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.
The Issue Whether, Respondent, Asurion Services, LLC (“Respondent” or “Asurion”), engaged in unlawful employment practices as alleged by Petitioner, Annemarie Wolny (“Petitioner”), in violation of the Florida Civil Rights Act of 1992 (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1 1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Asurion is a provider of electronic device insurance, warranty and support services for cellular phones, consumer electronics, and home appliances. As part of its services, Asurion provides technological support and repair services for the world’s leading mobile carriers, retail companies, and other businesses, enabling subscribers and customers to fully utilize their digital devices, applications, and equipment. Asurion is an employer as defined by the FCRA. See § 760.02(7), Fla. Stat. Petitioner was employed as a Service Advisor with Asurion’s Service Operations Program beginning on March 27, 2017. Essential job functions of the Service Advisor role include: the ability to utilize active listening skills and troubleshoot resolutions; the use of proper tone in providing information to customers and service providers; and the ability to resolve escalation and complaints, among other things. As a Service Advisor, Petitioner was responsible for working and negotiating with Asurion’s network of service providers to ensure a high level of customer satisfaction in their repair experience. Service Advisors are trained during their first week of employment, and thereafter, can access online training tools at any time during their employment. When hired, Petitioner received an electronic copy of Asurion’s Employee Handbook which contains, inter alia, Asurion’s equal opportunity employment policy prohibiting “discriminat[ion] against applicants or employees on the basis of … physical or mental disability….” The Employee Handbook also outlines Asurion’s Reasonable Accommodation policy, Attendance policy, and Customer Relations and Professional Behavior policy. During her early months of employment with Asurion, Petitioner established a reputation as a quick learner, and was eager to acquire new knowledge and skills, while maintaining a keen sense of awareness to detail. Petitioner was trained in several different departments at Asurion, and was willing to work during the holidays. During the first several months of her employment, Petitioner earned a number of accolades for quality work, including being recognized as employee of the month for December 2017. Field service managers would often recognize Petitioner’s hard work. Due to the quality of her work, Asurion auditors would frequently reach out to Petitioner and compliment her on her work. Sometimes agents from other teams would congratulate Petitioner on her work, since it made their jobs easier. On one occasion, a customer even wrote a letter to Asurion reporting the “impeccable” service they had received from Petitioner. In June of 2017, Petitioner witnessed a colleague being bullied by another colleague. The victim of this incident was crying at her desk, which made Petitioner believe that this treatment needed to be reported to her superiors. Petitioner reported the incident to her supervisor, Marie Alter. A few months later, Petitioner was reassigned to another department. On another occasion (July or August 2017), Supervisor Megan Bass confided in Petitioner her dislike for Petitioner’s African-American colleague, Ebony Shipman. Ms. Bass slandered Ms. Shipman to Petitioner, alleging that Ms. Shipman almost hurt Ms. Bass’s chance for promotion. On October 14, 2017, Petitioner and her four-year-old daughter were the victims of a violent and brutal physical attack. Following the attack, Petitioner began to display signs of mental illness, and as a consequence, began seeing a mental health counselor. This illness was diagnosed as Post Traumatic Stress Disorder (“PTSD”). Approximately three months following the October 2017 incident, Petitioner experienced a second traumatic event, which further compounded her PTSD. In an effort to continue her ability to function at work, Petitioner requested accommodations for her PTSD condition. Specifically, Petitioner requested on different occasions to have additional paid breaks during her shift, to be moved to a team that did not handle customer escalation calls, and to have intermittent leave under the Family and Medical Leave Act (“FMLA”). As a result of this request, Petitioner was approved for three 10 to 15 minute unpaid breaks. In early 2018, Petitioner witnessed harassment and discrimination towards disabled colleagues, and other colleagues. Being subjected to this inappropriate behavior triggered Petitioner’s PTSD, and so she requested a one-on-one meeting with her then-manager, Nestor Lebron, in February of 2018 to discuss her discomfort with her working conditions. At hearing, the work culture at Asurion’s Command Center was described by former and current employees as toxic and unprofessional. In addition, some employees were treated more favorably by supervisors than others. The consistency of their description of the dysfunctional workplace lends credibility to their testimony. In March or April 2018, Petitioner requested to work from home as she was becoming extremely sensitive working in a hostile work environment in which she felt she and her colleagues were being targeted for harassment. Even though Asurion had many work-at-home agents, Petitioner’s request was initially denied. On April 12, 2018, Petitioner met with Lauren Welch from Human Resources to discuss her requested work-at-home position. In this meeting, Petitioner discussed her troubling observations of the activities going on in the Command Center, including the unfair and unequal treatment that Petitioner had observed in that workplace. During this meeting, Petitioner offered to provide Asurion with medical documentation of her PTSD illness to assist with her work-at-home approval. Ms. Welch advised that documentation was not necessary. During the meeting of April 12, 2018, Petitioner made her first of many requests to be transferred to the SST Team, working with the Parts Department. Petitioner had worked on this team previously and had found it to be less stressful. Petitioner was not reassigned to this department, but subsequently learned that other agents, including Beverly Miller, Ray Legliter, and Mary Henderson, were all moved to that department following Petitioner’s request. While Petitioner was not approved for transfer to the Parts Department, her request to work from home was approved, effective April 30, 2018. Petitioner discussed her medical condition with her supervisor, Marie Alter, during a one-on-one meeting on May 11, 2018. During her first month of working from home, Petitioner was falsely accused by Ms. Alter of performing certain unprofessional actions. While Petitioner consistently maintained that she had not acted inappropriately, Ms. Alter did not relent in her accusations. Understandably, these unfounded accusations reinforced Petitioner’s belief that she was being targeted for harassment. On June 15, 2018, Petitioner received a “Final Warning” following her telephonic interaction with an employee of a contracted service center. As Petitioner explained at hearing, “I was mistreated by an employee that was contracted through Defendant. This employee works with Defendant to repair appliances. This woman was being argumentative and refused to provide the answers I needed to perform my work.” In response to the verbal abuse she was receiving, Petitioner disconnected the call. The Final Warning noted that “Your tone overall became curt, short and very defensive.” Petitioner acknowledged that she could have done a better job de-escalating the situation, and requested that she be approved for additional training, including listening in on other escalated calls. In response to Petitioner’s request for some kind of plan to help strengthen her performance in an area she struggled with, an Action Path meeting was created with Supervisor Marie Alter on June 25, 2018, for every Monday. The first meeting was scheduled for July 2, 2018, and in a follow-up email from Ms. Alter, it was explained that the meetings over the next couple of months would focus on improving Petitioner’s communications with providers and customers. However, on July 9, 2018, Petitioner’s Action Path was cancelled, without explanation. Petitioner made ongoing efforts to clearly communicate to Asurion the effects of her PTSD on her mental condition, and the impact that stress had on exacerbating her condition. Although Petitioner had made several requests to listen to a call where an agent successfully de-escalated an escalated client, she was advised Asurion could not locate any. However, in July 2018, quality analysts graded a call in front of the entire Command Center of an African-American woman, Tangia Carter. Ms. Carter received a score of 10 out of 100. No effort was made to hide the identity of the employee being graded. The employee was humiliated and embarrassed as a result. Petitioner reported this incident to her supervisor. In July 2018, another agent disconnected a call with a customer. The agent, Josh Johnson, had the same supervisor as Petitioner at the time Petitioner received her Final Warning for the same offense. However, unlike Petitioner, Mr. Johnson did not receive a Final Warning for disconnecting the call. On August 20, 2018, Petitioner sent an e-mail to Human Resources’ employee Logan Durham advising that the training verbally promised to Petitioner had not been provided. Petitioner also advised Mr. Durham that her request to listen to phone calls of highly escalated customers in an effort to better understand tone and effectively de-escalate customers had not been approved. In a September 11, 2018, Zoom meeting with Tiffany Trevino of Human Resources, Petitioner made another request to listen to highly escalated calls to gain a better understanding of tone and how to de-escalate customers effectively. Petitioner had come prepared to the meeting with concerns to discuss. However, Ms. Trevino would not allow Petitioner to speak, and asked her not to read her notes. After the meeting, Petitioner e- mailed her notes to Ms. Trevino so that it was documented that Asurion had been made aware of her concerns. Seven days following Petitioner’s conversation with Human Resources requesting that she be transferred to a less escalated team, an opportunity opened up in the Command Center. Specifically, on September 18, 2018, there was an opening on the SPT Team. This team is lower in escalations as the customers are rarely contacted, and agents only make recommendations of how to proceed with a claim. Rather than transferring Petitioner to the now-available lower-stress position, Asurion added required qualifications it knew would render Petitioner ineligible for the position. Those requirements were that an agent could not be on any corrective action (Petitioner was on a final written warning); the agent must work “brick and mortar” (Petitioner worked from home); and the agent must be performing well in quality metrics (the only area Petitioner needed improvement on was her quality metrics). The OEM Team, which is another low stress team that communicates primarily via e-mail, was created around the same time. On September 24, 2018, an e-mail was sent from Supervisor Megan Bass advising of the creation of the team, however, Petitioner was not included on the e-mail. In October 2018, Christina Oregon, another agent who had disconnected a customer call (requiring corporate involvement), was promoted to the SPT Team. On November 14, 2018, and again on January 23, 2019, Petitioner made additional requests to Human Resources for permission to listen to highly escalated calls in order to improve her de-escalation skills. In response to these requests, Petitioner was advised by Ms. Trevino that this request could not be considered training. When Petitioner again asked about being transferred to a lower-stress team, Ms. Trevino advised Petitioner that she would have to apply for the position the same way people without a disability would have to. Ms. Trevino made this statement to Petitioner even though she knew Petitioner was ineligible due to the final written warning she had received. In September of 2018, Petitioner sent in a task to be reviewed by the Audit Department. The claim was incorrectly worked by another agent, and had left a senior citizen without a working refrigerator for two weeks. Going against the company's best interest, as well as the customer’s, Supervisor Megan Bass retaliated against Petitioner, advising that the delayed process this agent took was in fact correct. Normally, when something is sent to the Audit Department, the claim is handled from there. It was not protocol to send it back to the agent who sent it in. It was Petitioner’s responsibility to report any issues she observed with workflow, and Ms. Bass’s response to Petitioner’s legitimate concern with customer service served to further harass Petitioner. Petitioner provided numerous examples of being ignored by her supervisors when requesting assistance with customer complaints and workflow concerns. In contrast, her colleagues were receiving immediate assistance from the leadership team in addressing their concerns. For example, on November 22, 2019, a customer Petitioner was working with requested to speak with a supervisor, but Petitioner was advised that none were available to assist. Throughout the duration of this claim, no supervisor called this customer back. Later, Petitioner was reprimanded for not offering the customer a gift card for his inconvenience. When Petitioner expressed her dismay about supervisors not returning calls to customers, she was again met with a reprimand for offering the customer a supervisor callback. Petitioner’s actions were correct, and were consistent with the training she had received on the company’s operating procedures. The hostile working conditions described above resulted in Petitioner experiencing a debilitating panic attack, leaving work early, and visiting a hospital emergency room on November 26, 2019. This panic attack affected Petitioner’s ability to think clearly and function normally. Pursuant to Asurion’s policy, Petitioner reported her absence from work to the AbsenceOne system, from the emergency room. The AbsenceOne system automatically notifies Asurion, including Petitioner’s supervisors, of absences via e-mail. The following morning, with the panic attack continuing, Petitioner was able to collect herself enough to explain what had happened to her supervisor, TJ Mark. In response, Petitioner received a final written warning for not contacting her supervisor immediately upon her absence from work. On April 28, 2020, Petitioner’s first day back from a week-long panic attack episode triggered by Asurion’s hostile work environment, Petitioner was terminated by Respondent for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. Petitioner had been belittled by this customer after issuing a denial for physical damage to his ice bucket. Per the service agreement, Asurion does not cover any failure caused by physical damage, intentional or otherwise, a result the customer was not willing to accept. Again, Petitioner’s actions on the call were consistent with her training, and were appropriate. As Petitioner credibly testified at hearing: The customer was clearly argumentative and I kept repeating, have a nice day, as I did not want to argue with him about what I was trained to do. Due to the rationale provided, I felt that I had made the best decision under the circumstances. Honestly, I was going to be retaliated against no matter what route was taken. If I offered a supervisor, I would have been in reprimand for offering a supervisor on a physically damaged ice bucket that did not affect the function of the ice maker. Following her termination, an e-mail was sent out to all employees in the Command Center advising of Petitioner’s termination and reason for termination. As a result of this email, approximately 200 employees were informed of the reason for Petitioner’s termination, which Asurion identified as “gross misconduct.” No other terminated Asurion employees were subjected to this form of public humiliation. The evidence credibly established that Petitioner was subjected to a hostile work environment, was not provided the reasonable accommodation she requested, and was retaliated against for engaging in protected behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Annemarie Wolny’s Petition for Relief, as follows: Finding that Respondent, Asurion, engaged in a discriminatory employment practice based on Petitioner’s disability; Awarding Petitioner back pay from the date of termination; and Awarding Petitioner reimbursement for mental health services incurred as a result of Asurion’s misconduct. DONE AND ENTERED this 28th day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annemarie Wolny W4598 County Road RR Random Lake, Wisconsin 53072 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Deadrick Thaxton Asurion Suite 300 648 Grassmere Park Nashville, Tennessee 37211 Casey M. Duhart, Esquire Waller Lansden Dortch & Davis, LLP Suite 2700 511 Union Street Nashville, Tennessee 37219
The Issue Whether Respondent discriminated against Petitioner because of his race, sex or religion.
Findings Of Fact Respondent owns and operates the Valu-Lodge Motel located at 4810 West Highway 98, Panama City Beach, Florida. The motel offers rooms for rent to the public and is a "transient public lodging establishment" within the meaning of Florida Statutes. Petitioner is a white male. His national origin is American. Although Petitioner’s complaint and petition indicate that Petitioner espouses to be a member of the Church of Christ, there was no evidence presented at the hearing regarding Petitioner’s religion. On September 9, 2004, Petitioner rented a motel room from Respondent at its Panama City Beach motel. The rental term was week to week. At some point, Respondent felt Petitioner had become disruptive to the operation of the hotel and to its guests. On November 25, 2005, Respondent informed Petitioner that it would no longer rent a room to Petitioner and hand-delivered a Notice of Termination of Lease to Petitioner. The Notice stated that Petitioner must vacate the premises by December 1, 2005. Petitioner refused to vacate the motel premises. On December 9, 2005, Respondent hand-delivered a Fifteen Day Notice for Possession of Premises to Petitioner. The Notice indicated that no further rent would be accepted. Petitioner again refused to vacate the premises. Petitioner also did not pay any further rent to Respondent. Respondent filed an eviction proceeding against Petitioner. The first and second eviction proceedings appear to have been dismissed for procedural reasons. However, the third eviction proceeding was successful. During that proceeding, Petitioner had the opportunity to defend against eviction based on the claims of discrimination raised in this matter. However, on June 22, 2007, after hearing, Respondent received a final judgment, awarding the Intown Companies, Inc., $19,213.18 in unpaid rent, plus interest. Respondent also received a Final Judgment of Eviction awarding the Company possession of the premises and court costs. A Writ of Possession was issued on June 25, 2007, and Petitioner vacated the premises on June 27, 2008. There was no evidence presented by Petitioner that demonstrated Respondent discriminated against Petitioner in any manner. There was absolutely no evidence of any racial, nationalistic or religious bias on the part of Respondent. Apparently, Petitioner believes that he is entitled to rent a room from Respondent simply because he is a member of the public and desires to rent a room from Respondent. Neither the facts, nor the law supports Petitioner’s misinformed view of the view of the law. Given the utter lack of evidence presented by Petitioner, the Petition for Relief should be dismissed.
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 Petition for Relief. DONE AND ENTERED this 3rd day of September 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 3rd day of September 2008. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Alan Johnson 20417 Panama City Beach Parkway No. 8 Panama City Beach, Florida 32413 Melton Harrell, Authorized Agent The Intown Companies, Inc. d/b/a Valu Lodge American Motel Management, Inc. 2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023
The Issue Whether Respondent committed a discriminatory housing practice against Petitioner as alleged in the Petition for Relief dated February 22, 2005, and if so, what relief should the Florida Commission on Human Relations provide.
Findings Of Fact Petitioner, Wana Dennard (Petitioner or Dennard), is African-American; it is undisputed that Petitioner is a member of a "protected class" of persons protected from discrimination based upon race pursuant to the Fair Housing Act. Respondent, Charter Realty Group (Respondent or Charter), manages a residential apartment complex (the community) subsidized by HUD. Respondent, Ada Pumerol, has served as Charter's on-site property manager for approximately three years; she has worked as a property manager for over 20 years. Respondent Maria Stewart (Stewart) was not identified by competent evidence presented at hearing, and no evidence was offered against her; accordingly, it is determined that Petitioner has abandoned any claim of discrimination against Stewart and/or failed to meet her burden of proof with respect to Stewart. Dennard has resided in Unit 103 of the community since April 1996. At the time she moved to the community, three children resided with her. At some point(s), the two older children moved out. At times relevant to this case, the youngest child, then aged 17, lived with Petitioner. Latisha Thomas (Thomas), also an African-American woman, moved into a one-bedroom unit next door to Petitioner in the spring of 2002. Thomas' son, then aged four, resided with his mother. A situation developed between Petitioner and Thomas. Petitioner testified in her case-in-chief that she was "calling the police on a constant regular basis." Petitioner also sought help from Charter's on-site manager, Ada Pumerol (Pumerol). Specifically, Petitioner asked that she be transferred to an apartment further away from Thomas. Thomas also desired to obtain a different and larger apartment within the community. Thomas had accepted a one- bedroom apartment in order to move into the community, but only because a two bedroom--which would afford separate bedrooms to her and her young son-- was not available. In the fall of 2002, Thomas sought to effect a transfer to a larger apartment and requested same by submitting a unit transfer form to Charter. At all times material to this case, Charter is bound by its contract(s) with HUD to obey the HUD Multifamily Occupancy Handbook (the Handbook). The Handbook provides for unit transfers based upon: (1) a verifiable change in family size or composition; (2) additional policies developed by [Charter] to address transfer requests beyond family composition, for reasons including transfers based upon medical reasons or to accommodate a disability; and (3) a reasonable accommodation for a household member’s disability. Such requests, if determined to be within the foregoing guidelines, are granted. If a transfer is approved pursuant to Handbook guidelines, the resident will be placed on a waiting list if a suitable apartment is not then available. The unit transfer form is prescribed by HUD in its Handbook, and is a prerequisite to consideration by Charter of any transfer request. As previously noted, Thomas filled out the required unit transfer form. She cited, as a basis for her request, an increased need for an extra bedroom based upon her family size and composition -- a growing child who was more appropriately housed in his own room. The transfer was approved, but a two- bedroom apartment did not become available until November 2004, at which time Thomas and her son moved. Requests for transfer are considered on a first-come, first-accommodated basis. Thomas' request for transfer would not have been considered by Charter had she not complied with HUD's requirement that a unit transfer form be completed. Petitioner complained to Pumerol about Thomas, and verbally requested a transfer for the purpose of getting away from Thomas. Petitioner claimed that Thomas engaged in threatening and inappropriate behavior towards her. There is no persuasive evidence that this is true. Thomas testified persuasively that she and Petitioner did not make for congenial neighbors, but Thomas did not threaten or otherwise engage in inappropriate behavior towards Petitioner. Moreover, the evidence established that Charter, which is bound by the Handbook, may not predicate a unit transfer decision upon complaints regarding the behavior of a resident's neighbor. Petitioner admits she was familiar with the requirement that a unit transfer form be completed as a prerequisite to Charter's consideration of a request for transfer, and that she failed to fulfill this prerequisite. Although Ms. Dennard complained about Ms. Thomas, and Ms. Thomas complained about Ms. Dennard, there was no basis for Charter to separate the women. Dennard's complaint of discrimination is also predicated upon a claim that Charter responded promptly and positively to resolve a dispute between two Hispanic female residents by providing one of the Hispanic residents with a unit transfer in order to separate them. To the contrary, the greater weight of competent, persuasive evidence established that the two Hispanic women were separated for reasons having nothing to do with dispute(s) between them. It is determined instead, based upon the greater weight of competent, persuasive evidence, that one of the Hispanic women filed a unit transfer request based upon a change in her family size and composition and for medical reasons. To be precise, other grandchildren were moving in with her; one of the granddaughters was mentally disabled and required her own room. The grandmother therefore submitted a unit transfer request which cited the increased size of the family and medical necessity. Upon consideration and verification of the basis for the request, a transfer to a three-bedroom apartment was approved by Charter. The second Hispanic woman was evicted for egregious violations of requirements set forth in Charter's lease agreement with her concerning maintenance of the apartment. More specifically, the apartment was filthy and attracted the attention of the health department; in addition, the woman had made threats to office workers at the community. Although the Hispanic women ended up "separated" in a literal sense, the separation was based upon legally appropriate reasons having nothing to do with any dispute they may have had while neighbors; there was no competent evidence that the Hispanic women were separated and the African-American women were not on account of discrimination by Charter against African-American women. All of the persuasive evidence demonstrated that the Hispanic women were "separated" due to the appropriate application of the HUD regulations to which Charter was contractually bound. In sum, there was no persuasive evidence that either Hispanic woman sought a transfer on account of poor relations with the other. There is no competent, persuasive evidence that a request based upon such grounds would have been granted.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter its Final Order dismissing Dennard's Petition for Relief. DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 26th day of April, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wana Dennard 18665 Northwest 37th Avenue Apartment 103 Opa Locka, Florida 33056 Rachel M. LaMontagne, Esquire Wilson, Elser, Moskowitz Edelman and Dicker LLP 3800 Bank of America Tower 100 Southeast Second Street Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Petitioner, Francesca Thomas, was subject to an unlawful employment practice by Respondent, SMA Behavioral Health, Inc., based on her alleged handicap/disability in violation of the Florida Civil Rights Act, section 760.01, Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a Family Intensive Therapeutic Team (FITT) counselor for Respondent. She provides substance abuse and mental health counseling with the goal of reuniting her clients with their children. Petitioner has worked for Respondent for 15 years, and was described by one of her supervisors as “professional.” During the course of her employment with Respondent, Petitioner has received multiple promotions, presumably indicative of the quality of her work for Respondent. FITT counselors are responsible for providing counseling services to 10 to 12 clients that are referred by child welfare. The program is designed for FITT counselors to see their clients at the clients’ homes or out in the community. Respondent provides a laptop and cell phone for each FITT counselor for use in the field. FITT counselors rely upon electronic medical records and use their laptops to communicate with clients and manage their caseloads. Occasionally there are some hard copy documents used by the FITT counselors, but Respondent has policies and procedures in place to manage the security of these documents. Hard copy documents are required to be secured in locked bags or in the trunks of the FITT counselor’s cars. All of the progress notes that FITT counselors prepare are paperless. Additionally, the discharge notes, communications, and child welfare records are paperless. Over the course of a case, the majority of the documents are paperless. FITT counselors only have to come into the office if they have meetings with their supervisor or have documents in hard copy format. If they so choose, they can work on their case notes and communicate with clients from the office. They can also connect to the internet, work on their case notes, and communicate with clients remotely. In all, 70 to 80 percent of Petitioner’s work is performed outside of the office. Some of the FITT counselors perform the majority of their work at home. This is accomplished via their company issued laptop and WiFi delivered through their phone. Respondent has a Virtual Private Network (VPN) system that allows FITT counselors to work remotely and securely from their homes. Petitioner’s position was designed so she would not be tethered to a desk. As noted, she has the ability to connect to WiFi through a WiFi hotspot that is available on the phones issued by Respondent, which essentially allows her to work from anywhere. Prior to February 2018, the FITT counselor’s offices were located in the Cantley Center, in Daytona Beach, Florida. The work stations provided to the counselors at this location were very small offices (approximately 8 ft. by 8 ft.) with doors, as opposed to work cubicles. Some FITT counselors shared offices with other counselors, while some counselors, including Petitioner, had their own offices. The workspace was described by one counselor as a “cave” since it was located in the lower level of the building, there were no windows, and the small offices had low ceilings. For reasons not reflected in this record, sometime in early 2018 the decision was made to relocate Respondent’s operations to a new location. On or around February 27, 2018, Petitioner went to Respondent’s new offices to examine where she would be working. Petitioner’s department was one of the first to move into the new building. At the new location, the FITT counselors were to be assigned to cubicles, rather than offices. Although Petitioner’s previous office was very small, when Petitioner saw her new work space she shouted loudly “I can’t do this. I can’t do this,” and began suffering a panic attack. When Petitioner then requested that she be assigned to a different cubicle, based upon her seniority, her supervisor informed her that all the work spaces were already assigned by the Program Management and Facilities departments. In November 2017, Petitioner informed Respondent that she occasionally suffers from panic attacks. However, it was not until March 1, 2018, that Petitioner told her supervisors that she was claustrophobic. Her supervisors told her that they were unaware of her being claustrophobic and did not recall her ever saying that she was claustrophobic. Petitioner received a Performance Notice due to her exchange with her supervisors on February 27, 2018. As a consequence of this Performance Notice, Petitioner was placed on 90 days probation. On March 14, 2018, Petitioner asked to schedule a meeting with her supervisor to discuss her Performance Notice. She did not ask about a reasonable accommodation in her March 14th email to her supervisor, BranShonda Levine. On March 19, 2018, Petitioner again exchanged emails with Ms. Levine regarding a meeting to discuss her Performance Notice. On that same date, Petitioner also exchanged emails with Jennifer Stephenson, senior director of Outpatient Services, that were related to her Performance Notice. Ms. Stephenson understood Petitioner’s email to only be focused on appealing the issuance of the Performance Notice that Petitioner received. In the e-mail exchange, Petitioner indicated she wanted to meet with Ms. Stephenson and Deborah Loyd, Respondent’s vice president of Human Resources, to discuss her Performance Notice. Ms. Stephenson scheduled a meeting with Ms. Loyd in response to Petitioner’s March 19th email regarding her Performance Notice. Petitioner submitted a rebuttal to her Performance Notice on March 20, 2018, stating that she did not feel that the issuance of the Performance Notice was warranted. At a meeting on March 20 or 21, 2018, Petitioner expressed for the first time that she may need a reasonable accommodation. At this meeting, Ms. Stephenson learned for the first time that Petitioner claimed she has claustrophobia. Likewise, Ms. Stephenson did not know Petitioner was seeking a reasonable accommodation until this meeting. In a follow-up email dated March 21, 2018, Ms. Stephenson recommended Petitioner work with Respondent’s Human Resources Department regarding her claustrophobia and panic attacks. Ms. Stephenson acknowledged that if they were documented conditions, Respondent would make a reasonable accommodation for Petitioner. As of March 30, 2018, Petitioner remained focused on the two disciplinary actions1/ she had received in early 2018, and her request to have those reviewed and removed from her personnel file. As of this date, Petitioner was working in her assigned cubicle, and made no mention of having any issue working in the cubicle. Respondent has adopted Policy HR102, titled “Accommodation of Individuals with Disabilities or with Communications Barriers.” Consistent with this policy, if an employee needs an accommodation, they must participate in the interactive process with Respondent, including filling out and submitting the American with Disabilities Act (ADA) Accommodation Questionnaire. The employee and their physician are required to document the disability and accommodation request. Respondent then reviews the completed interactive process paperwork and schedules a meeting to discuss the same with the employee. This is to determine the accommodation that is being requested and if Respondent is able to provide the requested accommodation, or whether other alternatives could be provided. Petitioner submitted her reasonable accommodation paperwork to Respondent on April 25, 2018. Petitioner’s reasonable accommodation paperwork stated that she did not have an impairment that substantially limited a major life activity as compared to most people in the general population. However, Petitioner did state that her impairment “limits patient breathing, talking, thinking.” During the interactive process, Petitioner requested a more open space to avoid panic attacks that might occur due to claustrophobia. On May 14, 2018, Petitioner submitted a letter solely focused on the Performance Notice relating to her exchange with her supervisors on February 27, 2018. No mention was made of Petitioner being unable to work successfully in her assigned cubicle. Respondent attempted to schedule a meeting with Petitioner on May 30, 2018, to discuss her request for a reasonable accommodation. However, on May 31, 2018, Petitioner rescheduled the meeting because she injured her eye. On June 1, 2018, Petitioner rescheduled the meeting again, this time to take place on June 4, 2018. The purpose of the meeting would be to discuss Petitioner’s interactive process paperwork. Prior to the June 4, 2018 meeting, Ms. Loyd met with Ms. Stephenson to review what options would be available to meet Petitioner’s request for an accommodation. The June 4, 2018 meeting was held as scheduled and was attended by Petitioner, Ms. Stephenson, and Ms. Loyd. At the meeting, Ms. Loyd and Ms. Stephenson discussed the accommodation request with Petitioner and advised her of what accommodations Respondent would be able to offer her. Specifically, they informed Petitioner she could work from home or use the conference room in her immediate work area. As to Petitioner’s desire to be reassigned to a different cubicle or an office, Ms. Stephenson and Ms. Loyd explained that the other cubicles were already previously assigned, and that other departments were utilizing the offices in the building. Moreover, the physical offices in the building were not a part of Petitioner’s department. In an e-mail Petitioner sent to Ms. Loyd following their meeting, Petitioner inquired as to whether the wall on the right side, and the front wall of her assigned cubicle, could be taken down. This option was explored by Respondent and it was determined that the walls at issue could not be moved or reconfigured. Petitioner insisted that she should be permitted to use offices in the building instead of being permitted to work from home or in a conference room. Accordingly, Petitioner did not accept either of the accommodations offered by Respondent and ceased engaging in the interactive process with Respondent. Petitioner would not have been subject to increased duties if she chose to work from home. Respondent also examined whether the cubicle walls could be removed. However, it was not feasible to reconfigure or move the cubicle walls. After the meeting, Petitioner emailed Ms. Loyd but did not state that she believed the conference room accommodation, or working from home, would be inappropriate. At hearing, Ms. Stephenson could not recall Petitioner ever speaking with her again about additional accommodation requests. Respondent reasonably determined that the nearby conference room would be an open space for Petitioner to work, thereby reducing the likelihood that Petitioner would suffer from claustrophobia. Petitioner agreed the conference room Respondent offered to her is an open space. As noted previously, it is a common practice for counselors who work in the field to work from home, as well as from other locations. The FITT counselor’s hard copy files are in filing cabinets that are in a separate area away from the cubicles. Therefore, Petitioner would not need to store her files in the conference room. Petitioner worked in the original cubicle she was assigned for seven months. In November 2018, an employee who worked out of a different cubicle left the company and Respondent offered Petitioner a new cubicle. Petitioner accepted the same, and as of the date of the hearing Petitioner continues to be employed by Respondent.2/
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 Petitioner, Francesca Thomas, did not prove that Respondent, SMA Behavioral Health, Inc., committed an unlawful employment practice against her and dismiss her Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 18th day of December, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 December, 2019.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to make an appearance at hearing.
Findings Of Fact On January 7, 2011, the undersigned issued the Initial Order in this case. Petitioner and Respondent responded to the Initial Order. On February 10, 2011, the undersigned issued a Notice of Hearing, scheduling the hearing for March 28, 2011. The Notice of Hearing was not returned as undeliverable to Petitioner. Indeed, Petitioner wrote and filed several letters regarding her upcoming hearing and case in general. On March 18, 2011, the hearing was convened as scheduled. After waiting 15 minutes, Petitioner did not appear at the hearing and did not contact the undersigned’s office regarding any problem with commencing the hearing as scheduled. Accordingly, no evidence to support Petitioner’s allegations was introduced at the hearing. Given this lack of evidence, the Petition for Relief should be dismissed.
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 Petition for Relief. DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGR 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 15th day of April, 2011. COPIES FURNISHED: Gayle Wilburn 1006 East Johnson Avenue, #4 Pensacola, Florida 32514 Robert E. Larkin, Esquire Allen Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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 The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 February, 2003.
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, the Petition for Relief should be dismissed.
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 Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
