The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issues in this case are whether: Respondent discriminated against Petitioner on the basis of her sex, for the reasons stated in the Charge Of Discrimination and Petition For Relief; Respondent sexually harassed Petitioner; and whether Petitioner's termination from her employment was unlawful because it was an act of retaliation against Petitioner for Petitioner's complaint of sexual harassment.
Findings Of Fact Respondent employed Petitioner from March 21, 1991, through December 6, 1994. Respondent employed Petitioner as a food server at the Holiday Inn Maingate Hotel restaurant. During the period in which Respondent employed Petitioner, Respondent maintained various written policies and procedures that were issued to each food server including Petitioner (the "policy"). In relevant part, the policy required food servers: to write guest food orders on approved guest checks, each of which bore a separate serial number; to give customer discounts only upon request of the customer and approval of management; not to leave cash unattended and displayed at the cash register when the cashier was busy or otherwise not at the cash register; and, at the end of each shift, to account for all cash received and guest checks written during the shift. Effective on October 13, 1994, Respondent changed the approved guest checks from green to white checks. At the beginning of each shift, Respondent issued numbered guest checks to each server. At the end of each shift, Respondent accounted for each numbered guest check. In late 1994, Respondent suspected that someone on the night shift at the restaurant was stealing money. Petitioner worked on the night shift and was a suspect. Respondent asked its director of security to plan and execute a "sting" operation in an attempt to discover the source of the suspected theft. The director hired Mr. Robert Painter to act as a "shopper" as part of the sting operation. The procedure used for the sting operation is a customary investigative procedure within the industry. On December 2, 1994, the director of security gave Mr. Painter four marked $20 bills. The director instructed Mr. Painter to have dinner at the restaurant and to ask for Petitioner as his server. On December 2, 1994, Mr. Painter had dinner at the restaurant, accompanied by three other individuals. Petitioner was the server. The total bill for the dinner exceeded $68. However, Petitioner presented a discounted bill to Mr. Painter in the amount of $59.70. Neither Mr. Painter nor anyone in his party had requested a discount. The discount was not approved by a manager. Petitioner presented a green guest check to Mr. Painter. The only thing written on the check was a total of $59.70. Petitioner did not leave the green guest check on the table for Mr. Painter. Mr. Painter paid Petitioner with three of the four marked $20 bills. Petitioner went into the kitchen without going to the cash register first. Petitioner later returned with change for Mr. Painter. Mr. Painter then reported the events of the night to the director of security. The director prepared a typed statement which Mr. Painter signed. The director of security then conducted an audit of the cash register. He tracked all of the white guest checks issued to Petitioner at the beginning of her shift. He counted the money in the register and searched for the marked bills. The green guest check that Petitioner used for Mr. Painter could not be found. The audit was able to account for all of the white guest checks issued to Petitioner at the beginning of her shift. An amount of $59.70 had not been entered into the register. The register tape did not include that amount. However, the register did not have more money in it than it should have had if the $59.70 had been placed into the register without ringing up a charge for $59.70. The director of security interviewed Petitioner in a back room of the restaurant. During the interview, Petitioner claimed to have written the dinner order for the Painter party on a white guest check, which was not found in the audit. Petitioner also stated that she did not obtain approval by a manager for the discount because a manager was not available. However, Mr. Jon Joesph, a manager was available when Petitioner gave the discount to Mr. Painter. The director of security left the interview to return to register and to conduct a further investigation. The director left Petitioner alone with Mr. William Glenn, one of the director's employees. Mr. Glenn said to Petitioner, "Well, you know, we can solve this problem right now if you just get on your knees under the table for a few minutes." Mr. Glenn intended the comment to be a joke; a crass and boorish attempt at comic relief. When the director returned, Petitioner did not mention the comment by Mr. Glenn. The director instructed Petitioner to leave the premises but to return on December 5, 1994, to speak with Glenda Razzano, Director of Human Resources. On December 5, 1994, Petitioner attended a meeting with Ms. Razzano, the director of security, Mr. Glenn, and Mr. Robert Falk, director of food and beverage and the dining room manager. At the meeting, Petitioner stated that she had given Mr. Painter a discount without a manager's approval, wrote the Painter order on a blank sheet of paper instead of a guest check, and that she left the money unattended at the register. Petitioner further stated that she did not violate Respondent's policy. Petitioner asserted that the policy had been modified by practice and that all of her actions complied with the modified policy. Petitioner provided the names of other who would attest to the modified policy. Petitioner then reported the sexual comment made by Mr. Glenn when the two were alone in the interview room the previous night. Ms. Razzano asked Mr. Glenn if the allegation was true, and Mr. Glenn readily admitted making the statement. Petitioner did not state that Mr. Glenn had harassed her previously or that she had complained to a manager regarding any harassment by Mr. Glenn. Neither Ms. Razzano nor any other manager had ever received a complaint from Petitioner alleging that Mr. Glenn was harassing Petitioner. In his position as a security guard, Mr. Glenn had no supervisory authority over Petitioner. Mr. Glenn had no input in hiring and firing decisions and was not involved in the eventual decision to terminate Petitioner's employment. Immediately after the meeting, Ms. Razzano questioned Mr. Glenn again about the statement. Mr. Glenn again admitted making the statement but explained it as a bad joke that was consistent with a history of bantering between he and Petitioner. Ms. Razzano accepted Mr. Glenn's explanation as truthful but terminated Mr. Glenn's employment the same day. The next day, Ms. Razzano continued the investigation of Petitioner by interviewing all of the food servers, including those named by Petitioner, concerning the modified policy described by Petitioner. All of the servers stated that they understood the policy and stated that actual practice did not modify but conformed with the written policy. Ms. Razzano also interviewed the food and beverage manager, the kitchen supervisor, and the assistant general manager. Each individual confirmed that actual practice conformed with the written policy. Ms. Razzano presented the results of her investigation to the general manager, the food and beverage director, and the assistant manager. The decision was made to discharge Petitioner. On December 6, 1994, Ms. Razzano terminated Petitioner's employment. Neither Respondent nor any of its employees sexually harassed Petitioner. Respondent had a written policy in force during Petitioner's employment which prohibited sexual harassment. Any employee who felt that she had been sexually harassed was required to report the incident through Respondent's "feed back" procedure, directly to the general manager, or to the headquarters of Holiday Inn through a published 800 number. Respondent's written policy against sexual harassment was distributed to and signed for by all employees. Petitioner never reported any incident of sexual harassment by Mr. Glenn or any other employee. The records of Petitioner's mental health consultations since 1989 do not reflect any complaints of harassment, or other negative incidents at work. The records do indicate that Petitioner was abused as a child and is particularly vulnerable to sexual comments. Mr. Glenn did make inappropriate comments to two other female employees. One female employee did not report the comments to management. The other female reported the comments to management. The director of security instructed Mr. Glenn to stop his behavior, and the comments to that female employee stopped. Respondent did not know that Mr. Glenn engaged in any sexual harassment or other inappropriate comments or behavior regarding Petitioner. Respondent did not have reason to know, and should not have known, that Mr. Glenn engaged in any sexual harassment or other inappropriate comments or behavior regarding Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner. RECOMMENDED this 6th day of May, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May 1998 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florid 32399-0700 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florid 32399-0700 Gary E. Doane, Esquire Hightower and Doane 725 West Colonial Drive Orlando, Florida 32804 Sheila M. Cesarano, Attorney Shuts and Bowen, LLP 201 South Biscayne Boulevard Suite 1500 Miami, Florida 33133
The Issue Whether Petitioner, Barbara Robinson, was subject to an unlawful employment practice by Respondent, Attractions Lodging Leisure, Inc., d/b/a All Guest Services, in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner requested this evidentiary hearing to prove her allegation that All Guest discriminated against her based on her age, national origin, and race. At the final hearing, Petitioner described herself as “a black Jamaican female over the age of forty.”4/ All Guest operates a tourism business in Orlando, Florida. Its business consists of placing sales representatives, or “concierges,” in hotel lobbies throughout the Orlando area. These concierges assist hotel guests by promoting and selling theme park tickets, answering questions about local attractions, and generally helping the guests feel happy about their stay. All Guest currently employs over 150 concierges in 75 hotels across Orlando. All Guest hired Petitioner as a concierge in October 2012. All Guest assigned Petitioner to work in a specific hotel. Petitioner was 48 years old at the time All Guest hired her. Petitioner worked for All Guest from October 2012 until May 2018. By all accounts, Petitioner was a dependable worker with no noted deficiencies in her job performance. Testimony at the final hearing established that Petitioner was qualified to perform her duties as a concierge, and All Guest was pleased with her work. Petitioner remained in the position of concierge during her five years with All Guest. Beginning as early as 2013, however, Petitioner became increasingly disenchanted by what she perceived to be All Guest’s preferential treatment of younger, white employees. At the final hearing, Petitioner recounted how she desired, but was not considered or selected for, several promotion opportunities. She complained that All Guest was promoting younger individuals who were not more qualified that herself. To support her claim that All Guest (unlawfully) failed to promote her, Petitioner described the following incidents: All Guest promoted Schuyler McVicker to a Team Lead position within six months of his hiring, instead of offering the position to Petitioner. Mr. McVicker is a white male who is younger than Petitioner. All Guest promoted Jenn Janasiewicz to a Team Lead position for which Petitioner was not considered. Ms. Janasiewicz is a white female who is younger than Petitioner. In the summer of 2017, All Guest filled a Concierge Sales Manager position. Petitioner complained that All Guest did not approach her about applying for the opening. Petitioner also identified a position that All Guest filled with Andrea Romero. Like Petitioner, Ms. Romero is over the age of forty. However, she is approximately six years younger than Petitioner. Petitioner asserted that she gave All Guest a lot to be happy about. Ticket sales consistently increased through her efforts. All Guest, however, never approached her about a promotion. Petitioner felt ignored, overlooked, and under- appreciated by All Guest’s failure to acknowledge her strong work ethic, as well as her contributions to its business. Petitioner declared that she deserved advancement based on her performance. Further, Petitioner never received a raise during her time with All Guest. Petitioner claimed that those individuals who All Guest promoted received higher wages than she did. (At the final hearing, no proof was offered establishing the actual amount of the other employees’ pay.) As Petitioner became increasingly demoralized by her stagnant job status and low pay, in the latter part of 2016, she began looking for other employment. Ultimately, on May 28, 2018, Petitioner resigned from All Guest to accept a job that offered better financial opportunities. Armando Vazquez, All Guest’s current General Manager, testified at the final hearing. Initially, Mr. Vazquez commented that Petitioner was a quality employee and a good concierge. Mr. Vazquez remarked that Petitioner did a great job working with her customers. Mr. Vazquez explained that Petitioner’s position as concierge afforded her three avenues for “promotion.” First, Petitioner could transfer to a larger hotel with more guests to whom she could market and sell park tickets (thus receiving larger commission payments). Second, Petitioner could be promoted to a Team Lead position. Third, Petitioner could advance into a management position. Mr. Vazquez explained that in All Guest’s business structure, a Team Lead essentially handles day-to-day operations. A manager, on the other hand, is involved in issues of greater complexity, including business strategy and planning. All Guest employs more Team Leads than managers. Therefore, Team Lead positions become available more frequently than managerial positions. Despite the fact that All Guest was pleased with Petitioner’s performance, Mr. Vazquez testified that All Guest did not consider Petitioner for promotion opportunities for several reasons. First, during her five years with the company, Petitioner never expressed to anyone at All Guest, including Mr. Vazquez, that she was interested in a promotion. Therefore, All Guest was not reasonably aware that Petitioner desired to advance beyond her concierge job. Mr. Vazquez elaborated that during Petitioner’s employment, All Guest did not routinely post or publish specific promotion opportunities, except on one occasion. In June 2017, Mr. Vazquez sent out an e-mail to company employees announcing an open managerial position and articulated that, “If you are interested . . . please contact me immediately.” Petitioner did not apply for the position. Neither did she communicate her interest in the opening with anyone in All Guest management. As a result, All Guest did not consider her for the managerial position.5/ Secondly, All Guest was concerned with the manner in which Petitioner interacted with her coworkers, Team Leads, and managers. Mr. Vazquez expressed that Petitioner was not a “team player.” He testified that, on occasion, Petitioner’s treatment of her coworkers was disrespectful and insubordinate. Mr. Vazquez further relayed that Petitioner did not take criticism well. At the final hearing, Mr. Vazquez described several instances when All Guest felt that Petitioner’s conduct was less than satisfactory, including: November 10, 2014: Petitioner’s e-mail exchange with management. Mr. Vazquez pointed to Petitioner’s confrontational and impertinent tone. September 27 and 28, 2016: Petitioner’s e-mail communication with Team Lead Ricardo Bazan. Petitioner’s comments prompted Mr. Bazan to write, “I find your email to be rude and disrespectful.” October 13, 2016: Petitioner’s e-mails to Mr. Vazquez and Rick Schiebel (Director of Sales) regarding Petitioner’s request for time off. Petitioner’s e-mails caused Mr. Schiebel to reply, “Why do you have to be so negative and nasty to our team, including me?” and “I expect you to treat all managers and leads with dignity and respect.” October 18, 2017: Petitioner e-mailed Mr. Vazquez demanding that her manager must have “a valid REASON to come to [her] site to discuss any work related information, it is unacceptable for him to tell me he will be sitting down in my work site space to work on his laptop.” November 19, 2017: Through e-mail, Concierge Manager Andrea Romero reported a conversation with Petitioner in which Petitioner exclaimed that Mr. Vazquez “should go to management classes because he does not know how to run this company.” Finally, Mr. Vazquez asserted that Petitioner had issues with tardiness, as well as refused to commit to working at least one evening shift a week. (At the final hearing, Petitioner conceded that she was occasionally late for work. But, she adamantly denied that she had any pattern of tardiness, or ever failed to show up at all. All Guest did not refute Petitioner’s claim that All Guest never imposed or recorded any formal discipline on Petitioner for these alleged deficiencies in her work performance.) Based on the above reasons, Mr. Vazquez maintained that All Guest was neither inclined nor motivated to extemporaneously promote Petitioner to a higher position during the time she worked with the company. Regarding Petitioner’s complaints that younger coworkers were promoted instead of her, Mr. Vazquez offered several justifications. Mr. Vazquez explained that All Guest selected Mr. McVicker for a Team Lead position because his training matched All Guest’s business needs. Specifically, Mr. McVicker knew how to process transactions from the travel website Expedia, which distinguished him from Petitioner and others. Further, Mr. McVicker was a supervisor at his prior employment which qualified him to assume a part-time manager position with All Guest. Similarly, All Guest promoted Ms. Janasiewicz because her skill set matched All Guest’s business needs in a way that Petitioner’s did not. Finally, Mr. Vazquez explained that Ms. Romero had previously worked with All Guest for a considerable length of time, then resigned. When Ms. Romero subsequently expressed interest in returning to the company, All Guest believed that she was an excellent candidate for a managerial position given her prior experience and skills. Mr. Vazquez argued that Petitioner left All Guest on her own accord (for a better job opportunity), not because All Guest forced her to resign. Mr. Vazquez relayed that, prior to Petitioner leaving All Guest, he received a telephone call from a prospective employer in the hospitality industry who requested an employment reference. Mr. Vazquez testified that he provided Petitioner a positive reference. Mr. Vazquez denied that All Guest made any promotion decisions or refused to consider Petitioner’s advancement in the company, based on her age, race, or national origin. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that All Guest discriminated against Petitioner based on her age, race, or national origin. Accordingly, Petitioner failed to meet her burden of proving that All Guest committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Barbara Robinson, did not prove that Respondent, All Guest, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.
The Issue Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says: "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;" The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January 20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.
Recommendation It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.* * RO issue date of 2/22/77 was obtained from the docket sheet. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Franklin D. Boockholdt P. O. Box 433 Hilliard, Florida 32046
