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 The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
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 filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, 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 11th day of May, 2017.
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, 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 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
The Issue Whether Respondent discriminated against Petitioner in employment in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact At all times relevant hereto, Petitioner was employed by Respondent as a patient transporter. On December 27, 2018, Petitioner sustained a back injury while on the job. Petitioner reported the injury to Lora Vitali, Director of Colleague Health, Respondent’s employee healthcare department. Ms. Vitali instructed Petitioner to take the rest of the day off work and treat the injury with ice and ibuprofen. On December 28, 2018, Petitioner returned to Colleague Health and reported that she was still in pain. Colleague Health nurse, Monica Hubmann, arranged massage therapy and pain medication for Petitioner and instructed her to report back to Colleague Health on Monday, December 31, 2018, for further evaluation. Petitioner presented to Colleague Health on December 31, 2018, and reported that she was still in pain. Nurse Hubmann referred Petitioner to Dr. Spencer Stoetzel, who evaluates and treats Respondent’s employees who are injured on the job. Dr. Stoetzel is employed by North Florida Sports Medicine & Orthopaedic Center, not Respondent. At Dr. Stoetzel’s direction, Petitioner received regular treatment, including both physical and occupational therapy, until March 25, 2019. Petitioner was on workers’ compensation leave from work during her treatment. On March 25, 2019, Dr. Stoetzel cleared Petitioner to return to work with no restrictions and a 0% impairment rating. Based on Dr. Stoetzel’s conclusion, Ms. Vitali released Petitioner to return to work effective March 26, 2019. Ms. Vitali informed Petitioner of her release to work on March 25, 2019. Petitioner’s supervisor placed Petitioner on the work schedule after she was released to return to work, but Petitioner did not return to work as scheduled, and did not return any one of several telephone calls from her supervisor. Therefore, Respondent discharged Petitioner for job abandonment. Petitioner disputes her dismissal for job abandonment because she maintains that she was unable to work due to continuing pain. Petitioner disputes Dr. Stoetzel’s conclusion that she could return to work beginning March 26, 2019. Petitioner testified that Dr. Stoetzel told her that, based on the results of magnetic resonance imaging (“MRI”), she had a lumbar tear in the L4-L5 region, yet the discharge summary excluded the results of the MRI. The discharge summary refers only to a “[l]umbar sprain or strain with discrepant pain as well as radicular symptoms [pain radiating down the leg].” In the discharge summary, Dr. Stoetzel concludes, “There is really nothing further I have to offer.” Petitioner testified that her pain is continuous, has increased in severity, and prevents her from wearing shoes, driving, doing household chores, and caring for her children. Ms. Pride testified that her daughter is in constant pain and that Ms. Pride has assumed care of her grandchildren during the day when Petitioner’s husband is at work. Petitioner maintains that she has been unable to work due to her injury from December 27, 2018, through the date of the final hearing. Petitioner did not introduce any evidence of discrimination on the basis of her race, sex, or in retaliation for engaging in a protected activity. With regard to age discrimination, Petitioner testified that Dr. Stoetzel once commented that her back pain was due to her age. Petitioner’s PRO includes no references to discrimination based on her age, sex, race, or in retaliation for engaging in a protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Tallahassee Memorial HealthCare, Inc., did not discriminate or retaliate against Petitioner, and dismissing Petitioner’s Petition for Relief in Case No. 2019-18837. DONE AND ENTERED this 9th day of September, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk 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 9th day of September, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Elaine Williams 411 Earline Hobbs Road Quincy, Florida 32351 Gerald D. Bryant, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 2nd Floor 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Stephanie Clark, Esquire Pennington, P.A. Suite 200 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of February, 2008.
The Issue The issue is whether Respondent, Townsend Seafood, violated section 760.08, Florida Statutes (2018),1/ by discriminating against Petitioner based on her race and/or her sex.
Findings Of Fact Petitioner is a black woman who lives in Jacksonville, Florida. Petitioner testified that she frequently waits at a bus stop adjacent to a strip mall on Townsend Boulevard in Jacksonville, across the street from a Publix Supermarket. In 2017, Townsend Seafood occupied the end of the strip mall nearest the bus stop. Townsend Seafood was a seafood market and restaurant. Petitioner testified that Ahmed Al Janaby, the apparent proprietor of Townsend Seafood,3/ repeatedly accosted her on the public walkway near the bus stop. In early May 2017, Mr. Al Janaby demanded that Petitioner remove a Publix grocery cart from the bus stop. Petitioner responded that she needed the cart because she has a chronic back disease and was unable to carry the several bags of groceries she had in the cart. Furthermore, the cart was on public property, not Mr. Al Janaby’s premises, and Petitioner knew that a Publix employee would retrieve the cart after she got on the bus. On Memorial Day, 2017, Petitioner stopped by Publix on her way home from festivities downtown. As she stood on the public walkway near the bus stop, Mr. Al Janaby came out of his premises and demanded that Petitioner move. When Petitioner declined, Mr. Al Janaby began insulting her choice of clothing, stating that she looked like a “whore.” Petitioner responded by calling Mr. Al Janaby’s mother a whore. At that point, Mr. Al Janaby spat at Petitioner. On July 4, 2017, Mr. Al Janaby again confronted Petitioner on the public walkway near the bus stop, demanding that she move. On this occasion, Mr. Al Janaby used what Petitioner called “the N-word.” When she threatened to call the police, he retreated to his business, but not before again spitting in her direction. On August 21, 2017, Mr. Al Janaby assaulted Petitioner with a broom, which resulted in Petitioner’s toe being broken. This incident also occurred on the public walkway near the bus stop. Petitioner testified that she had no choice but to use the bus stop near Mr. Al Janaby’s business. The bus stop itself was not covered, and the public walkway at the strip mall was the only place to seek refuge from the sun on hot days. Petitioner did most of her shopping in that area, and frequented one business in the same strip mall as Townsend Seafood. She did not shop or eat at Townsend Seafood. Judy Slonka, a white friend of Petitioner’s, testified that she once stood on the public walkway while waiting for the bus on a day when the heat index was over 100 degrees. Mr. Al Janaby emerged from Townsend Seafood and hit her with a broom, saying that she was obstructing the entrance to his business. Petitioner testified that since the events described by her and Ms. Slonka, Townsend Seafood has relocated from the end of the strip mall to an interior storefront. Neither woman has had a problem with Mr. Al Janaby since he moved his business away from the bus stop. Petitioner’s testimony was credible as to the facts of the events she described. Ms. Slonka’s testimony was likewise credible. As the undersigned explained to Petitioner at the conclusion of the hearing, the problem is that the events they described do not meet the statutory definition of discrimination in a “place of public accommodation,” because they occurred on the public walkway outside of Townsend Seafood. Mr. Al Janaby certainly had no right to accost these women on a public walkway, but this was a matter for local law enforcement, not the FCHR.
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 Townsend Seafood did not commit an act of public accommodation discrimination against Petitioner, Shirley P. Williams, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2018.
The Issue Whether Petitioner, Barbara Robinson, was subject to an unlawful employment practice by Respondent, Attractions Lodging Leisure, Inc., d/b/a All Guest Services, in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner requested this evidentiary hearing to prove her allegation that All Guest discriminated against her based on her age, national origin, and race. At the final hearing, Petitioner described herself as “a black Jamaican female over the age of forty.”4/ All Guest operates a tourism business in Orlando, Florida. Its business consists of placing sales representatives, or “concierges,” in hotel lobbies throughout the Orlando area. These concierges assist hotel guests by promoting and selling theme park tickets, answering questions about local attractions, and generally helping the guests feel happy about their stay. All Guest currently employs over 150 concierges in 75 hotels across Orlando. All Guest hired Petitioner as a concierge in October 2012. All Guest assigned Petitioner to work in a specific hotel. Petitioner was 48 years old at the time All Guest hired her. Petitioner worked for All Guest from October 2012 until May 2018. By all accounts, Petitioner was a dependable worker with no noted deficiencies in her job performance. Testimony at the final hearing established that Petitioner was qualified to perform her duties as a concierge, and All Guest was pleased with her work. Petitioner remained in the position of concierge during her five years with All Guest. Beginning as early as 2013, however, Petitioner became increasingly disenchanted by what she perceived to be All Guest’s preferential treatment of younger, white employees. At the final hearing, Petitioner recounted how she desired, but was not considered or selected for, several promotion opportunities. She complained that All Guest was promoting younger individuals who were not more qualified that herself. To support her claim that All Guest (unlawfully) failed to promote her, Petitioner described the following incidents: All Guest promoted Schuyler McVicker to a Team Lead position within six months of his hiring, instead of offering the position to Petitioner. Mr. McVicker is a white male who is younger than Petitioner. All Guest promoted Jenn Janasiewicz to a Team Lead position for which Petitioner was not considered. Ms. Janasiewicz is a white female who is younger than Petitioner. In the summer of 2017, All Guest filled a Concierge Sales Manager position. Petitioner complained that All Guest did not approach her about applying for the opening. Petitioner also identified a position that All Guest filled with Andrea Romero. Like Petitioner, Ms. Romero is over the age of forty. However, she is approximately six years younger than Petitioner. Petitioner asserted that she gave All Guest a lot to be happy about. Ticket sales consistently increased through her efforts. All Guest, however, never approached her about a promotion. Petitioner felt ignored, overlooked, and under- appreciated by All Guest’s failure to acknowledge her strong work ethic, as well as her contributions to its business. Petitioner declared that she deserved advancement based on her performance. Further, Petitioner never received a raise during her time with All Guest. Petitioner claimed that those individuals who All Guest promoted received higher wages than she did. (At the final hearing, no proof was offered establishing the actual amount of the other employees’ pay.) As Petitioner became increasingly demoralized by her stagnant job status and low pay, in the latter part of 2016, she began looking for other employment. Ultimately, on May 28, 2018, Petitioner resigned from All Guest to accept a job that offered better financial opportunities. Armando Vazquez, All Guest’s current General Manager, testified at the final hearing. Initially, Mr. Vazquez commented that Petitioner was a quality employee and a good concierge. Mr. Vazquez remarked that Petitioner did a great job working with her customers. Mr. Vazquez explained that Petitioner’s position as concierge afforded her three avenues for “promotion.” First, Petitioner could transfer to a larger hotel with more guests to whom she could market and sell park tickets (thus receiving larger commission payments). Second, Petitioner could be promoted to a Team Lead position. Third, Petitioner could advance into a management position. Mr. Vazquez explained that in All Guest’s business structure, a Team Lead essentially handles day-to-day operations. A manager, on the other hand, is involved in issues of greater complexity, including business strategy and planning. All Guest employs more Team Leads than managers. Therefore, Team Lead positions become available more frequently than managerial positions. Despite the fact that All Guest was pleased with Petitioner’s performance, Mr. Vazquez testified that All Guest did not consider Petitioner for promotion opportunities for several reasons. First, during her five years with the company, Petitioner never expressed to anyone at All Guest, including Mr. Vazquez, that she was interested in a promotion. Therefore, All Guest was not reasonably aware that Petitioner desired to advance beyond her concierge job. Mr. Vazquez elaborated that during Petitioner’s employment, All Guest did not routinely post or publish specific promotion opportunities, except on one occasion. In June 2017, Mr. Vazquez sent out an e-mail to company employees announcing an open managerial position and articulated that, “If you are interested . . . please contact me immediately.” Petitioner did not apply for the position. Neither did she communicate her interest in the opening with anyone in All Guest management. As a result, All Guest did not consider her for the managerial position.5/ Secondly, All Guest was concerned with the manner in which Petitioner interacted with her coworkers, Team Leads, and managers. Mr. Vazquez expressed that Petitioner was not a “team player.” He testified that, on occasion, Petitioner’s treatment of her coworkers was disrespectful and insubordinate. Mr. Vazquez further relayed that Petitioner did not take criticism well. At the final hearing, Mr. Vazquez described several instances when All Guest felt that Petitioner’s conduct was less than satisfactory, including: November 10, 2014: Petitioner’s e-mail exchange with management. Mr. Vazquez pointed to Petitioner’s confrontational and impertinent tone. September 27 and 28, 2016: Petitioner’s e-mail communication with Team Lead Ricardo Bazan. Petitioner’s comments prompted Mr. Bazan to write, “I find your email to be rude and disrespectful.” October 13, 2016: Petitioner’s e-mails to Mr. Vazquez and Rick Schiebel (Director of Sales) regarding Petitioner’s request for time off. Petitioner’s e-mails caused Mr. Schiebel to reply, “Why do you have to be so negative and nasty to our team, including me?” and “I expect you to treat all managers and leads with dignity and respect.” October 18, 2017: Petitioner e-mailed Mr. Vazquez demanding that her manager must have “a valid REASON to come to [her] site to discuss any work related information, it is unacceptable for him to tell me he will be sitting down in my work site space to work on his laptop.” November 19, 2017: Through e-mail, Concierge Manager Andrea Romero reported a conversation with Petitioner in which Petitioner exclaimed that Mr. Vazquez “should go to management classes because he does not know how to run this company.” Finally, Mr. Vazquez asserted that Petitioner had issues with tardiness, as well as refused to commit to working at least one evening shift a week. (At the final hearing, Petitioner conceded that she was occasionally late for work. But, she adamantly denied that she had any pattern of tardiness, or ever failed to show up at all. All Guest did not refute Petitioner’s claim that All Guest never imposed or recorded any formal discipline on Petitioner for these alleged deficiencies in her work performance.) Based on the above reasons, Mr. Vazquez maintained that All Guest was neither inclined nor motivated to extemporaneously promote Petitioner to a higher position during the time she worked with the company. Regarding Petitioner’s complaints that younger coworkers were promoted instead of her, Mr. Vazquez offered several justifications. Mr. Vazquez explained that All Guest selected Mr. McVicker for a Team Lead position because his training matched All Guest’s business needs. Specifically, Mr. McVicker knew how to process transactions from the travel website Expedia, which distinguished him from Petitioner and others. Further, Mr. McVicker was a supervisor at his prior employment which qualified him to assume a part-time manager position with All Guest. Similarly, All Guest promoted Ms. Janasiewicz because her skill set matched All Guest’s business needs in a way that Petitioner’s did not. Finally, Mr. Vazquez explained that Ms. Romero had previously worked with All Guest for a considerable length of time, then resigned. When Ms. Romero subsequently expressed interest in returning to the company, All Guest believed that she was an excellent candidate for a managerial position given her prior experience and skills. Mr. Vazquez argued that Petitioner left All Guest on her own accord (for a better job opportunity), not because All Guest forced her to resign. Mr. Vazquez relayed that, prior to Petitioner leaving All Guest, he received a telephone call from a prospective employer in the hospitality industry who requested an employment reference. Mr. Vazquez testified that he provided Petitioner a positive reference. Mr. Vazquez denied that All Guest made any promotion decisions or refused to consider Petitioner’s advancement in the company, based on her age, race, or national origin. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that All Guest discriminated against Petitioner based on her age, race, or national origin. Accordingly, Petitioner failed to meet her burden of proving that All Guest committed an unlawful employment action against her in violation of the FCRA.
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, Barbara Robinson, did not prove that Respondent, All Guest, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 4th day of March, 2019.
The Issue The issue in this case is whether Respondents committed a housing discriminatory practice in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about January 20, 2009, the Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (Commission). Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by the Petitioner there was no cause from which it could be found the Respondents had violated the Florida Fair Housing Act. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondents for the alleged violation. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings. The Division of Administrative Hearings issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. No party appeared at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 6th day of August, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 6th day of August, 2009. COPIES FURNISHED: Leaford Green Danett Green 3758 Southwest Findlay Street Port St. Lucie, Florida 34953 Paula Adams Post Office Box 1665 Fort Pierce, Florida 34950 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
