The Issue The issue in this case is whether the termination of the Petitioner's employment by the Respondent was an act of retaliation against the Petitioner.
Findings Of Fact Beginning on July 16, 2003, the Petitioner became employed by CFI Resorts Management, Inc. (CFI), in the housekeeping department at Westgate Vacation Villas (Villas). CFI employs more than 15 employees and is the operator of the Westgate Resorts/Westgate Vacation Villas. At all times material to this case, CFI maintained a written anti-discrimination policy and established procedures for the reporting of alleged discrimination. The Petitioner received a copy of the written policy when she became employed by CFI at the Villas. The CFI policies were also accessible on the company intranet, to which all employees had access. From 2003 through 2005, the Petitioner attempted to transfer from the housekeeping department to various other departments at the Villas. Her attempts were unsuccessful, primarily because she lacked the qualifications or experience to perform the jobs she sought. In 2005, while still employed in the housekeeping department, the Petitioner began a consensual sexual relationship with Geoff Price, a supervisor in the security department at the Villas. On February 17, 2006, the Petitioner requested and received a transfer from housekeeping to the Villas security department, where she became employed as a security officer. At the time of the transfer, the Petitioner did not meet basic qualifications for employment as a security officer. She was unable to speak or write English sufficiently to allow her to prepare the reports required by her position. After she began working in the security department, other employees had to assist her in preparing the reports. The Petitioner was routinely late for her assigned work shift, and she sometimes slept on the job. The sexual relationship between the Petitioner and Mr. Price continued after she began her employment in the security department. Other employees were aware that the Petitioner and Mr. Price were engaged in a sexual relationship and were hesitant to complain about her lack of job skills or performance. Security department supervisors were unable to manage the Petitioner because she was involved with Mr. Price. One supervisor testified that the Petitioner was essentially unmanageable because the sexual relationship between the Petitioner and Mr. Price allowed the Petitioner to "get away" with her poor job performance. He testified that other employees had to "walk on egg shells with [the Petitioner] there." The Petitioner received no warnings or written reprimands during her security department employment, and her hourly pay rose from $9.50 to $10.57. The Petitioner and Mr. Price engaged in sexual activity two or three times a month, during working and non-working hours, usually in Mr. Price's office or in hotel rooms at the Villas. The Petitioner and Mr. Price also engaged in sexual activity at the home of Clinton Skinner, a security department manager. On three occasions, Mr. Price surreptitiously recorded video of sexual activity between the Petitioner and Mr. Price using a computer located at Mr. Skinner's home. The videos, dated April 26, 2009, February 11, 2010, and March 24, 2010, were recorded without the Petitioner's knowledge. The video recordings were copied onto at least one DVD and were exhibited at the Villas to other employees by Mr. Price. Both the Petitioner and Mr. Price were married to other people during the period they engaged in sexual activity. The Petitioner became aware that other employees had seen the videos, and she complained to Mr. Price about the recording and exhibition of their sexual activity. In May 2011, the Petitioner discontinued the sexual relationship with Mr. Price. On or about June 6, 2011, the Petitioner contacted Roger Cuccaro (director of security at the Villas) and Angel Rivera (CFI's regional human resources director) and complained about the surreptitious recording, the DVD, and the fact that other employees had been allowed to see the video recordings. The Petitioner submitted a written statement of her complaint to CFI a few days later. CFI commenced an investigation into the Petitioner's allegations. Mr. Price was to be interviewed on June 16, 2011, but he resigned immediately prior to the interview and refused to cooperate in the investigation. The investigation soon expanded to a review of the Villas' security department operations, and numerous employees were interviewed. The investigation revealed the extent of the sexual activity between the Petitioner and Mr. Price and revealed that other co-workers had engaged in similar sexual activity. Additionally, investigators learned that two sexually-involved employees had engaged in an incident of physical violence while at work. CFI investigators also discovered that the Petitioner was unqualified for the position she held, was frequently late for her shift, and was unable to perform essential tasks of her position without assistance from other employees and that she, and other security department employees, would sleep while on the job. CFI investigators reviewed usage of the company email system and discovered that some security department employees, including the Petitioner, had used office computers and email to send numerous explicit pornographic photographs to co-workers and to other persons beginning in 2008 and continuing through 2009. CFI policy prohibits use of office email for various non-business purposes, including dissemination of discriminatory, hostile, suggestive or otherwise inappropriate email. After reviewing the results of the investigation, and in consultation with the corporate human resources director, Mark Waltrip, the chief operating officer for CFI, decided that he needed to "clean house" in the security department. CFI attempts to create a wholesome "family-type" atmosphere for guests staying at its properties. The security department is an important element in maintaining such an environment. Mr. Waltrip reasonably believed that the behavior of numerous security department employees was contrary to the expectations of CFI and was detrimental to operation of the resort. CFI terminated the employment of Security Director Cuccaro, Human Resources Regional Director Rivera, and Security Manager Skinner. All security department employees who participated in the dissemination of the pornographic email, including the Petitioner, were terminated from employment. CFI terminated the employment of other security department employees for various reasons related to the operations of the department. At the hearing, Mr. Waltrip testified that he would have fired Mr. Price had he been presented with the opportunity to do so. The Petitioner's employment by CFI was terminated on August 17, 2011. The Petitioner presented no credible evidence that any of the terminations, including her own, were unreasonable or unwarranted. There was no evidence presented that any of the employees who engaged in dissemination of the pornographic email were not terminated from employment. The evidence failed to establish that CFI terminated the Petitioner's employment in retaliation for her complaint about Mr. Price's surreptitious recording of their sexual encounters and subsequent exhibition of the DVD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint against the Respondent. DONE AND ENTERED this 20th day of September, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of September, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Janice D. Kerr, Esquire J. D. Kerr, P.A. Suite 7 20 South Rose Avenue Kissimmee, Florida 34741 M. Jesusa Cruz Panton, Esquire Panton Law Firm PL 1094 Plaza Drive Kissimmee, Florida 34743 Myrna Lizz Maysonet, Esquire Brandon Hill, Esquire Richard Wayne Epstein, Esquire Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner, due to her handicap, in providing a public accommodation, in violation of Section 760.08, Florida Statutes.
Findings Of Fact Petitioner suffers from a panic disorder for which she requires the assistance of a service animal. Her service animal is a 40-pound German Shepherd mix named "Rocky." Rocky enables Petitioner to overcome certain specific disabilities associated with her condition, but she does not always require Rocky's assistance. In the summer of 2009, Petitioner's mother organized a family vacation in the form of a Caribbean cruise on a vessel operated by Respondent. She selected a cruise departing Port Everglades on August 9, 2009. The group included Petitioner's father, Petitioner's sister, her fiancé, and others. The first port of call for the cruise after departing Fort Lauderdale was Key West, after which the vessel would sail to various ports under the jurisdiction of other countries. On the morning of the departure, Petitioner's then- boyfriend John McCarthy drove her and Rocky from Key Biscayne, where they live in the same condominium building. Mr. McCarthy proved to be a useful witness. He and Petitioner are no longer in a relationship. Mr. McCarthy portrayed the events largely in agreement with Petitioner's version of events, although his reliability is somewhat undermined by the fact that he and Petitioner have discussed many times what exactly took place on that day. However, he displayed a spirited independence from Petitioner, as when he described her decision to file this "lawsuit" as "ridiculous," and, more importantly, admitted that, while in the terminal, he was unsure whether Petitioner wanted to take Rocky with her on the cruise. Much, but not all, of his testimony has been credited. Leaving Key Biscayne that morning, Petitioner did not, in fact, intend to have Rocky accompany her on the cruise. Among other possible reasons, Petitioner's mother had asked her not to bring Rocky, and Petitioner had acceded to her mother's wish. It was Petitioner's intent only for Rocky to see her off. Without incident, Petitioner, Mr. McCarthy, and Rocky left the car at the cruise terminal parking area and made their way into the cruise lobby. The trio entered the lobby amidst swarms of embarking and disembarking passengers. Respondent hosts on its cruises many passengers with disabilities, including some passengers with service animals. Two Carnival managers described Respondent's policies for accommodating disabled passengers. The Guest Access Support manager, Kay Strawderman, explained the process by which persons purchasing cruise tickets are directed to complete a form that provides information about disabilities or special needs. If a passenger is bringing a service animal, Respondent informs the passenger that he or she must contact the U.S. Department of Agriculture for current regulations, by port, governing animals, such as requirements for vaccination records. These regulations are imposed by the countries visited by the vessel and may be enforced even if the animal does not leave the ship. Neither Respondent nor the U.S. government has the authority to permit any deviations from these foreign laws. Using the information provided in the completed forms, the Guest Access Support department compiles a list of special- needs passengers, including passengers who will be bringing service animals. The Guest Access Support department sends this list to the Guest Logistics department. Assigned to the terminal and in direct contact with passengers, Guest Logistics employees ensure the efficient boarding and exiting of the vessels and movement through the terminal. The Guest Logistics manager, Doris Enamorado, testified that her employees use the special-needs lists to ensure that special-needs passengers and, if applicable, their service animals are directed to special boarding areas, so they can board without any delay. Ms. Strawderman and Ms. Enamorado both considered the question of what they would do if a special-needs passenger failed to fill out and return the forms, but arrived at the terminal seeking to board with her service animal. The question is hypothetical because this has never previously happened, including on the day in question. Ms. Strawderman insisted that, if a special-needs passenger failed to return the forms, Respondent would not deny boarding. Ms. Enamorado added that, if one of her employees encountered a passenger with an animal in the terminal seeking to board, the employee would determine if the animal were a service animal, including how it services the disability, and then examine the vaccination records, without which a service animal may not sail due to the requirements of the laws of foreign countries. Shortly after they entered the terminal, Petitioner, Mr. McCarthy, and Rocky were approached by a Carnival employee named "Alex." Respondent invites the inference that Petitioner spontaneously exploded into anger and hysterics. At the hearing, Petitioner displayed a tendency toward combativeness, but none toward spontaneous anger or hysterics. More likely, Alex, upon encountering Petitioner, Mr. McArthur, and a dog in a crowded terminal, momentarily failed to display the composure and dedication to service of Respondent's managerial employees who testified at the hearing. Mr. McCarthy's testimony is especially useful at this point and is largely credited. Approaching Petitioner, Alex abruptly informed her that Rocky could not proceed. It is likely that Alex assumed that Rocky was a mere pet, as he does not wear a special cape or harness and Petitioner does not bear any obvious indication of a disability. Petitioner replied that Rocky was a service dog, and he was present only to see her off on the cruise. Alex replied that Petitioner did not appear to suffer from a disability. As Mr. McCarthy aptly notes, "the fight was on." Each side called for reinforcements. Petitioner spoke on her cellphone with her sister and mother. Alex summoned his supervisor, who joined the fray. Mr. McCarthy and Rocky wisely stood to the side. By now, Petitioner was crying out of control. In this condition, she could not reliably report on what she said to Respondent's employees or what they said to her. Mr. McCarthy seems to have been unable to hear much of what the parties were saying to each other. Respondent's employees report that their behavior was impeccable. Regardless, there is no reliable evidence that Petitioner ever demanded that Rocky, her service animal, board the vessel with her. Much evidence suggests that Petitioner never intended to take Rocky on the cruise. As far as Petitioner's mother or Mr. McArthur knew, Rocky was staying home. Petitioner herself had failed to pack any food for Rocky, nor did she at any time instruct Mr. McArthur to drive to a nearby store to obtain any. No evidence suggests that Petitioner had brought with her any proof of Rocky's vaccinations, which might be required by the various countries that they were visiting. Once on board, Petitioner did not even demand that Respondent allow Rocky to board in Key West. To convince her daughter to board the vessel, Petitioner's mother said that Rocky could join them in Key West. Even after the vessel had sailed, Petitioner, still agitated, spoke constantly with Mr. McCarthy until the vessel sailed out of cellphone range. She directed him to drive Rocky to Key West to join her on the cruise, but Mr. McCarthy, citing a bad back and the fact that his birthday was the next day, declined to do so, instead taking Rocky to South Beach the following day. Mr. McCarthy's testimony suggested a boyfriend who was unwilling to cater to his girlfriend's capricious decision to make an issue with Rocky, not a boyfriend who was unwilling to help right a wrong that his girlfriend had suffered. At some point prior to arriving in Key West, Petitioner realized that Mr. McCarthy had no intention of driving Rocky to Key West. Rather than disembark in Key West, as she wanted, Petitioner acceded to her mother's exhortations and remained on board, but she was very unhappy for the remainder of the cruise.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's amended petition. DONE AND ENTERED this 21st day of September, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 21st day of September, 2010. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608 Martha deZayas, Esquire Carnival Cruise Lines 3655 Northwest 87 Avenue Miami, Florida 33131 Kara S. Nickel, Esquire Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
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 Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of May, 2014.
Findings Of Fact Appellant Thomas J. Bell, Jr., is a Security Officer I at the South Florida State Hospital, Hollywood, Florida, which is operated under the Department of Health and Rehabilitative Services. On September 6, 1977, Bell was issued an oral reprimand by his supervisor Lieutenant John Church of the Security Department at South Florida State Hospital for not obeying standing policy as to the dress code of the department. Bell was observed by Church on duty at Post 6 at approximately 3:15 P.M. with his shirttail out of his trousers and wearing a black leather hat. Church had discussed the question of dress regulations with Bell on a previous occasion and had provided him with a book of regulations together with instructions to follow those rules pertaining to dress. (Testimony of Church) Again, on October 13, 1977, Bell while on duty in the afternoon sometime after 3:00 P.M., was observed by Church at Monroe Gate on the hospital grounds with his shirttail out of his trousers and wearing the same leather cap. He was issued a written reprimand by Church on October 13, 1977 as a result of this incident for violation of written policies concerning dress. (Testimony of Church, Exhibits 1, 3) On February 3, 1978, Bell went to the hospital snack bar to obtain a "take-out lunch." He took his assigned portable radio with him which he placed on the counter. After procuring his bag of food, he left the snack bar and left the radio on the counter. The Security Department was notified by snack bar personnel that the radio had been left there and another security officer was dispatched to return it to the department office. The radio was undamaged. At the hearing, Bell admitted that he had left the radio, but testified that he had merely forgotten it in his rush to gat back to his post. Although the letter of suspension states that Bell received a written reprimand on February 6, 1978, for this incident which was deemed to be an abuse of departmental equipment, the Department of HRS has been unable to show the existence of such a letter to Bell in departmental files. A late filed exhibit of the department reveals only a memorandum from Lieutenant James H. Dryden to R. Bohler on February 6, 1978, which summarizes the September, October and February incidents. (Testimony of Dryden, Exhibit 4) Bell testified at the hearing and although admitting that he was carrying a dark colored cap when going to his post on the date of the incident in September, claimed that he did wear the hat on post. However, he also conceded that it was possible that his shirttail was out. He also acknowledged that Church had discussed the matter with him, but did not use the word "reprimand." He further testified that he had worn the hat in the October incident and when asked about it by the Security Department Chief, had informed him that it was too hot. Bell maintained that he had worn the hat because it was very hot on his post in the afternoons and he had insufficient funds to buy a regulation uniform hat. Although he also sought to show that Lieutenant Church disliked him and was prejudiced against him, Church denied such allegations and it is found that insufficient evidence was presented to establish such a fact. (Testimony of Bell, Church)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1978. COPIES FURNISHED: Conley M. Kennison Attention: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Harold L. Braynon District X Legal Counsel Department of HRS 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311 Thomas J. Bell, Jr. 16420 North West 20 Avenue Opa Locka, Florida 33054
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 10th day of September, 2006.
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
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 dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of July, 2014.
The Issue Whether Respondent committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. Barbara J. Staros 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 19th day of November, 2008.
The Issue Did Respondent, Homewood Suites Hilton (Homewood) located at 16450 Corporate Commerce Way, Fort Myers, Florida, discriminate in provision of public accommodation to Petitioner, Justo Lopez, on account of his race or ethnicity in violation of section 760.08, Florida Statutes (2019)?1 1 All references to the Florida Statutes are to the 2019 compilation unless noted otherwise.
Findings Of Fact Mr. Lopez is a disabled Navy veteran. Mr. Lopez had stayed at Homewood before the events at issue here. On August 3 and 4, 2019, Mr. Lopez was a guest of Homewood. He was there with his wife and four- year-old grandchild. That afternoon Mr. Lopez was doing laundry in the hotel laundry room. He was using both dryers for his clothes. His clothes were drying slowly. While Mr. Lopez was in the laundry room, Deborah Borchart, a Caucasian woman, washed her clothes. Mr. Lopez left the room planning to return later to check on his clothes. Mr. Lopez received a call from the desk clerk telling him another guest wanted to use the dryers. That guest was Ms. Borchart. Mr. Lopez explained that the clothes were drying slowly and needed another half hour. A little later the desk clerk called again about Ms. Borchart wanting to use the dryers. Mr. Lopez returned to check on his clothes. The clothes were not dry. He added coins to the dryer. He told Ms. Borchart that the clothes were not dry and that there would be a wait. Ms. Borchart began yelling and cursing at him, shouting that he was not the only person in the hotel. Mr. Lopez asked her to wait and said that he too was entitled to use the dryers. "Why are you using both dryers?" she asked. She said: "Everybody needs to use the dryers. Take your stuff out or I will call the police." Mr. Lopez removed lint from the dryers to speed up the drying process. He emptied the lint in the garbage can. Mr. Lopez passed within two or three feet of Ms. Borchart to throw the lint away. He did not push Ms. Borchart or step on her foot. After leaving the laundry room, Mr. Lopez told the desk clerk of Ms. Borchart's verbal abuse and threat to call the police. There is no evidence that the desk clerk reported this to the manager, Deborah Clark, who was not on site. After ten or 15 minutes, Mr. Lopez returned to the laundry room to check on his clothes. Ms. Borchart again cursed him, complained about him using the dryers, and threatened to call the police. Mr. Lopez removed his clothes although they were still damp. When he left, he told Ms. Borchart, "Sorry for any inconvenience." He put the clothes in his room. Then he left with his wife and grandchild to find a place to eat. During all of these encounters, Mr. Lopez and Ms. Borchart were the only people in the laundry room. Ms. Borchart told the desk clerk that Mr. Lopez yelled at her, stepped on her foot, and shoved her. Ms. Borchart asked the clerk to call the police. Mr. Lopez did not shove Ms. Borchart or stamp on her foot. Homewood attempted to support Ms. Borchart's reported account of events with hearsay that was not admissible pursuant to a proven hearsay exception and did not corroborate any admissible adverse evidence. The desk clerk called Ms. Clark to report Ms. Borchart's complaint and her demand for a call to law enforcement. Ms. Clark directed the clerk to contact law enforcement and transfer her to the laundry room telephone so she could speak to Ms. Borchart. Ms. Clark did not attempt to speak to Mr. Lopez. The desk clerk called law enforcement for Ms. Borchart. Two deputy sheriffs responded. While Mr. Lopez and his family were looking for a place to eat, a deputy called him and asked where he was. Mr. Lopez told the deputy that he was with his family looking for a place to eat. The deputy called again asking when he would return. The deputy said he and a colleague were at the hotel waiting for Mr. Lopez. Mr. Lopez and his family returned to the hotel to speak with the deputies. One deputy spoke to Mr. Lopez. The other spoke to his wife. The deputies also spoke to employees of Homewood. The deputies did not arrest Mr. Lopez or bring charges against him. Their report of the incident questions the credibility of Ms. Borchart and notes that her foot was not injured. It concludes that "probable cause for an arrest could not be developed for this incident." Ms. Clark claimed she did not know Mr. Lopez's ethnicity. However, Ms. Clark knew Mr. Lopez from previous stays at Homewood. She had met him twice before. These interactions gave her an opportunity to see and hear him. She knew that he was both African American and Hispanic. Mr. Lopez's race is apparent when you look at him. His surname and accent reveal his Hispanic heritage. Ms. Clark's testimony that she did not know Mr. Lopez's ethnicity is not credible, and a factor undermining her credibility in general.2 Ms. Clark directed Homewood employees to evict Mr. Lopez and enlisted assistance from law enforcement. She based this decision solely on 2 Disbelief of the explanation for the alleged discriminatory act accompanied by a suspicion of mendacity permits the trier of fact to infer the ultimate fact of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Ms. Borchart's description of events, either statements made directly to Ms. Clark or statements to Homewood employees. The employees were not present in the laundry room and could only report what Ms. Borchart told them. After interviewing employees, Ms. Borchart, Mr. Lopez, and motel employees to whom Ms. Borchart had talked, a deputy advised Ms. Clark of the conclusion that a crime had not occurred and there was no probable cause for an arrest. It is reasonable to infer that the deputy relayed the observations and conclusions memorialized in an Incident Report, including that Ms. Borchart had no injury, that her statements were inconsistent, that her statements omitted information, and that neither she nor the desk clerk disclosed Mr. Lopez's earlier complaint to the desk clerk about Ms. Borchart's verbal abuse. Nonetheless, Ms. Clark directed the desk clerk to evict Mr. Lopez and his family and ask the deputies to escort them out. Mr. Lopez asked to speak to Ms. Clark. His request was not granted. There is no explanation why Ms. Clark did not speak to Mr. Lopez. Mr. Lopez and Ms. Borchart were similarly situated. Both were guests of Homewood. Both were using the motel's laundry facility. Both complained of the other being abusive. Homewood treated Mr. Lopez differently and worse than it treated Ms. Borchart. Ms. Clark relied solely upon Ms. Borchart's account of events, as recounted by Ms. Borchart or as relayed by Homewood employees. The record offers no explanation why Ms. Clark did not speak to Mr. Lopez. The evidence does not prove why Ms. Clark evicted Mr. Lopez, an African American Hispanic, paying, repeat guest and his family solely upon the statement of a Caucasian female without speaking to the African American Hispanic guest. The totality of the circumstances, the demeanor of the witnesses, and the lack of a persuasive explanation for the decision to evict Mr. Lopez's family without speaking to him reasonably support an inference that the decision was the result of bias against Mr. Lopez on account of his race, ethnicity or both. At Homewood's request, a deputy escorted Mr. Lopez, his wife, and his grandchild to their fifth floor room to gather their belongings. The family was given ten minutes to accomplish this. The officers then escorted the Lopez family to their car on a rainy night. Mr. Lopez begged the employees to permit them to stay the night. They said they were required to comply with Ms. Clark's instruction. During all these events, each time Mr. Lopez and his family passed near the lobby Ms. Borchart, laughing loudly, watched them. A few weeks later, in response to a complaint from Mr. Lopez, Homewood refunded Mr. Lopez's payment for the August 4, 2019, stay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Florida Commission on Human Relations enter a final order granting Mr. Lopez's Petition for Relief and prohibiting Respondent, Homewood Suites, Hilton, from discriminating against Mr. Lopez or any other Hispanic or African American guest in the terms and conditions of lodging there including, but not limited to, accommodations, and guest privileges. DONE AND ENTERED this 18th day of August, 2020, 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 18th day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Justo Lopez Post Office Box 6845 Ithica, New York 14851-6845 (eServed) Stacey M. Bosch, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway Tampa, Florida 33609 (eServed) Richard B. Mangan, Jr., Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway 11th Floor Tampa, Florida 33609 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
