The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Modley is a resident of Shalimar, Florida. He is an African-American male, who at the time of the hearing was 35 years of age. At the time of the hearing, he was employed by Winn Dixie, Inc., as a meat cutter. The Fresh Market is in the grocery business, operates many stores, and is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. The Fresh Market operates a store in Destin, Florida. On November 8, 2006, Mr. Modley applied for a "meat/seafood" position in the Destin store. Mr. Modley had previous experience in similar positions at Publix and Sam's Club. This position required Mr. Modley to process meat and seafood to be sold at retail and to provide customer service. The application submitted by Mr. Modley had upon it a question that stated, "Have you been convicted of a crime in the past 10 years?" Mr. Modley typed in "No." The application also had upon it the following statement, in pertinent part: "I certify that the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal. I authorize The Fresh Market, Inc. to verify all statements contained in this application and to make any necessary reference checks except as limited above for my present employer." The Fresh Market employed Mr. Modley as a meat cutter subsequent to his application. Mr. Modley was aware at the inception of his employment on January 19, 2007, that a person from the southern part of the state would soon arrive and assume the position of meat manager. Mr. Modley assumed, without any foundation whatsoever, that he was next in line to become meat manager. Saul Zaute, an experienced meat manager, who had been working for The Fresh Market in South Florida, assumed the position of meat manager shortly after Mr. Modley began working as a meat cutter. After 90 days of employment, Mr. Modley became eligible for certain fringe benefits. During an open enrollment period for insurance benefits, Mr. Modley sought insurance coverage for his wife and his "domestic partner." On May 7, 2007, Mr. Modley completed and signed a Declaration of Domestic Partnership Form declaring "under penalty of perjury" that he and his "domestic partner" were "not married to anyone" and that he and his "domestic partner" met all criteria for "domestic partnership." On this application he did not mention his wife. Following open enrollment periods, the Fresh Market's Benefits Department conducts a review of all applications for domestic partner benefits to ensure that the applicants meet the criteria specified on the Declaration of Domestic Partnership Form. The employee assigned to accomplish this was Martha Holt. Ms. Holt worked in Greensboro, North Carolina, and she was not acquainted with Mr. Modley. Ms. Holt reviewed the 14 domestic partner applications received during open enrollment by The Fresh Market. She did this by conducting a public records search on the internet. Ms. Holt noted the first application for insurance benefits listed a spouse. Ms. Holt was unable to find any record of Mr. Modley having divorced his wife. While searching for information that might illuminate Mr. Modley's marital status, Ms. Holt discovered that he had a criminal history. This became important because of Mr. Modley's assertion on his employment application that he had not been convicted of a crime in the past 10 years. It is noted at this point that Mr. Modley had not been convicted of any crime because judgment was withheld on his several criminal cases. When a judge withholds adjudication, the defendant has not been convicted, even though he may have been found guilty. Ms. Holt relayed the discovery of Mr. Modley's criminal history to her supervisor who informed Bill Bailey, Vice President of Human Resources for The Fresh Market, and Christine Caldwell, Regional Human Resources Coordinator. Mr. Bailey conducted his own Internet research and discovered that Mr. Modley was serving a two-year supervised probation for a felony, which was committed on November 30, 2005. Mr. Bailey erroneously concluded that Mr. Modley had falsified his application for employment. At the request of Mr. Bailey, District Manager Debbie Smart asked Mr. Modley directly if he had been convicted of a felony. Mr. Modley denied having any felony convictions. Mr. Modley, while not exactly dissembling, was not being helpful in illuminating this conundrum. A more honest answer would have informed Ms. Smart that he had been found guilty of several felonies, but had never been adjudicated and, therefore, convicted. Subsequent to Ms. Smart's request, on August 23, 2007, Mr. Modley signed a consent form authorizing The Fresh Market to employ an outside agency to conduct a more detailed criminal background check. The background check, conducted by an outside agency named Insight, resulted in a report indicating guilty findings with resultant sentences of 14 counts of uttering, larceny, procuring for prostitution, using false information to obtain a driver's license, and a failure to appear. Nothing in the Insight report indicates that Mr. Modley was found adjudicated of a felony. Melvin Hamilton was the regional vice-president charged with supervising the store in which Mr. Modley worked. When he was informed of the perceived discrepancy regarding Mr. Modley's job application, he decided to terminate Mr. Modley. No evidence was produced that indicated Mr. Hamilton was aware of Mr. Modley's race, and, in fact, Mr. Hamilton is an African-American. Mr. Hamilton's decision to discharge Mr. Modley was based on information that, at least in a technical sense, was incorrect. However incorrect the basis, the decision was not grounded in racial discrimination. During the time period December 2005 and February 2008, The Fresh Market terminated seven employees for falsifying their employment applications. Of those seven employees, four were white and three were African-American. When Saul Zaute left in late July 2007, The Fresh Market advertised a vacancy for the position of meat manager. This was done by a posting in the store and an advertisement in a local newspaper. This is the method normally used by The Fresh Market when seeking applicants for a position. At no time did Mr. Modley apply for the job of meat manager even though the position was advertised similarly to other positions. It appears that he continued under the erroneous belief that when he began his employment, The Fresh Market was aware that he eventually desired to be meat manager. How he came to that conclusion was not explained. The employee hired as meat manager was Gary Arnold. Mr. Arnold had many years of experience as a meat manager. Mr. Arnold had owned an operated a meat market for 17 years and had served as meat manager for two facilities totaling 19 years. The Fresh Market has an active anti-discrimination program and maintains policies and procedures to effect that program. Mr. Modley did not complain about any discrimination pursuant to those policies or in any other manner during the time he was employed by The Fresh Market.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Carlos T. Modley be dismissed. DONE AND ENTERED this 10th day of June, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 June, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Regina Alberini Young, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 Carlos T. Modley Post Office Box 430 Shalimar, Florida 32579 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May 1994.
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated October 2, 2012, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 12326 University Mall Court, Tampa, Florida, 33612, holding Permanent Food Service license no. NOS3915662. On September 25, 2012, Douglas Peterson, an experienced sanitation and safety specialist with the Division, performed a routine inspection of Respondent. Mr. Peterson has been employed by the Division for six years and has conducted approximately 1,000 inspections per year. He inspected Subway in the early afternoon, accompanied by one of Respondent's employees, not identified, but described as a young man who was working the counter. Mr. Peterson utilized a personal data assistant to record his findings in an inspection report that he prepared while conducting the inspection. During the inspection, Mr. Peterson observed a number of live roaches in three different areas and recorded his observations in the inspection report. Mr. Peterson counted ten live roaches under the three-compartment sink between the wall and the sink; there were three live roaches in an old reach-in cooler next to the walk-in cooler; and there were four more live roaches under and behind the ice machine. In addition, Mr. Peterson observed dead roaches by the old reach-in cooler next to the walk-in cooler. Mr. Peterson pulled out the reach-in cooler and found more dead roaches in the compressor compartment. Mr. Peterson's testimony regarding the roach activity he observed was credible and unrebutted. A critical violation of the Food Code is a violation that is likely to contribute to food contamination, illness, and other environmental health hazards. The observed presence of 17 live roaches at multiple locations in Respondent's establishment was a "critical violation" of the Food Code, because roaches are capable of transmitting disease to humans by contaminating food and cross-contaminating food contact surfaces. Respondent pointed out that none of the live roaches were observed directly on food contact surfaces. However, the fact that the live roaches were found in dark areas of refuge (in, under, or behind equipment and sinks) in mid-afternoon, while the restaurant was open, does not mean the danger of contamination can be minimized. To the contrary, the presence of a large number of live roaches in multiple areas--including areas near where food is stored and prepared and where dishes are washed--is a significant contamination threat. Due to the large number of live roaches observed in multiple locations, Mr. Peterson determined that the critical violation was significant enough that it required immediate attention, and his inspection report recommended that restaurant operations stop temporarily until the roach infestation was alleviated. Based on Mr. Peterson's report, the Division entered an emergency order of suspension, and Subway was temporarily closed to correct the violation, with a follow-up inspection the next morning. Julian Paz, the store manager, was not present during the inspection, but he arrived after Mr. Peterson had sent his inspection report to the Division for a determination regarding whether an emergency suspension order would be issued. Mr. Peterson discussed the inspection report's findings with Mr. Paz, and Mr. Paz signed the inspection report on behalf of Respondent. At hearing, Mr. Paz described the steps taken by Subway in an attempt to control the presence of roaches. He testified that someone from Orkin comes the first Thursday of every month to perform a routine inspection and pest control service. The mall in which Subway is located also has monthly pest control service. In addition, the Subway restaurant undergoes a Subway corporate inspection at a random time every month. Mr. Paz also described the steps taken by Subway employees, including cleaning the store three or four times a day, sweeping and mopping, and cleaning the surfaces. When there are deliveries, either he or his assistant inspects the boxes for signs of rodent or pest activity. Mr. Paz testified that he thought that both Orkin and the Subway corporate inspector had conducted inspections as recently as the day before Mr. Peterson's inspection. The Division presented no evidence of prior disciplinary action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order determining that Respondent violated rule 6-501.111 of the Food Code and imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 10th day of May, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 10th day of May, 2013.
Findings Of Fact In February of 1983, petitioner Fred D. Wallace began working for respondent as a meat inspector. Although other meat inspectors were assigned to federal facilities for training, he never was. Petitioner feels he was not sent for training because he was black and that his having a bachelor's degree in agriculture had nothing to do with it. He also testified that unfavorable evaluations were attributable to his being black. Except for petitioner's race, the evidence did not establish the race of respondent's employees.
The Issue The issue is whether Respondent's failure to hire Petitioner constituted discrimination on the basis of religion, as provided by section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner graduated from the University of Rhode Island with a bachelor's degree in marketing management. He has had an unbroken employment history from 1980 to present. Respondent was employed as a sales representative of casual and sports shoes in south Florida from 1980 to early 1997. After owning and operating a sandwich shop with 60 seats in Boca Raton for six years, Petitioner resumed work as a sales representative of sports shoes for two years. From 2006 through 2009, Petitioner was employed as a marketer and sales representative for various retail lines unrelated to food. For four and one-half years, ending in late 2013, Petitioner was employed as a merchandiser of various Nestle ice- cream products to Publix, Winn-Dixie, Target, and Walmart outlets in West Palm Beach; one of these products was Haagen-Dazs ice cream, which is a natural food. In 2014, Petitioner owned and operated a salad restaurant with 20 seats in Delray Beach. From 2015 to present, for 20 hours weekly, Petitioner has served as a concierge at a private tennis club in Boca Raton. Also, for 2017 and the first half of 2018, for 20 hours weekly, Petitioner also was employed as a merchandiser of Nabisco cookies and crackers to Publix, Walmart, and Target outlets from West Palm Beach to Fort Lauderdale; none of these products is a natural food. Respondent is a distributor of natural foods to retail outlets. At all material times, Respondent employed at least 15 persons for each working day in at least 20 calendar weeks. In 2017, Petitioner submitted a job application to Respondent for a full-time job as a merchandiser with Respondent. A representative of Respondent contacted Petitioner and set up an appointment for a job interview on July 12, 2017, at a Hampton Inn in Coconut Creek. Keith Olsen, Respondent's manager of retail merchandising, conducted the interview. The interview started unremarkably, as Mr. Olsen described the job, which entailed considerable air travel. Petitioner mentioned that he lived between two major airports. Mr. Olsen then asked Petitioner if he lived in a Jewish community. Petitioner replied that he lived by the beach. Examining Petitioner's resume, Mr. Olsen then asked if Petitioner was Jewish. Petitioner confirmed that he is Jewish. Mr. Olsen said that Respondent, which distributes four or five Kosher food items, sold Kosher food in Boca Raton and Delray Beach, and Mr. Olsen was interested in whether Petitioner might be able to reinvigorate Respondent's lagging Kosher sales. Petitioner then recited his experience in the food industry, and Mr. Olsen said that Petitioner had "plenty" of relevant experience. After Mr. Olsen summarized the benefits, Petitioner noted that he might save them some money on health insurance because he had his own. Mr. Olsen asked if his insurance was the "Obamacare crap," and Petitioner did not reply. Sensing that his inquiry about Petitioner's religion had irritated Petitioner, Mr. Olsen tried to regain his footing by recalling that, as a child, he had delivered newspapers to "Jews, Catholics, and Christians," but this comment, itself awkward, did not dispel the unease created by Mr. Olsen's earlier question of whether Petitioner was Jewish. To his credit, Mr. Olsen testified candidly, countering two or three specific items of Petitioner's testimony with no more than tepid "I don't recall" answers. His candor supports his remaining testimony concerning the interview process, as set forth immediately below. Respondent received over 200 applications for this position. Mr. Olsen scheduled 11 interviews for July 12, but only eight applicants showed up for their interviews. Having conducted numerous interviews for Respondent, Mr. Olsen always assesses interviewees as to five attributes: customer service, communication skill, ability to read planograms (i.e., diagrams showing the strategic placement of products on shelves), product knowledge, and awareness of national trends. Among the eight interviewees, Richard Magnum demonstrated his superior qualifications as to these five attributes. Mr. Magnum had over 17 years' experience in customer service and merchandising and was "very direct" with his answers. Petitioner's customer service and communication skills placed him third among the eight interviewees as to these attributes. Mr. Magnum also demonstrated easy familiarity with planograms and ranked first among the interviewees as to knowledge of the family of products purveyed by Respondent; Petitioner and another interviewee were tied for second as to product knowledge. As for national trends, Mr. Magnum "seemed to know what's going on." "National trends" seems to have something to do with marketing and the fact that Respondent has over 90,000 SKUs, which evidently underscores the large number of products handled by Respondent. Following the completion of the interview process, Respondent offered the job to Mr. Magnum, who was still employed by Respondent at the time of the hearing. On these facts, Petitioner has failed to prove that his qualifications were at least equal to those of Mr. Magnum.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of November, 2018, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Daniel Askinas 1208 East Atlantic Avenue, Apartment A Delray Beach, Florida 33483 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this case is whether Respondent, Steak N Shake, discriminated against Petitioner, Western Ulysse, on the basis of his national origin (Haitian), or race (black), in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black man, born in Haiti. He was hired by Steak N Shake on April 26, 1998, as a production worker and cook. He was later promoted to a manager position at Store No. 281 in Lake Buena Vista. He worked at that store for about eight years and then transferred to Store No. 280 on West Colonial Drive in Orlando (the "Store") on an unspecified date. The general manager at the Store was Judith Freeman, a white female. There was one other manager at the store, Ilia Velez, a Hispanic woman.1/ Petitioner's duties as manager at the Store included providing good service to customers, maintaining an appropriate number of employees each day, ordering food and other supplies for the Store, and ensuring cleanliness and orderliness at the Store. It was also the duty of managers to make bank deposits of daily receipts. Petitioner did not have an exact time for starting work each day, but said he normally started at about noon for the "day shift." Each and every day, managers at the Store would complete a Daily Cash to Account for Form (the "TAF Form"), reflecting the amount of money collected on each of the three daily shifts. The first shift was late night/early morning; the second shift was the day shift; and the third shift was evening. As day-shift manager, Petitioner would sign the TAF Form for receipts from the night shift. It was then incumbent upon him to deposit the collected monies at the bank. A TAF Form was to be signed by two individuals, one of whom (generally a manager) would indicate by his/her signature that they would be responsible for depositing the receipts. According to Steak N Shake policy, deposits had to be made at the bank by a manager "and one other Steak N Shake employee. NO ONE GOES TO THE BANK ALONE." That policy was in place at the Store when Petitioner served as manager. However, it was common practice at the Store for Petitioner or another manager to go to the bank alone. Petitioner knew the policy and knew that his employment could be terminated for violating the policy. He explained that sometimes on first shift there were only two people at the store in the morning, so he had to go to the bank alone. Steak N Shake policies allow for a police officer to substitute as one of the two required persons. Further, an employee who cannot comply with the policy is supposed to contact the district manager as soon as possible. Nonetheless, the policy was routinely ignored by managers at the Store during the 2011 time-frame. It was also policy for the bank deposit to be made before 11:00 a.m. for the previous night's receipts. Petitioner did not explain how he complied with that requirement when he normally arrived at work at noon. He apparently worked earlier shifts some days and day shifts other days, but there is insufficient evidence in the record to substantiate that presumption. On May 24, 2011, however, Petitioner testified that he arrived at work around 7:00 a.m. At approximately 10:41 a.m., Petitioner signed the TAF Form from the previous day, indicating a deposit amount of $770.47 (the "Deposit"). Petitioner signed the TAF Form on the line of the form designated "Witnessed By" when, in fact, he, as manager, should have signed on the line designated "Deposited By." On this particular form, it appears the manager and the other employee signed on the wrong lines. Regardless of that scrivener's error, Petitioner became responsible for taking the Deposit to the bank once he signed the TAF Form. Petitioner said there were only two people working that morning, but the work schedule for the Store indicates at least five other persons were on the schedule for that morning. None of the workers was called to testify at final hearing, but the general manager, Ms. Freeman, said she believed they were all working that day. Ms. Freeman was also scheduled to work that day, but was taking part in management training outside the store. Petitioner did not notify the district manager that he could not comply with the banking policy. The Deposit was never received by the bank. Petitioner said at final hearing that he did not go to the bank with the Deposit, even though he had signed for it. He believes he sent another manager with the Deposit because it was very busy that morning, and there were not enough employees available to handle the work. His testimony in that regard is not persuasive, because the bank deposit slip for May 24, 2011, was signed by Petitioner. On June 9, 2011, the general manager, Ms. Briel, was told that the Deposit had never been made at the bank. She contacted the Store's general manager, Ms. Freeman, and asked her to investigate. Ms. Freeman did so, but could not locate the missing money. The bank also tried, but failed to locate the missing money. Ms. Freeman then contacted Petitioner to let him know the Deposit he had signed for was missing. Petitioner was given the opportunity to replace the missing money from his own funds to prevent termination of his employment, but said he did not have sufficient money in his account to do so. After completing her investigation, Ms. Freeman met Ms. Briel at a site away from the Store and disclosed her findings. Per protocol, the police were called to investigate the missing funds. No arrest was ever made, however. Ms. Briel considered Ms. Freeman's findings, consulted with the division president, the human resources department, and legal counsel and decided to terminate Petitioner's employment with Steak N Shake. Ms. Briel also issued counseling statements to Ms. Freeman and Ms. Velez relating to their failure to strictly adhere to the banking policies. Ultimately, Ms. Freeman was demoted to restaurant manager and transferred to another store due, in large part, to the violation of company policies relating to bank deposits. Petitioner had been counseled several times for shortcomings, but none of the violations were related to banking policies. Nonetheless, Petitioner was made aware that further disciplinary action against him for any issue may result in the termination of his employment. Petitioner feels he was treated differently than Ms. Velez, who he maintains also lost a deposit. However, Ms. Velez's deposit was ultimately accounted for by the bank, which had made a mistake. Petitioner's deposit was never accounted for by the bank or by anyone else. Ms. Velez's employment with Steak N Shake was ultimately terminated for "performance issues." Other managers have lost deposits and/or stolen money from Steak N Shake. In every instance, the offending manager's employment was terminated. There is zero tolerance at Steak N Shake for misappropriation of money. Petitioner cannot recite any incident of discrimination against him by Steak N Shake on the basis of his race or national origin. Petitioner did not ever avail himself of the procedures for issuing a complaint based on discrimination while he was employed at Steak N Shake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Western Ulysse's Petition for Relief. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 August, 2012.
