The Issue Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
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 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
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2003.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on his gender.
Findings Of Fact Respondent is a staffing company that provides temporary employees to a variety of customers/employers. Respondent performs workforce management for its customers, including hiring personnel, providing new-employee orientation, and conducting ongoing training after the initial hire. Respondent provides its employees with harassment-free workplace training as part of the initial orientation. Thereafter, Respondent provides the harassment-free workplace training on an annual basis and more frequently at the request of its customers. Petitioner is a white male who worked as a temporary employee for Respondent on two occasions: from May 17, 1993, through July 27, 1996, and from June 30, 1997, through July 28, 2003. On both occasions, Respondent assigned Petitioner to perform maintenance work at the Island House Hotel in Orange Beach, Alabama. Petitioner was a maintenance technician at the Island House Hotel until Respondent promoted him to the position of Assistant Supervisor of Maintenance in 1998. Respondent promoted Petitioner to the management position of Chief Engineer in 1999. As Chief Engineer, Petitioner supervised five or six maintenance technicians. Petitioner received a salary but often worked more than a 40-hour week. For instance, Petitioner would stay at the hotel during hurricanes instead of going home to be with his family. At all times relevant here, Petitioner was aware of Respondent's written "Harassment-Free Workplace Policy." The policy defines sexual harassment as "unwelcome conduct of a sexual nature where an employee feels compelled to comply with the harassment as part of job betterment, or where the harassment interferes with an employee's work creating an intimidating or hostile work environment." The policy lists examples of sexual harassment, including unwelcome physical contact, request for sexual favors, and/or displays of a sexual nature. Respondent's Harassment-Free Workplace Policy goes on to discuss other types of discriminatory conduct. Specifically, the policy prohibits discrimination, such as intimidation or ridicule based on gender, race, color, national origin, sexual orientation, pregnancy, age, religion, disability, veteran status, or any other basis that creates an offensive work environment, or which results in an unfavorable job action. The policy lists verbal or written jokes or offensive comments based on race, sex, etc., as examples of discriminatory conduct. Respondent's Harassment-Free Workplace Policy advises employees, whether a victim or a witness, to report all incidents of discrimination or harassment. Respondent instructs its employees to report such complaints to their manager, their local office staffing specialist, and/or Respondent's corporate office, using a toll-free employee hot line. Petitioner had a good professional and personal relationship with Respondent's employees who were assigned management positions at the Island House Hotel. Specifically, Petitioner was friends with the following employees: (a) Barbara Walters, General Manager; (b) Glenn Johnson, Director of Operations; and (c) Margaret Lathan, Director of Housekeeping. Petitioner and Ms. Walters occasionally shared off- color jokes with each other. Sometimes they laughed about jokes with sexual connotations that one of them had copied from the Internet. On at least one occasion, Ms. Walters and Petitioner discussed hotel guests who were wearing bathing suits at the pool. There is no evidence that Petitioner was ever offended by the jokes; he never complained to Respondent about the jokes. Ms. Walters personally was not offended by the jokes. In time, however, she became concerned that Petitioner's jokes and comments to employees other than herself were no longer appropriate in the workplace. Eventually, Ms. Walters began to verbally counsel Petitioner to clean up his language and to be careful of his remarks to other employees because they might consider them offensive. Petitioner and Ms. Latham also enjoyed sharing jokes of a sexual nature with each other. On one occasion, Ms. Latham gave Petitioner a T-shirt when she returned from vacation. The back of the shirt had pictures of ladies’ butts wearing bikinis. There is no evidence that Petitioner found the shirt offensive; he never complained to Respondent or anyone else about the T-shirt. On or about June 23, 2001, Ms. Walters wrote a note to Petitioner. Ms. Walters requested that Ms. McDowell place the note in Petitioner's personnel file. The note stated as follows: After our conversation on Wednesday, I thought we had cleared up my concerns with you. Today I discover that your "blond" lady that does awnings was in your office yesterday and that you allowed her to accompany you to repair the washer in the laundry. This is totally unacceptable and violates Hotel policy and safety issues. I do not expect you as a manager to have outside vendors in areas that they are not here to inspect, study, or to prepare estimates for. I will not discuss this any further with you. Ms. Walters would have written the above-referenced note if Petitioner had invited an unauthorized male to accompany him into a secure area. However, Ms. Walters was especially concerned because the incident involved a female. On at least two occasions, Ms. Walters made special requests for Respondent to conduct a class to review Respondent's harassment policy with her management team. She made these requests because her management team consisted of members who were of various ages. Ms. Walters wanted to make sure that the management team was aware that times had changed, and that conduct, which had been acceptable years ago, was no longer acceptable in today's workplace. At the request of Ms. Walters, Respondent's staffing specialist, Martina McDowell, conducted a class on Respondent's harassment policy at the Island House Hotel on January 31, 2002. Petitioner, Ms. Walters, and Ms. Latham attended the class. During the January 2003 class, Petitioner received a copy of Respondent's Harassment-Free Workplace Policy. He signed a statement acknowledging that he had read and understood the policy, including the procedure to report violations. On February 14, 2002, Petitioner signed a copy of Respondent's "New Employee Orientation Guidelines: Policy & Procedures." This document includes Respondent's discrimination and harassment policies, which Petitioner initialed. Ms. McDowell signed the document under Petitioner's signature. In the last year of Petitioner's employment at the Island House Hotel, Ms. Walters realized Petitioner was under stress in his personal life. She also noticed a change in his behavior at work. Ms. Walters felt that Petitioner's jokes and other attempts to be humorous became more intense. Ms. Walters was so concerned that she requested Ms. McDowell to counsel Petitioner on more than one occasion. During the counseling sessions, Ms. McDowell advised Petitioner that off-color jokes were not accepted in the workplace. Ms. McDowell also told Petitioner that flirting with female co-workers was inappropriate and would be considered as sexual harassment under Respondent's policy. Respondent does not provide the Island House Hotel with employees to perform housekeeping duties. Island House Hotel contracts with a company by the name of TIDY for housekeeping services. Ms. Latham, as Director of Housekeeping, does not supervise TIDY's housekeepers directly. Instead, she interacts with TIDY's supervisors to ensure that the housekeeping duties are performed. One of TIDY's housekeepers was a young female named April. She began working at Island House Hotel on or about July 23, 2003. On Friday, July 25, 2003, Petitioner grabbed and jiggled his private parts as he walked down the hall to the elevator at the Island House Hotel. April, Ms. Latham, and a porter named Alan Hoffman, were standing at the elevator. Ms. Latham observed Petitioner's conduct and considered it offensive. Ms. Latham could tell that Petitioner's inappropriate behavior embarrassed April. On Saturday, July 26, 2003, Ms. Walters was working at the Island House Hotel when she learned that a young man was at the front desk. The young man wanted to speak to Ms. Walters privately. Therefore, Ms. Walters invited the young man to go with her to the sales office. During the conversation, the young man complained to Ms. Walters that an older gentleman named Ben, who worked at the hotel, had made inappropriate gestures to his fianceé, April. Specifically, the young man alleged that Ben had grabbed his private parts and jiggled them in front of April, who was offended by such behavior. Ms. Walters talked to Ms. Latham after the young man left the hotel. Ms. Latham confirmed that she had witnessed Petitioner grabbing his private parts in front of April. Immediately after talking to Ms. Latham, Ms. Walters called Respondent's branch manager, Sherry Moore. Ms. Walters told Ms. Moore that Respondent needed to release Petitioner from his assignment at Island House Hotel. Ms. Moore contacted Ms. McDowell by telephone. Ms. Moore instructed Ms. McDowell to contact Petitioner and instruct him to report to Respondent's office in Gulfport, Florida, on July 28, 2003. On Sunday, July 27, 2003, Ms. McDowell contacted Petitioner. Ms. McDowell told Petitioner to report to her office the next day instead of returning to work at Island House Hotel. On Monday, July 28, 2003, Petitioner met Ms McDowell at her office. Ms. McDowell explained that Respondent had received a sexual harassment complaint involving his behavior. Petitioner's initial reaction was to state that he had talked to the little girl and that she was okay with his apology. The little girl that Petitioner referred to was not April. Petitioner's initial statement in Ms. McDowell's office related to an incident involving a female employee of the hotel's beach service. Ms. McDowell informed Petitioner that the complaint involved a housekeeper. After explaining the allegations against him, Ms. McDowell relieved Petitioner of his work assignment at Island House Hotel. Petitioner became angry, stating as follows: "Well, if Ms. Walters was going down the hallway and her ass was itching and she scratched it, would you fire her too?" Ms. McDowell responded that she was dealing only with a complaint brought against him, where another employee had witnessed his conduct. Ms. McDowell did not tell Petitioner that he was terminated as one of Respondent's temporary employees. Respondent's policy requires employees to make themselves available for work assignments. Employees are supposed to contact Respondent within 48 hours of the time that a work assignment ends if they are available for another job. Thereafter, employees are required to contact Respondent on a weekly basis. Petitioner did not follow Respondent's policy in this regard. In any event, Ms. McDowell conducted a follow-up investigation. The investigation included interviews with Ms. Walters, Ms. Latham, and Mr. Hoffman. Ms. McDowell was unable to talk to April who never returned to work. After completing her investigation, Ms. McDowell considered Petitioner's employment terminated. On or about November 21, 2003, Ms. McDowell requested that Ms. Latham make a written statement regarding the July 25, 2003, incident. Ms. Latham made the following statement: April (housekeeper), Alan (porter) and myself were standing by the elevator when Ben Torres came down the hall and grabbed his privates. Ben might not have realized April was standing there, he made these gestures all the time and I told him many times, that one of these days he will do it in front of the wrong person and get in trouble. Most of the housekeepers knew how he was and just ignored his behavior. Respondent did not hire another Chief Engineer to replace Petitioner. Instead, Respondent assigned the duties of Chief Engineer to Glenn Johnson, the Director of Operations at the Island House Hotel. Mr. Johnson is a white male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of June, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Debra Dawn Cooper, Esquire Debra D. Cooper, Attorney 309 West Gregory Street Pensacola, Florida 32502 Jane M. Rolling, Esquire 5301 North Ironwood Road Post Office Box 2053 Milwaukee, Wisconsin 53217 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
