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 Best Western Plus, Oakland Park Inn (Respondent or Hotel) discriminated against Petitioner Sharon L. Garratt (Petitioner or Ms. Garratt) in a place or places of public accommodation because of her disability.
Findings Of Fact Petitioner has been wheelchair bound for over 30 years because of multiple sclerosis. On February 2, 2013, Petitioner’s husband, Mr. Mel Garratt, booked two hotel rooms at the Hotel for the night of November 16, 2013. Respondent owns and operates the Hotel. The rooms were booked through the online “Booking.com” website. The website is not affiliated with Best Western hotels. Rather, the Booking.com website is an independent booking agent for various hotel operators and hotel chains. Mr. Garratt requested that one of the rooms be wheelchair accessible. While the booking confirmation shows that one wheelchair-accessible room was requested, only standard rooms were booked by Mr. Garratt, not wheelchair-accessible rooms. Wheelchair-accessible rooms were not available at the time of the booking because Respondent had closed all five of its “handicap” rooms for renovation. At the time, the Hotel had taken initial steps to upgrade the rooms to meet applicable standards for handicap accessibility. Petitioner called the Hotel at the time of the booking and was advised by the Hotel clerk that there were no wheelchair-accessible rooms available because of renovations. According to Ms. Garratt, the clerk agreed that since the Garratt’s reservations were over nine months away, the renovations for wheelchair accessibility would probably be complete by the time of the Garratt’s anticipated November 16, 2013, arrival. There was no evidence presented, however, that Petitioner was ever guaranteed or promised that a wheelchair- accessible room would be available at the Hotel on the date of their reservations. In addition, although Petitioner alleged that Respondent advertised handicap-accessible rooms at the time the rooms were booked, Petitioner did not retain copies of those alleged ads and the evidence was otherwise insufficient to show that such advertisements were made by the Hotel. Neither Petitioner nor her husband made any attempt to contact the Hotel again regarding the availability of wheelchair-accessible rooms until their arrival on November 13, 2013. Upon their arrival, the Garratts were informed that a wheelchair-accessible room was not available. Personnel at the Hotel offered to cancel Petitioner’s reservation and made calls to surrounding hotels in an attempt to locate a wheelchair- accessible room. When no such room could be found, Petitioner decided to stay the night of November 13, 2013, in the previously reserved, standard room. That night, Petitioner fell in the standard room. By affidavit, Petitioner described her resulting injuries as “pain and bruising to [her] backside,” but offered no further evidence of complications or related medical expenses. The Hotel was built in the 1950s, prior to the enactment of the American with Disabilities Act (ADA). Evidence demonstrated that Respondent closed its rooms that had previously been designated as “handicap”-accessible rooms prior to Petitioner’s booking because they were not compliant with applicable ADA standards. In October 2011, the Hotel hired architect Troy Ammons to perform an ADA survey, who noted ADA deficiencies. Thereafter, on February 24, 2012, Mr. Ammons entered into a contract with the Hotel to prepare plans for renovating the Hotel’s five designated handicap-accessible rooms. Later, plans for renovating a sixth room were added. On January 28, 2013, the plans were submitted to the City of Fort Lauderdale, Building Department. Plan review comments were finalized by the City of Fort Lauderdale Building and Plumbing Departments on April 9, 2013, and building permits were issued for the work on April 26, 2013. On November 4, 2013, the Hotel entered into an ADA Consent Decree in the case of Access for the Disabled, Inc. and Denise Payne v. Oakland Park Inn, Case No. 13-60543 (U.S. Dist. Ct., S.D. Fla.). The Consent Decree approved by the United States District Court on November 6, 2013, obligated Respondent to make certain ADA improvements to the Hotel on or before August 1, 2014. Respondent elected to make more extensive ADA renovations to the hotel than required by the Consent Decree. The ADA renovations were delayed because the Hotel changed contractors and rebid the job. As a result of the delay, the building permits for the renovations expired prior to construction. On July 14, 2014, Respondent signed a new contract with Pemberton Building, Inc., a licensed general contractor, to complete the ADA work. The Hotel obtained extensions for completing the work, and the building permits were revived. Although Petitioner suggested that changes to accommodate her disability would be easy, the renovations required to make the Hotel rooms ADA compliant were extensive. They were not a matter of just putting in a handrail or widening a door opening. The six rooms at the Hotel undergoing renovations for ADA compliance were completely gutted. At the time of the hearing, the plumbing for the six rooms had been completed and the remaining work was proceeding. In sum, the evidence presented by Petitioner in this case was insufficient to show that Respondent discriminated against Petitioner based upon Petitioner’s handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief, and denying Respondent’s request of an award of costs and attorney fees. DONE AND ENTERED this 6th day of January, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2015.
The Issue Whether Petitioner, Vanessa Brown, a member of a protected class, was denied rental of a room at the hotel called the Sleep Inn owned by Respondent, Capital Circle Hotel Company, on or about May 27, 2000, on the basis of her race (African-American) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner is a member of a protected class (African- American). Respondent was on May 27, 2000, and is the owner of the Sleep Inn located in Temple Terrace, Florida, which is a public lodging establishment. In the early morning hours of May 27, 2000, Petitioner was denied accommodations at the Sleep Inn. Cheryl Dodd was working as night auditor and desk clerk for Respondent on May 26, 2000, and May 27, 2000. At approximately 4:00 a.m., Petitioner entered the Sleep Inn with Frederich Mobley (also African-American) and asked to rent a room. Before Petitioner could complete her request, Dodd told Petitioner she was sold out. Dodd made no effort to check the Sleep Inn computer system or reservation card system to determine if a room was available before immediately interrupting Respondent and telling her that no room was available and no room would be available until the next day in the afternoon. Petitioner and Mobley left the lobby of the Sleep Inn and returned to the parking lot. In the parking lot, Mitchell Jamerson was wiping down his car, because he could not sleep. Jamerson (an African-American) struck up a conversation with Mobley and Respondent. He asked the two of them if they had been told there were no rooms available. Jamerson told them that he was with a softball team and four of his team members had called to tell him they had had car trouble, would not be able to get to the motel that night, and that their rooms would not be needed. About ten minutes after Petitioner left the hotel lobby with Mobley, a Caucasian male entered the hotel lobby and came back out. Jamerson spoke to the gentleman, and he said he had just rented a room for him and his wife for the night, without a reservation. Jamerson accompanied Petitioner and Mobley back into the lobby. Petitioner asked Dodd why she could not have a room when a room had just been rented to the Caucasian male. Dodd said she had given the Caucasian male a room with a cot. Petitioner asked why she was not offered that room. Dodd told Petitioner that she did not think they would want a room with a cot and that there were no other rooms available. Dodd told Petitioner that she (Petitioner) could speak to the manager the next day, and gave her the card of John C. Walters. The time of the end of Petitioner's second visit to the lobby was 4:10 a.m. on May 27, 2000. At approximately 12:00 a.m., Jamerson had gone to the front desk and told the desk clerk, Dodd, that three rooms reserved by his team would not be needed that night because his team members had had car trouble in Wildwood. Jamerson and his team (other than the four mentioned above), including both African-Americans and Caucasians, had checked in at approximately 7:30 p.m. on the evening of May 26, 2000. The rooms they were given were missing towels. During the registration and when asking for towels, they believed they were treated rudely. Jamerson stated that the clerk on duty at 12:00 a.m. midnight and at 4:00 a.m. on May 27, 2000, was the same person at the desk when he checked in with his team at 7:30 p.m. on May 26, 2000. Dodd testified that she came on duty at 11:00 p.m. that night for an 11:00 p.m. to 7:00 a.m. shift. However, John C. Walters, the manager of the Sleep Inn, stated that Dodd often helped out during shifts other than the 11:00 p.m. to 7:00 a.m. shift. Neither Dodd nor Walters could identify who was on shift at the hotel for the 3:00 p.m. to 11:00 p.m. shift that night. Dodd, contrary to the testimony of Jamerson, Petitioner, and Mobley, said Petitioner came into the hotel both times with two men. Dodd also said that she had checked in two sets of parents and two African-American females into two rooms at approximately 11:00 p.m. or 12:00 a.m. She stated that the individuals had reservations and were parents of members of the baseball team. Jamerson stated that his team was the only team in the hotel, that he knew the teams in the competition that were to attend and that all the teams were comprised of adult women. No parents of his team stayed at the hotel on May 26, 2000, or May 27, 2000. Dodd's testimony on this incident is not credible. Dodd testified that she was running the night audit at the time Petitioner and Mobley entered the hotel, and could not check whether a room was available. Dodd admitted that she did not make that information known to Petitioner or Mobley. Dodd testified that she had started running the audit sometime between 1:00 a.m. and 2:00 a.m. that night, as was her practice, and that the audit took one to one and a half or two hours to run. However, Walters testified that he was not there the night of May 26, 2000, or May 27, 2000, but the audit took about 45 minutes. Dodd testified that she had had a gentleman call in to cancel a room because he had had car trouble. She testified that the gentleman had called approximately 30 to 45 minutes after Respondent and Mobley left the lobby. She said she told the gentleman that called that she would try to rent out the room, and if she could, she would not bill him even though according to policy she should. She then testified that the Caucasian male to whom she rented the room entered the lobby approximately 15 minutes later. Dodd testified that when she had a reservation and the person called in to cancel after 6:00 p.m. she would bill that client, but would rent out the room if possible. She said she could check people in and out while the audit was running. This testimony is not credible. Robert Bland testified that the policy of Respondent was to bill the customer who had a reservation if they canceled after 6:00 p.m. and not to rent the room out. The policy was based on the fact that the customer was being billed for the room and had a right to have that room available for him/her whether or not anyone else appeared to ask for the room. Bland presented a composite exhibit of the driver's license photographs of 14 African-Americans who rented rooms between May 10, 2000, and May 28, 2000. Bland could not confirm whether or not that was all the African-Americans who had rented rooms in the month of May or just all between the period of May 10, 2000, and May 28, 2000. Bland stated that all computer records of the registrations and other records other than the driver's license photos he presented for the period of May 2000 had been destroyed on a hard disk that had been damaged. Of those driver's licenses produced to demonstrate that the hotel did provide rooms to African-Americans, seven of those driver's licenses belonged to members of Jamerson's baseball team who had signed in on May 26, 2000, at 7:30 p.m. after Dodd was on duty. Jamerson's team had made reservations through one party by telephone and no identification had been made at the time of the reservations of their ethnic background. Bland could not state who had accepted the reservations of the African-Americans identified by driver's license photographs who were not members of Jamerson's team. Bland could not state that he knew that Dodd had ever rented a room to any African-American other than Jamerson's team members, who had arrived with prior reservations. Bland stated that Dodd had been given a new employee manual which was developed after Bland took over as Director of Operations. This was sometime after Dodd had actually started work at the Sleep Inn. No training was given to Dodd or any other employee on that manual. The manual states that no one should discriminate on the basis of any categories of discrimination. No other information that was provided indicated that Bland could verify that Dodd had read the manual. Dodd stated that she was provided an Employee Manual which warned against discriminating against minorities, and she did know from working in the hospitality industry that she should not discriminate. Dodd further testified that no one at the Sleep Inn asked her, suggested to her, or implied to her that she should give preferential treatment to Caucasians over African- Americans. Dodd specifically testified that at the time Petitioner came into the Sleep Inn, she was running the night audit of the motel on the computer and that to her knowledge no rooms were available at that time. Dodd further testified that early after Petitioner left the lobby, a room became available, that she was not aware Petitioner was waiting in the parking lot, and that the next prospective guests to enter the motel were a Caucasian couple. Walters testified that at the Sleep Inn, while he was there he rented to anyone who could rent a room. His purpose was to place "heads in beds."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a cease and desist order prohibiting Respondent from repeating this practice in the future; and A reasonable attorney's fee as part of the costs. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of October, 2002. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, a public lodging establishment, unlawfully discriminated against Petitioner, who is African-American, by refusing to provide her accommodations or service based upon race.
Findings Of Fact Petitioner Phyllis Phyl ("Phyl") is an African-American woman who resides in Boca Raton, Florida. Respondent G6 Hospitality, LLC, d/b/a Studio 6 ("Studio 6"), is the owner and operator of the Studio 6 Extended Stay Hotel located in Pompano Beach, Florida (the "Hotel"). Phyl arrived at the Hotel at around 1:30 p.m. on February 22, 2014. Previously, she had made a reservation for a two-night stay, booking a nonsmoking room with a queen bed. Phyl was aware that check-in time at the Hotel was 3:00 p.m., but she decided to take a chance that a room would be available for earlier occupancy. When Phyl attempted to register, however, the clerk informed Phyl that no rooms were available for early check in. Phyl elected to wait in her car, which was parked in the Hotel's parking lot. From there, she watched a black man enter the Hotel and walk out a few minutes later. Phyl assumed that he, too, had been told that his room was not ready. She did not, however, witness his attempt to check in (if that is what occurred), and therefore Phyl lacks personal knowledge of this man's transaction with the Hotel, if any.2/ Unhappy, Phyl walked around the Hotel grounds and peered through the window of an apparently vacant room, which she determined, based on her observation, was clean and ready for occupancy. Phyl might have been mistaken, for she could not see, e.g., the bathroom, but even if her assumption were correct, the fact is not probative of discriminatory intent. This is because a room is not "available" for guest occupancy at this Hotel until after a manager has inspected the room, deemed it "clean," and caused such information to be entered into the Hotel's computer system, at which point the front-desk clerk is on notice that the room is ready. Thus, there is a delay between the time the housekeeping staff finishes cleaning a room and the time the front-desk clerk is able to let the room to a guest. After peeking in the seemingly empty room, Phyl returned to her car, and soon she noticed a white couple enter the Hotel, from which they exited several minutes later. Phyl did not witness the couple's activities inside the Hotel. The man and woman got into their car and drove around the Hotel premises. Phyl followed. She watched the couple park, leave their car, and enter a room. She observed the man retrieve some luggage and bring his bags to the room. Phyl assumed that this couple had just checked in. Phyl returned to the Hotel lobby and inquired again about the availability of a room. This time the clerk told her a room was ready. Phyl checked in at 2:09 p.m. Phyl stayed two nights, as planned, and paid the rate quoted in her reservation. When she checked out on February 24, 2014, the clerk refunded the $25 security deposit Phyl had given the Hotel at check in, which was required because she wanted to pay cash for the room (and did). Phyl claims that the clerk was rude to her, and so she left without taking a receipt. Hotel business records show that on February 22, 2014, no guest checked in between Phyl's arrival at 1:30 p.m. and 2:09 p.m., when she herself checked in. The white man who (together with a female companion) seemed to have checked in while Phyl was waiting actually had checked in earlier that day, at 11:14 a.m. The undersigned rejects as unfounded Phyl's contention that the Hotel's records are unreliable and possibly fraudulent and instead accepts them as persuasive evidence. Ultimate Factual Determinations At the material time, the Hotel was a "public lodging establishment" within the reach of section 509.092, Florida Statutes, and a "public accommodation" as that term is defined in section 760.02(11). Thus, the Hotel is accountable to Phyl for unlawful discrimination in violation of the Florida Civil Rights Act if such occurred. The greater weight of the evidence, however, fails to establish that the Hotel refused accommodations or service to Phyl, or otherwise unlawfully discriminated against her. Rather, the Hotel provided Phyl the type of room she had reserved, at the quoted rate, for the length of stay she requested. Indeed, despite arriving 90 minutes before the Hotel's published check-in time, Phyl was able to get a room early, after waiting little more than half an hour. The Hotel's conduct, in this instance, cannot be faulted.
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 Phyl's Petition for Relief. DONE AND ENTERED this 22nd day of April, 2015, in Tallahassee, Leon County, Florida. S 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 22nd day of April, 2015.
The Issue Whether, Respondent, Asurion Services, LLC (“Respondent” or “Asurion”), engaged in unlawful employment practices as alleged by Petitioner, Annemarie Wolny (“Petitioner”), in violation of the Florida Civil Rights Act of 1992 (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1 1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Asurion is a provider of electronic device insurance, warranty and support services for cellular phones, consumer electronics, and home appliances. As part of its services, Asurion provides technological support and repair services for the world’s leading mobile carriers, retail companies, and other businesses, enabling subscribers and customers to fully utilize their digital devices, applications, and equipment. Asurion is an employer as defined by the FCRA. See § 760.02(7), Fla. Stat. Petitioner was employed as a Service Advisor with Asurion’s Service Operations Program beginning on March 27, 2017. Essential job functions of the Service Advisor role include: the ability to utilize active listening skills and troubleshoot resolutions; the use of proper tone in providing information to customers and service providers; and the ability to resolve escalation and complaints, among other things. As a Service Advisor, Petitioner was responsible for working and negotiating with Asurion’s network of service providers to ensure a high level of customer satisfaction in their repair experience. Service Advisors are trained during their first week of employment, and thereafter, can access online training tools at any time during their employment. When hired, Petitioner received an electronic copy of Asurion’s Employee Handbook which contains, inter alia, Asurion’s equal opportunity employment policy prohibiting “discriminat[ion] against applicants or employees on the basis of … physical or mental disability….” The Employee Handbook also outlines Asurion’s Reasonable Accommodation policy, Attendance policy, and Customer Relations and Professional Behavior policy. During her early months of employment with Asurion, Petitioner established a reputation as a quick learner, and was eager to acquire new knowledge and skills, while maintaining a keen sense of awareness to detail. Petitioner was trained in several different departments at Asurion, and was willing to work during the holidays. During the first several months of her employment, Petitioner earned a number of accolades for quality work, including being recognized as employee of the month for December 2017. Field service managers would often recognize Petitioner’s hard work. Due to the quality of her work, Asurion auditors would frequently reach out to Petitioner and compliment her on her work. Sometimes agents from other teams would congratulate Petitioner on her work, since it made their jobs easier. On one occasion, a customer even wrote a letter to Asurion reporting the “impeccable” service they had received from Petitioner. In June of 2017, Petitioner witnessed a colleague being bullied by another colleague. The victim of this incident was crying at her desk, which made Petitioner believe that this treatment needed to be reported to her superiors. Petitioner reported the incident to her supervisor, Marie Alter. A few months later, Petitioner was reassigned to another department. On another occasion (July or August 2017), Supervisor Megan Bass confided in Petitioner her dislike for Petitioner’s African-American colleague, Ebony Shipman. Ms. Bass slandered Ms. Shipman to Petitioner, alleging that Ms. Shipman almost hurt Ms. Bass’s chance for promotion. On October 14, 2017, Petitioner and her four-year-old daughter were the victims of a violent and brutal physical attack. Following the attack, Petitioner began to display signs of mental illness, and as a consequence, began seeing a mental health counselor. This illness was diagnosed as Post Traumatic Stress Disorder (“PTSD”). Approximately three months following the October 2017 incident, Petitioner experienced a second traumatic event, which further compounded her PTSD. In an effort to continue her ability to function at work, Petitioner requested accommodations for her PTSD condition. Specifically, Petitioner requested on different occasions to have additional paid breaks during her shift, to be moved to a team that did not handle customer escalation calls, and to have intermittent leave under the Family and Medical Leave Act (“FMLA”). As a result of this request, Petitioner was approved for three 10 to 15 minute unpaid breaks. In early 2018, Petitioner witnessed harassment and discrimination towards disabled colleagues, and other colleagues. Being subjected to this inappropriate behavior triggered Petitioner’s PTSD, and so she requested a one-on-one meeting with her then-manager, Nestor Lebron, in February of 2018 to discuss her discomfort with her working conditions. At hearing, the work culture at Asurion’s Command Center was described by former and current employees as toxic and unprofessional. In addition, some employees were treated more favorably by supervisors than others. The consistency of their description of the dysfunctional workplace lends credibility to their testimony. In March or April 2018, Petitioner requested to work from home as she was becoming extremely sensitive working in a hostile work environment in which she felt she and her colleagues were being targeted for harassment. Even though Asurion had many work-at-home agents, Petitioner’s request was initially denied. On April 12, 2018, Petitioner met with Lauren Welch from Human Resources to discuss her requested work-at-home position. In this meeting, Petitioner discussed her troubling observations of the activities going on in the Command Center, including the unfair and unequal treatment that Petitioner had observed in that workplace. During this meeting, Petitioner offered to provide Asurion with medical documentation of her PTSD illness to assist with her work-at-home approval. Ms. Welch advised that documentation was not necessary. During the meeting of April 12, 2018, Petitioner made her first of many requests to be transferred to the SST Team, working with the Parts Department. Petitioner had worked on this team previously and had found it to be less stressful. Petitioner was not reassigned to this department, but subsequently learned that other agents, including Beverly Miller, Ray Legliter, and Mary Henderson, were all moved to that department following Petitioner’s request. While Petitioner was not approved for transfer to the Parts Department, her request to work from home was approved, effective April 30, 2018. Petitioner discussed her medical condition with her supervisor, Marie Alter, during a one-on-one meeting on May 11, 2018. During her first month of working from home, Petitioner was falsely accused by Ms. Alter of performing certain unprofessional actions. While Petitioner consistently maintained that she had not acted inappropriately, Ms. Alter did not relent in her accusations. Understandably, these unfounded accusations reinforced Petitioner’s belief that she was being targeted for harassment. On June 15, 2018, Petitioner received a “Final Warning” following her telephonic interaction with an employee of a contracted service center. As Petitioner explained at hearing, “I was mistreated by an employee that was contracted through Defendant. This employee works with Defendant to repair appliances. This woman was being argumentative and refused to provide the answers I needed to perform my work.” In response to the verbal abuse she was receiving, Petitioner disconnected the call. The Final Warning noted that “Your tone overall became curt, short and very defensive.” Petitioner acknowledged that she could have done a better job de-escalating the situation, and requested that she be approved for additional training, including listening in on other escalated calls. In response to Petitioner’s request for some kind of plan to help strengthen her performance in an area she struggled with, an Action Path meeting was created with Supervisor Marie Alter on June 25, 2018, for every Monday. The first meeting was scheduled for July 2, 2018, and in a follow-up email from Ms. Alter, it was explained that the meetings over the next couple of months would focus on improving Petitioner’s communications with providers and customers. However, on July 9, 2018, Petitioner’s Action Path was cancelled, without explanation. Petitioner made ongoing efforts to clearly communicate to Asurion the effects of her PTSD on her mental condition, and the impact that stress had on exacerbating her condition. Although Petitioner had made several requests to listen to a call where an agent successfully de-escalated an escalated client, she was advised Asurion could not locate any. However, in July 2018, quality analysts graded a call in front of the entire Command Center of an African-American woman, Tangia Carter. Ms. Carter received a score of 10 out of 100. No effort was made to hide the identity of the employee being graded. The employee was humiliated and embarrassed as a result. Petitioner reported this incident to her supervisor. In July 2018, another agent disconnected a call with a customer. The agent, Josh Johnson, had the same supervisor as Petitioner at the time Petitioner received her Final Warning for the same offense. However, unlike Petitioner, Mr. Johnson did not receive a Final Warning for disconnecting the call. On August 20, 2018, Petitioner sent an e-mail to Human Resources’ employee Logan Durham advising that the training verbally promised to Petitioner had not been provided. Petitioner also advised Mr. Durham that her request to listen to phone calls of highly escalated customers in an effort to better understand tone and effectively de-escalate customers had not been approved. In a September 11, 2018, Zoom meeting with Tiffany Trevino of Human Resources, Petitioner made another request to listen to highly escalated calls to gain a better understanding of tone and how to de-escalate customers effectively. Petitioner had come prepared to the meeting with concerns to discuss. However, Ms. Trevino would not allow Petitioner to speak, and asked her not to read her notes. After the meeting, Petitioner e- mailed her notes to Ms. Trevino so that it was documented that Asurion had been made aware of her concerns. Seven days following Petitioner’s conversation with Human Resources requesting that she be transferred to a less escalated team, an opportunity opened up in the Command Center. Specifically, on September 18, 2018, there was an opening on the SPT Team. This team is lower in escalations as the customers are rarely contacted, and agents only make recommendations of how to proceed with a claim. Rather than transferring Petitioner to the now-available lower-stress position, Asurion added required qualifications it knew would render Petitioner ineligible for the position. Those requirements were that an agent could not be on any corrective action (Petitioner was on a final written warning); the agent must work “brick and mortar” (Petitioner worked from home); and the agent must be performing well in quality metrics (the only area Petitioner needed improvement on was her quality metrics). The OEM Team, which is another low stress team that communicates primarily via e-mail, was created around the same time. On September 24, 2018, an e-mail was sent from Supervisor Megan Bass advising of the creation of the team, however, Petitioner was not included on the e-mail. In October 2018, Christina Oregon, another agent who had disconnected a customer call (requiring corporate involvement), was promoted to the SPT Team. On November 14, 2018, and again on January 23, 2019, Petitioner made additional requests to Human Resources for permission to listen to highly escalated calls in order to improve her de-escalation skills. In response to these requests, Petitioner was advised by Ms. Trevino that this request could not be considered training. When Petitioner again asked about being transferred to a lower-stress team, Ms. Trevino advised Petitioner that she would have to apply for the position the same way people without a disability would have to. Ms. Trevino made this statement to Petitioner even though she knew Petitioner was ineligible due to the final written warning she had received. In September of 2018, Petitioner sent in a task to be reviewed by the Audit Department. The claim was incorrectly worked by another agent, and had left a senior citizen without a working refrigerator for two weeks. Going against the company's best interest, as well as the customer’s, Supervisor Megan Bass retaliated against Petitioner, advising that the delayed process this agent took was in fact correct. Normally, when something is sent to the Audit Department, the claim is handled from there. It was not protocol to send it back to the agent who sent it in. It was Petitioner’s responsibility to report any issues she observed with workflow, and Ms. Bass’s response to Petitioner’s legitimate concern with customer service served to further harass Petitioner. Petitioner provided numerous examples of being ignored by her supervisors when requesting assistance with customer complaints and workflow concerns. In contrast, her colleagues were receiving immediate assistance from the leadership team in addressing their concerns. For example, on November 22, 2019, a customer Petitioner was working with requested to speak with a supervisor, but Petitioner was advised that none were available to assist. Throughout the duration of this claim, no supervisor called this customer back. Later, Petitioner was reprimanded for not offering the customer a gift card for his inconvenience. When Petitioner expressed her dismay about supervisors not returning calls to customers, she was again met with a reprimand for offering the customer a supervisor callback. Petitioner’s actions were correct, and were consistent with the training she had received on the company’s operating procedures. The hostile working conditions described above resulted in Petitioner experiencing a debilitating panic attack, leaving work early, and visiting a hospital emergency room on November 26, 2019. This panic attack affected Petitioner’s ability to think clearly and function normally. Pursuant to Asurion’s policy, Petitioner reported her absence from work to the AbsenceOne system, from the emergency room. The AbsenceOne system automatically notifies Asurion, including Petitioner’s supervisors, of absences via e-mail. The following morning, with the panic attack continuing, Petitioner was able to collect herself enough to explain what had happened to her supervisor, TJ Mark. In response, Petitioner received a final written warning for not contacting her supervisor immediately upon her absence from work. On April 28, 2020, Petitioner’s first day back from a week-long panic attack episode triggered by Asurion’s hostile work environment, Petitioner was terminated by Respondent for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. Petitioner had been belittled by this customer after issuing a denial for physical damage to his ice bucket. Per the service agreement, Asurion does not cover any failure caused by physical damage, intentional or otherwise, a result the customer was not willing to accept. Again, Petitioner’s actions on the call were consistent with her training, and were appropriate. As Petitioner credibly testified at hearing: The customer was clearly argumentative and I kept repeating, have a nice day, as I did not want to argue with him about what I was trained to do. Due to the rationale provided, I felt that I had made the best decision under the circumstances. Honestly, I was going to be retaliated against no matter what route was taken. If I offered a supervisor, I would have been in reprimand for offering a supervisor on a physically damaged ice bucket that did not affect the function of the ice maker. Following her termination, an e-mail was sent out to all employees in the Command Center advising of Petitioner’s termination and reason for termination. As a result of this email, approximately 200 employees were informed of the reason for Petitioner’s termination, which Asurion identified as “gross misconduct.” No other terminated Asurion employees were subjected to this form of public humiliation. The evidence credibly established that Petitioner was subjected to a hostile work environment, was not provided the reasonable accommodation she requested, and was retaliated against for engaging in protected behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Annemarie Wolny’s Petition for Relief, as follows: Finding that Respondent, Asurion, engaged in a discriminatory employment practice based on Petitioner’s disability; Awarding Petitioner back pay from the date of termination; and Awarding Petitioner reimbursement for mental health services incurred as a result of Asurion’s misconduct. DONE AND ENTERED this 28th day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annemarie Wolny W4598 County Road RR Random Lake, Wisconsin 53072 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Deadrick Thaxton Asurion Suite 300 648 Grassmere Park Nashville, Tennessee 37211 Casey M. Duhart, Esquire Waller Lansden Dortch & Davis, LLP Suite 2700 511 Union Street Nashville, Tennessee 37219
