The Issue The issue is whether Respondent, Publix Super Markets, Inc. (“Publix”), violated section 760.08, Florida Statutes (2014),1/ by discriminating against Petitioner based on his race, color, sex, and/or handicap.
Findings Of Fact Petitioner is a black male who lives in Deltona, Florida. Despite the assertion in his Public Accommodation Complaint of Discrimination, Petitioner offered no evidence that he has a disability or handicap. Petitioner testified that he had surgery for kidney stones in Daytona Beach on October 20, 2014. Respondent’s urologist prescribed Percocet (oxycodone and acetaminophen), a controlled substance, to control Respondent’s pain. The prescription from Petitioner’s urologist was not placed in evidence. On October 21, 2014, Petitioner went to the emergency room at Fish Memorial Hospital in Orange City and, there, was given a prescription for 12 tablets of Percocet. The prescription directed that the medication be taken once every six hours, meaning that the emergency room physician was prescribing a three-day supply of Percocet. A copy of this prescription was entered into evidence, and the parties agree that this is the prescription that Petitioner later presented to the Publix pharmacy. Petitioner testified that his mother drove him to his surgery and, apparently, to the emergency room. She placed the prescription in her purse for safe keeping. A few days later, when Petitioner wanted to get the prescription filled, his mother could not find the prescription. Petitioner stated that his mother forgot that she had changed purses. When she changed purses again a couple of weeks later, Petitioner’s mother found the prescription. On November 15, 2014, Petitioner presented the emergency room prescription to the pharmacy technician at Publix Store 0667 in Deltona. The technician was aware that the pharmacist gave special scrutiny to emergency room prescriptions. The technician therefore took the prescription directly to the pharmacist, James MacDonald. Mr. MacDonald was the pharmacy manager of Store 0667 and at the time of the events at issue had been a pharmacist for 23 years with no record of discipline against his license. Mr. MacDonald testified that, as a general matter, he performs a prospective drug utilization review on every prescription. Simply put, this process insures that the prescription is for a legitimate medical purpose and that it is being filled for the person who presented it at the pharmacy. Mr. MacDonald stated that he is not required to fill every prescription that is presented to him and that he declines to fill prescriptions seven to ten times per week. The chief reasons for declining to fill prescriptions are the pharmacist’s inability to verify the prescription with the prescribing physician and the pharmacist’s determination that the prescription calls for a type or quantity of a controlled substance that is inappropriate to the patient’s condition. Mr. MacDonald testified that during the two years prior to November 2014, nearby pharmacies at CVS and Walgreens had stopped filling prescriptions for controlled substances, which placed an added burden on Publix to fill these prescriptions. There were several doctors in the area writing prescriptions for large amounts of controlled substances. Mr. MacDonald was also being presented with many prescriptions for controlled substances from people he did not know. All these factors contributed to his caution in filling prescriptions for controlled substances. Mr. MacDonald testified that a prescription from an emergency room visit usually provides for enough medication to get the patient through the emergency period, two or three days, after which the patient is instructed to see his primary care physician. Mr. MacDonald tended to decline to fill emergency room prescriptions that were presented more than a few days after the emergency room visit. When the technician presented him with Petitioner’s prescription, Mr. MacDonald told the technician that he would not fill it because it was more than three weeks old. The technician walked to the front window to convey this response to Petitioner, who did not take it well. Mr. MacDonald could hear Petitioner raising his voice and so went to the front to speak with Petitioner directly. Mr. MacDonald testified that the pharmacy was very busy, that he had customers ahead of Petitioner, and that having to come around and deal personally with Petitioner was putting him even farther behind in his work. Mr. MacDonald explained to Petitioner that the prescription was issued by an emergency room physician and was for a three-day supply of Percocet. He told Petitioner that he would have filled the prescription if he had presented it within a week of his emergency room visit, but that it was now three weeks later and this was clearly no longer an emergency situation. Petitioner testified that he told Mr. MacDonald that the prescription had been misplaced in his mother’s purse. Mr. MacDonald did not recall this explanation. Mr. MacDonald offered to call the emergency room physician and verify the prescription. Petitioner insisted that Mr. MacDonald either call the physician or fill the prescription immediately, and stated that he would not move from the pharmacy window until Mr. MacDonald had complied with his ultimatum. Mr. MacDonald stated that he had customers ahead of Petitioner and could not drop everything to please him at that moment. In light of Petitioner’s persistence, Mr. MacDonald reiterated his refusal to fill the prescription. He handed the prescription back to Petitioner and threatened to call the police if Petitioner did not leave. Petitioner was unmoved. Mr. MacDonald did not call the police but did page the assistant store manager, Christopher Bloyen, to intercede in the situation. Mr. Bloyen testified that he came to the pharmacy. He saw that Petitioner seemed very upset and was speaking very loudly. Petitioner complained that Mr. MacDonald would not fill his prescription. Mr. Bloyen spoke briefly with Mr. MacDonald, who explained why he was refusing to fill the prescription. At the hearing, Mr. Bloyen explained that the pharmacy in any Publix store is an autonomous department and that, as a store manager, he lacks the training or expertise to second- guess the decision of his pharmacist. Publix relies on the professional expertise and discretion of its pharmacists to determine whether or not to fill a prescription. Mr. Bloyen informed Petitioner that he was going to support the decision of Mr. MacDonald not to fill the prescription. At this point, Petitioner left the store. Neither Mr. MacDonald nor Mr. Bloyen had met Petitioner before this incident. Petitioner did not disclose to them that he had any disability or handicap, and none was visibly apparent. Mr. MacDonald testified that his decision not to fill Petitioner’s prescription was not based on Petitioner’s race, color, or sex. In fact, Mr. MacDonald’s initial decision not to fill the prescription was made and announced to the technician before Mr. MacDonald laid eyes on Petitioner. Petitioner’s race, color, sex, and alleged handicap or disability played no part in Mr. MacDonald’s decision not to fill the prescription. Mr. MacDonald did not make any disparaging remarks about Petitioner during their exchange, and no employee of Publix made racially derogatory or racially related comments to Petitioner. Petitioner testified that he was able to get the prescription filled at a Winn-Dixie pharmacy shortly after this incident. Therefore, Petitioner suffered no economic loss or quantifiable damages as a result of Publix’s refusal to fill his prescription. Petitioner testified that he seeks only an apology from Publix. Publix Store 0667 does not contain a restaurant or lunch counter and there is no designated area for customers to consume food on the premises. The store does contain a deli, but the food items sold from the deli are not intended for on- site consumption at Publix. The store has no picnic tables or other seating at which customers might consume food on the premises. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Publix for refusing to fill his prescription. Petitioner offered no credible evidence that the stated reasons for not filling the prescription were a pretext for discrimination based on Petitioner’s race, color, sex, handicap, or disability. Petitioner offered no credible evidence that Publix discriminated against him in violation of section 760.08.
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 Publix Super Markets, Inc., is not a public accommodation under the facts of this case or, in the alternative, that Publix Super Markets, Inc., did not commit any unlawful acts of public accommodation discrimination and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2016.
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
The Issue Whether Petitioner, Ann Marie Augustino, was denied copying services by Respondent, Kwikie Printing, because of her religion in violation of Pinellas County Code Section 70-214, when Kwikie Printing refused to print the GreenSong Grove, Inc.'s, newsletter, "Voices of the Grove."
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Ann Marie Augustino, is a self-proclaimed witch who follows the Wicca religion. Petitioner is a member of a religious organization, GreenSong Grove, Inc., a Florida not-for-profit corporation. Respondent, Kwikie Printing, operates a printing business in Pinellas Park, Florida. It operates a business which provides goods and services to the public. Among GreenSong Grove, Inc.'s, purposes, as stated in its Articles of Incorporation, are the following: to provide a place of worship to celebrate, support and teach the penance of the Pagan religion; to provide and disseminate information regarding Paganism and the Pagan faith to the general public, other religions and secular bodies in order to educate and inform. In furtherance of its stated corporate purpose, GreenSong Grove, Inc., regularly publishes a newsletter, "Voices of the Grove." For several years prior to the incident which gave rise to the complaint of discrimination, Respondent printed materials for Petitioner and GreenSong Grove, Inc. In addition to the "Voices of the Grove" newsletter, Respondent had printed business cards, hats, and T-shirts; all contained the GreenSong Grove, Inc., logo. In October 2001, Respondent's employees, including Patricia Hall, Respondent's manager, and her husband, Robert Hall, a part-time employee, had occasion to read portions of the "Voices of the Grove" newsletter and were offended by its content. On this occasion, the printing job, which was in progress when its content was discovered by Respondent, was completed as contracted, and the newsletter was delivered to a representative of GreenSong Grove, Inc. Petitioner did not pick up the October newsletter; however, the individual who picked up the newsletter was advised that the newsletter would no longer be printed by Respondent because of its content. In December 2001, Petitioner returned to Respondent's printing establishment seeking to have the newsletter printed; Respondent through the Halls advised Petitioner that Respondent would not print the newsletter because they found the contents offensive to their religious views. This was essentially confirmed by a witness who had accompanied Petitioner when she returned to Respondent's facility the following day and was again refused. Respondent, through the Halls, advised Petitioner that Respondent would print other non-offensive materials as it had done in the past. The testimony of Petitioner and the Halls is consistent regarding the stated purpose for Respondent's refusal to print the newsletter. In Petitioner's original Charge of Discrimination filed with the City of St. Petersburg, she states: "When I asked for an explanation, Rob Hall came out and stated that the letter was about Witchcraft and Paganism and he would not support those religious views since he was a born again Christian." Petitioner's testimony at the hearing and that of the Halls confirmed that the reason that the newsletter was not printed was due to its content. She further testified that she believed that the Halls' religious-based motivation for not printing her newsletter was a sincere exercise of their religious beliefs. Petitioner confirms that Respondent, through the Halls, offered to continue to perform other printing services for her. In addition, they offered to allow her to use a copier in their place of business on which she could print the newsletter. Petitioner offered no evidence, nor did she testify, that Respondent discriminated against her, personally, as opposed to their objection to the content of the material she sought to have printed on behalf of GreenSong Grove, Inc. Robert Hall testified that he believes the Bible speaks against witchcraft and produced an extensive list of Bible verses that support his contention. He further believes that the advocacy of witchcraft is against God and that printing the subject newsletter would be blasphemy. Patricia Hall testified that her religious beliefs are consistent with Robert Hall's and, in her capacity as Respondent's general manager, confirmed the decision not to print the newsletter. Respondent has, in the past, refused to provide printing services for individuals who presented materials that Respondent found offensive. Respondent would not provide services to any individual, regardless of the individual's religious preference, if the material submitted was found to be offensive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the public accommodations discrimination complaint against Kwikie Printing be dismissed. DONE AND ENTERED this 18th day of August, 2004, 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 18th day of August, 2004. COPIES FURNISHED: Ann Marie Augustino 7139 62nd Street, North Pinellas Park, Florida 33780 W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756 Barbara J. Weller, Esquire Gibbs Law Firm, P.A. 5666 Seminole Boulevard, Suite 2 Seminole, Florida 33772 Drew A. Gardner, Esquire 8313 West Hillsborough Avenue, Suite 150 Tampa, Florida 33615 Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, Fifth Floor Clearwater, Florida 33756
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 committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2008.
The Issue 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 Whether Petitioner has been subjected to unlawful discrimination in a public accommodation by Respondent, as alleged in the Amended Public Accommodation Charge of Discrimination filed by Petitioner on July 30, 2003.
Findings Of Fact Petitioner, Rungvichit Yongmahapakorn, was hired by Respondent as an internal auditor in December 1998, then was promoted to vice president of accounting and finance in April 1999. While she worked for Respondent, Petitioner was provided room and board at the hotel. Her employment was terminated by Respondent on May 30, 2003. The circumstances of her termination are not at issue in this proceeding. Respondent, Amtel Group of Florida, Inc., d/b/a Ramada at Amtel Marina, owns and operates a 24-story full service hotel in downtown Fort Myers, Florida, overlooking the Caloosahatchee River. The hotel offers over 400 rooms and suites to guests. Petitioner testified that in May 2003, she visited her native Thailand. She returned to Fort Myers on June 3, 2003, and proceeded to Respondent's hotel, where she learned of her termination. Petitioner testified that the notice of her termination was posted on the door of Room 411, a room dedicated to staff of the hotel in which she had lived for several months. The notice also informed her that she must vacate the hotel's premises immediately. Having nowhere else to go and wishing to have some time to assess her options, Petitioner requested that she be allowed to stay as a paying guest of the hotel. She also complained of mildew in Room 411 and asked for a different room. Hotel staff showed her Room 1621, a non-smoking king guest suite facing the water. The standard rate for this suite was $129.00 per night. During the month of June, the rate actually charged for this room ranged from $89.00 to $119.00, depending on demand. Petitioner rejected Room 1621 claiming that the furniture was dirty and scratched, and the carpet needed cleaning. Ginger Eodice, director of Housekeeping for the hotel, personally cleaned the room. Petitioner did not approve of Ms. Eodice's work. Hotel staff then showed Petitioner Room 1613, another non-smoking king guest suite facing the water. Petitioner claimed that the window screens in this room were dirty and demanded that hotel staff show her another room. Petitioner was told that she could have her choice of Rooms 411, 1621, and 1613. Ms. Eodice testified that all three of the rooms were up to Ramada standards of cleanliness and in good repair. Rooms 1621 and 1613 were provided without incident or complaint to hotel guests before and after Petitioner's stay in the hotel. Petitioner refused to select a room. She was upset and became increasingly loud in the hotel lobby. Hotel staff attempted to mollify her in order not to create a scene in front of other guests, but Petitioner would not calm down. Den Chinsomboon, who was then a manager at the hotel, told Petitioner that she had to choose a room or be escorted from the hotel property. Petitioner continued her tirade, and Mr. Chinsomboon ordered a front desk employee to call the Fort Myers Police Department. The police arrived and told Petitioner that she had to select a room or leave the premises. Petitioner then calmed down and chose to stay in Room 1613. Petitioner paid in advance for ten days' stay in the room totaling $646.10. Upon her checkout on June 12, 2003, Petitioner received a full refund of $646.10 from the hotel. No witness offered any first-hand explanation for the low rate charged or the reason for the full refund. Kevin Matney, the hotel manager who made these decisions, no longer works for Respondent and did not testify at the final hearing. Petitioner testified that, while she was a guest in Room 1613, the hotel's engineering staff used pass keys to enter the room without her permission. Under cross-examination, Petitioner conceded that the engineering staff came to the room at her request to change a light bulb, but she still maintained that they entered without knocking. Several staff members testified that Ramada's firm policy was for staff to knock twice on a guest's door before using the pass key to enter. Petitioner offered no evidence that hotel staff discriminated against her because she was Asian, Thai, or because she was female. The evidence established that the hotel's owners are Thai, as were several other employees at the time. She contended that Mr. Chinsomboon's actions were motivated by the "normal" Thai male's tendency to discriminate against Thai females, but offered no firm evidence to support this bare assertion. Petitioner attempted to show that two white male employees were treated differently after their employment was terminated. At most, Petitioner was able to show that one of these terminated employees was later allowed to hire out the hotel's banquet facilities for a wedding reception. This can hardly be termed disparate treatment, given that Petitioner was allowed to stay at the hotel without charge for ten days after she was terminated. Petitioner alleged discriminatory treatment in the fact that the hotel summoned the police to evict her because she complained about the condition of the rooms she was offered. The weight of the evidence established that Respondent's employees called the police because Petitioner was causing a disturbance and was refusing to select a room. Once Petitioner selected a room, she stayed at the hotel for nine nights without further incident and was not charged for her stay. The evidence established that Petitioner had lived at the hotel since 1998 without complaining about the cleanliness or general repair of her rooms. The evidence established that Petitioner was irate over her termination and that her anger caused her to make unreasonable demands regarding the conditions of the rooms. Hotel staff attempted to satisfy Petitioner's demands, if only to prevent a loud confrontation in the hotel's lobby. There was no credible evidence that any employee of the hotel behaved in a manner that could be termed discriminatory against Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2005.
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.
