It was

    
    

    established in the March 5, 2013, Recommended Order that IHOP’s dismissal of Petitioner was an act of retaliation in violation of section 760.10(7).

20. The evidence established that Petitioner was not doing a good job as a waitress at IHOP and would not have lasted long in the position. In no event is it realistic to find that Petitioner would have worked for IHOP past September 2012, when her car broke down.

21. However, the undersigned must also take into account the minimal efforts that Petitioner made to mitigate her damages. As was noted by Administrative Law Judge Joyous D. Parrish in Lamarre v. The Richman Group, Case No. 10-9511 (Fla. DOAH April 6, 2011):

    42. The purpose of relief in a discrimination case, such as this, is to recreate the conditions and relationships that would have been had there been no unlawful discrimination; that is to say, make the party whole. See United States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999). Nevertheless, such party must mitigate damages through reasonably diligent efforts to seek employment that is substantially equivalent. See Lathem v. Dep't of Child. & Youth Servs., 172 F.3d 786 (11th Cir. 1999). In this case, Petitioner did not make serious efforts to obtain substantially equivalent employment, and, thereby, mitigate her loss of income.

    
    

22. Based on all the elements set forth above, the undersigned concludes that it would be more than fair to award

Petitioner two months of back pay with interest. The back pay should be calculated at a rate of $4.29 per hour times 32 hours per week, plus $35 per day in tips. This would amount to

$277.28 in wages per week. The two-month period commencing on April 2, 2012, and ending on June 2, 2012, would amount to nine weeks, for a total of $2,495.52 in back pay, plus interest.

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 Pritesh, Inc., d/b/a IHOP 36-

151 committed an act of unlawful retaliation against Petitioner, and awarding Petitioner back pay in the amount of $3,119.40 with interest.

DONE AND ENTERED this 17th day of October, 2013, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 17th day of October, 2013.

COPIES FURNISHED:

Sushon S. Dillard Apartment 46P

311 South LaSalle Street Durham, North Carolina 27705

Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Pritesh Patel

International House of Pancakes IHOP 151

10332 U.S. Highway

Leesburg, Florida 34788

Cheyanne Costilla, 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: 12-003379

Orders for Case No: 12-003379