The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioner 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.1/
Findings Of Fact Parties and Jurisdiction Petitioner is an African-American female who resides in the State of Missouri, who visited Orlando, Florida, in June 2011, and who had a reservation for accommodations at Lake Eve Resort beginning on June 24, 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. Petitioner arrived in Orlando on June 17, 2011, where she stayed at the Hilton Grand International Resort (Hilton Grand) with her immediate family. Her reservation at the Hilton Grand ended on June 24, 2011, when she had reservations at the Lake Eve Resort (Resort) to join her extended family on the occasion of the Boss-Williams family reunion. On June 22, 2011, Petitioner traveled to the Resort to visit with her extended family who had arrived the previous day. When Petitioner entered the lobby of the Resort, she was met by two police officers and two women who did not immediately identify themselves. One of the police officers asked her if she was with the Boss-Williams family reunion. Petitioner inquired why she was being asked if she was with the family reunion, and was told that her party was being evicted. One of the two women with the officers, later identified as Lisa Catena, a Resort manager, asked Petitioner her name, and instructed her staff to cancel Petitioner’s reservation. Thereafter, Petitioner made several calls to members of her extended family to inform them of this turn of events. She first called her sister, Boniris McNeal, who was not on-property at the time, informed her of the eviction, and told her to return to the Resort. Next, Petitioner called her cousin, Denise Austin, who was also off-property at the time, informed her of the eviction, and told her to return to the Resort. Petitioner spent the next several hours in the lobby of the Resort talking with various family members as they returned to the Resort, or came through the lobby from other parts of the Resort, and were told they were being evicted, and waiting with family members while Resort staff worked to reverse credit-card charges and refund monies paid for room reservations. During this time period, Petitioner observed the two police officers, Ms. Catena, and the other unidentified woman, as they approached each African-American person who entered the lobby and asked whether they were with the Boss-Williams reunion. Petitioner observed that the police officers and Resort managers did not stop any non-African-American persons. Petitioner contacted a Westgate resort property in Orlando and was able to secure rooms for the family members who were evicted from the Resort. Respondent provided Petitioner no reason for canceling her Resort reservation and evicting her family from the premises. Petitioner filed a Complaint of Discrimination with the Commission on January 3, 2014. The Complaint alleges that the most recent date of discrimination was June 22, 2011. In a related case, the undersigned has found that some members of Petitioner’s family timely filed complaints of discrimination related to and arising out of the same incidents as those alleged by Petitioner. See Harrington v. Eve Management, Inc., Case No. 14-0029 (Fla. DOAH May 28, 2014). The undersigned, sua sponte, officially recognizes the Recommended Order in that matter, pursuant to Florida Administrative Code Rule 28-106.213(6).
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 Petitioner Denise Strickland; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 24th day of June, 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 24th day of June, 2014.
The Issue Whether Petitioner, Francesca Thomas, was subject to an unlawful employment practice by Respondent, SMA Behavioral Health, Inc., based on her alleged handicap/disability in violation of the Florida Civil Rights Act, section 760.01, Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a Family Intensive Therapeutic Team (FITT) counselor for Respondent. She provides substance abuse and mental health counseling with the goal of reuniting her clients with their children. Petitioner has worked for Respondent for 15 years, and was described by one of her supervisors as “professional.” During the course of her employment with Respondent, Petitioner has received multiple promotions, presumably indicative of the quality of her work for Respondent. FITT counselors are responsible for providing counseling services to 10 to 12 clients that are referred by child welfare. The program is designed for FITT counselors to see their clients at the clients’ homes or out in the community. Respondent provides a laptop and cell phone for each FITT counselor for use in the field. FITT counselors rely upon electronic medical records and use their laptops to communicate with clients and manage their caseloads. Occasionally there are some hard copy documents used by the FITT counselors, but Respondent has policies and procedures in place to manage the security of these documents. Hard copy documents are required to be secured in locked bags or in the trunks of the FITT counselor’s cars. All of the progress notes that FITT counselors prepare are paperless. Additionally, the discharge notes, communications, and child welfare records are paperless. Over the course of a case, the majority of the documents are paperless. FITT counselors only have to come into the office if they have meetings with their supervisor or have documents in hard copy format. If they so choose, they can work on their case notes and communicate with clients from the office. They can also connect to the internet, work on their case notes, and communicate with clients remotely. In all, 70 to 80 percent of Petitioner’s work is performed outside of the office. Some of the FITT counselors perform the majority of their work at home. This is accomplished via their company issued laptop and WiFi delivered through their phone. Respondent has a Virtual Private Network (VPN) system that allows FITT counselors to work remotely and securely from their homes. Petitioner’s position was designed so she would not be tethered to a desk. As noted, she has the ability to connect to WiFi through a WiFi hotspot that is available on the phones issued by Respondent, which essentially allows her to work from anywhere. Prior to February 2018, the FITT counselor’s offices were located in the Cantley Center, in Daytona Beach, Florida. The work stations provided to the counselors at this location were very small offices (approximately 8 ft. by 8 ft.) with doors, as opposed to work cubicles. Some FITT counselors shared offices with other counselors, while some counselors, including Petitioner, had their own offices. The workspace was described by one counselor as a “cave” since it was located in the lower level of the building, there were no windows, and the small offices had low ceilings. For reasons not reflected in this record, sometime in early 2018 the decision was made to relocate Respondent’s operations to a new location. On or around February 27, 2018, Petitioner went to Respondent’s new offices to examine where she would be working. Petitioner’s department was one of the first to move into the new building. At the new location, the FITT counselors were to be assigned to cubicles, rather than offices. Although Petitioner’s previous office was very small, when Petitioner saw her new work space she shouted loudly “I can’t do this. I can’t do this,” and began suffering a panic attack. When Petitioner then requested that she be assigned to a different cubicle, based upon her seniority, her supervisor informed her that all the work spaces were already assigned by the Program Management and Facilities departments. In November 2017, Petitioner informed Respondent that she occasionally suffers from panic attacks. However, it was not until March 1, 2018, that Petitioner told her supervisors that she was claustrophobic. Her supervisors told her that they were unaware of her being claustrophobic and did not recall her ever saying that she was claustrophobic. Petitioner received a Performance Notice due to her exchange with her supervisors on February 27, 2018. As a consequence of this Performance Notice, Petitioner was placed on 90 days probation. On March 14, 2018, Petitioner asked to schedule a meeting with her supervisor to discuss her Performance Notice. She did not ask about a reasonable accommodation in her March 14th email to her supervisor, BranShonda Levine. On March 19, 2018, Petitioner again exchanged emails with Ms. Levine regarding a meeting to discuss her Performance Notice. On that same date, Petitioner also exchanged emails with Jennifer Stephenson, senior director of Outpatient Services, that were related to her Performance Notice. Ms. Stephenson understood Petitioner’s email to only be focused on appealing the issuance of the Performance Notice that Petitioner received. In the e-mail exchange, Petitioner indicated she wanted to meet with Ms. Stephenson and Deborah Loyd, Respondent’s vice president of Human Resources, to discuss her Performance Notice. Ms. Stephenson scheduled a meeting with Ms. Loyd in response to Petitioner’s March 19th email regarding her Performance Notice. Petitioner submitted a rebuttal to her Performance Notice on March 20, 2018, stating that she did not feel that the issuance of the Performance Notice was warranted. At a meeting on March 20 or 21, 2018, Petitioner expressed for the first time that she may need a reasonable accommodation. At this meeting, Ms. Stephenson learned for the first time that Petitioner claimed she has claustrophobia. Likewise, Ms. Stephenson did not know Petitioner was seeking a reasonable accommodation until this meeting. In a follow-up email dated March 21, 2018, Ms. Stephenson recommended Petitioner work with Respondent’s Human Resources Department regarding her claustrophobia and panic attacks. Ms. Stephenson acknowledged that if they were documented conditions, Respondent would make a reasonable accommodation for Petitioner. As of March 30, 2018, Petitioner remained focused on the two disciplinary actions1/ she had received in early 2018, and her request to have those reviewed and removed from her personnel file. As of this date, Petitioner was working in her assigned cubicle, and made no mention of having any issue working in the cubicle. Respondent has adopted Policy HR102, titled “Accommodation of Individuals with Disabilities or with Communications Barriers.” Consistent with this policy, if an employee needs an accommodation, they must participate in the interactive process with Respondent, including filling out and submitting the American with Disabilities Act (ADA) Accommodation Questionnaire. The employee and their physician are required to document the disability and accommodation request. Respondent then reviews the completed interactive process paperwork and schedules a meeting to discuss the same with the employee. This is to determine the accommodation that is being requested and if Respondent is able to provide the requested accommodation, or whether other alternatives could be provided. Petitioner submitted her reasonable accommodation paperwork to Respondent on April 25, 2018. Petitioner’s reasonable accommodation paperwork stated that she did not have an impairment that substantially limited a major life activity as compared to most people in the general population. However, Petitioner did state that her impairment “limits patient breathing, talking, thinking.” During the interactive process, Petitioner requested a more open space to avoid panic attacks that might occur due to claustrophobia. On May 14, 2018, Petitioner submitted a letter solely focused on the Performance Notice relating to her exchange with her supervisors on February 27, 2018. No mention was made of Petitioner being unable to work successfully in her assigned cubicle. Respondent attempted to schedule a meeting with Petitioner on May 30, 2018, to discuss her request for a reasonable accommodation. However, on May 31, 2018, Petitioner rescheduled the meeting because she injured her eye. On June 1, 2018, Petitioner rescheduled the meeting again, this time to take place on June 4, 2018. The purpose of the meeting would be to discuss Petitioner’s interactive process paperwork. Prior to the June 4, 2018 meeting, Ms. Loyd met with Ms. Stephenson to review what options would be available to meet Petitioner’s request for an accommodation. The June 4, 2018 meeting was held as scheduled and was attended by Petitioner, Ms. Stephenson, and Ms. Loyd. At the meeting, Ms. Loyd and Ms. Stephenson discussed the accommodation request with Petitioner and advised her of what accommodations Respondent would be able to offer her. Specifically, they informed Petitioner she could work from home or use the conference room in her immediate work area. As to Petitioner’s desire to be reassigned to a different cubicle or an office, Ms. Stephenson and Ms. Loyd explained that the other cubicles were already previously assigned, and that other departments were utilizing the offices in the building. Moreover, the physical offices in the building were not a part of Petitioner’s department. In an e-mail Petitioner sent to Ms. Loyd following their meeting, Petitioner inquired as to whether the wall on the right side, and the front wall of her assigned cubicle, could be taken down. This option was explored by Respondent and it was determined that the walls at issue could not be moved or reconfigured. Petitioner insisted that she should be permitted to use offices in the building instead of being permitted to work from home or in a conference room. Accordingly, Petitioner did not accept either of the accommodations offered by Respondent and ceased engaging in the interactive process with Respondent. Petitioner would not have been subject to increased duties if she chose to work from home. Respondent also examined whether the cubicle walls could be removed. However, it was not feasible to reconfigure or move the cubicle walls. After the meeting, Petitioner emailed Ms. Loyd but did not state that she believed the conference room accommodation, or working from home, would be inappropriate. At hearing, Ms. Stephenson could not recall Petitioner ever speaking with her again about additional accommodation requests. Respondent reasonably determined that the nearby conference room would be an open space for Petitioner to work, thereby reducing the likelihood that Petitioner would suffer from claustrophobia. Petitioner agreed the conference room Respondent offered to her is an open space. As noted previously, it is a common practice for counselors who work in the field to work from home, as well as from other locations. The FITT counselor’s hard copy files are in filing cabinets that are in a separate area away from the cubicles. Therefore, Petitioner would not need to store her files in the conference room. Petitioner worked in the original cubicle she was assigned for seven months. In November 2018, an employee who worked out of a different cubicle left the company and Respondent offered Petitioner a new cubicle. Petitioner accepted the same, and as of the date of the hearing Petitioner continues to be employed by Respondent.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Francesca Thomas, did not prove that Respondent, SMA Behavioral Health, Inc., committed an unlawful employment practice against her and dismiss her Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 18th day of December, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2019.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against by Respondent in employment through sexual harassment; because of her age, sex, marital status, and handicap; and in retaliation for complaints made by her against management.
Findings Of Fact 1. At the time in issue, the facility in question in this hearing was owned by HP Tampa, LC (HP Tampa) and was operated by Mr. James Rogers under a contract with his management company. After Mr. Rogers' contract was terminated, the facility was operated by Cornerstone Hospitality Group Cornerstone. Management 's duties included employee relations. As manager, Mr. Rogers had almost free rein to hire and fire and was responsible for employee policies. HP Tampa did not oversee these details. 2. Petitioner had been employed at the Respondent's property in Tampa for approximately 18 years when she was terminated on November 27, 1995. During the period of her employment, Petitioner was recognized at least once as employee of the year and was asked to take over management of the facility's bar, which she initially refused because she had several children to raise. Finally, after six years, she took the position and served as manager of the hotel bar, the Silver Dollar Saloon, for the last 12 of the 18 years she worked there. Petitioner contends she worked without any problems until Mr. Lloyd was hired in April 1995, and asserts she has never filed a discrimination complaint against any employer until this one. 3, Mr. Lloyd was hired as comptroller at the facility in April 1995. It was announced that his job was to get control of the audits of the operation, and he was to work with the Petitioner to implement controls to reduce costs in the lounge. Petitioner understood, however, that she was to continue to report directly to the Manager, Mr. Rogers, and that she was on a parallel level of authority to Mr. Lloyd. 4. Petitioner alleges that during June and July 1995, Mr. Lloyd began making sexually oriented comments to her. He mentioned her breasts -- jokingly, she believed because she was so slim at the time and had small breasts. Petitioner was not amused by Mr. Lloyd's attempts at humor and complained to him directly. 5. Petitioner also claims that Mr. Lloyd began to drink More and more while on the job. On one occasion, she contends, he came into the liquor room while she was there and grabbed her from the back. She resisted and, afterwards, complained to Mr. Rogers and his assistant both orally and in writing. She received no feedback. 6. According to Petitioner, sometime during either July or August 1995, Mr. Lloyd called her into his office to go over the bar's operating figures. After a period of business conversation, Mr. Lloyd reportedly stated it was a shame she was married. Petitioner demurred to that comment, and when she got up to leave, she claims Mr. Lloyd grabbed her and kissed her. When she slapped him in response, he replied that he always got what he wanted. After this incident, Petitioner wrote another memo to Mr. Rogers and asked to see him. He finally did see her quite a while later, she claims, but treated the incident lightly. She wanted him to speak to Mr. Lloyd with her because she was uneasy working with him, but this did not happen. 7. On another occasion, when she was supposed to go to Las Vegas with her husband, she gave up her trip to work, letting her husband go by himself. While her husband was gone, she contends, Mr. Lloyd asked her to meet him at an off-premises location, a request which she refused. At this point, she also told him what she thought of him. She also claims he had touched her on two. occasions, which resulted in a heated argument between them. 8. On November 3, 1995, an employee of the bar came to Ms. Cremeens and advised her that Mr. Lloyd had said that she, the reporter, and another employee would be terminated. Ms. Cremeens confronted Mr. Lloyd and asked him by what right he had told employees under her supervision they would be terminated. Mr. Lloyd became loud and threatening, which scared Ms. Cremeens. She immediately tried to call Mr. Rogers, but he was out of town. As a result, she left messages for Mr. Rogers and his assistant that she wanted to see them as soon as possible. 9. Ms. Cremeens finally got to talk with Mr. Rogers with his assistant present and told him how frightened of Mr. Lloyd she was. She told Mr. Rogers she would try to get a restraining order against Mr. Lloyd and at that point, Mr. Rogers told her he would talk to Mr. Lloyd and get back to her. Mr. Rogers did not do so, however, until he found out that Mr: Cremeens' husband had tried to call mr. Morris, Mr. Rogers' boss. Ms. Cremeens also told Mr. Rogers she would talk to Mr. Morris about what was going on even if it cost her her job. 10. Some time thereafter, Ms. Cremeens was called in and terminated. She was told at the time her termination was necessitated because of a drop in business and because, due to the effect on the working atmosphere caused by the dissention between her and Mr. Lloyd, one of them had to go. At that time, Mr. Rogers told Ms. Cremeens that she would receive four weeks vacation pay, but she never got it. Her termination threw her into a state of shock as a result of which she became extremely depressed and cut herself off from family and friends. She claims she has never been right since. The irony of this situation, she contends, is the fact that in January 1995, she was offered a job at the High Point Resort. At that time, Mr. Rogers came to her and begged her not to leave because she was doing such an excellent job. If this is the case, she queries, why was she let go for cause less than a year later? 11. Ms. Cremeens has sought other employment since her termination and worked part time as a waitress and bartender. However, she was let go after a short while because of mutual dissatisfaction. She claims she has never been able to bring herself back to the status she occupied while manager of the bar at the Days Inn. She has been to counseling in an effort to help herself, but she finally realized that the only way to get this trauma out of her system was to file her complaint. As it is, it has taken four years for the state to reach a determination of cause. Much of this time, she believes, was due to the failure of the Respondent to provide the information required by the Commission. 12. The Respondent sought to make much of the fact that Ms. Cremeens has been married four times and filed bankruptcy with her third husband in 1993. Her fourth husband filed bankruptcy in 1999, but she was not a party to that action. Neither her multiple marriages nor her bankruptcy have been shown to have any bearing on the instant issue, however, and are disregarded. 13. Petitioner admits, however, to having failed to report all tips she received when she manned the service bar from time to time. The facility had a requirement that all bar employees report tips for consolidation and sharing and contends Petitioner's failure to do this is identified as a basis for her termination. 14. Mr. Rogers was manager of the facility in question during the entire time in question. He contends that the basis for Petitioner's termination was a continuing decline in the profitability of the bar operation under her Management from a significant profit in 1991 to a loss of $1,048 in 1995. Ms. Cremeens was already working as bar Manager at the hotel when Mr. Rogers began overall management. The Silver Dollar was a local bar primarily for local people which was also used by hotel patrons. The bands, which Played in the evening, were mostly country and western. 15. As general manager, Mr. Rogers had as Support staff an assistant Manager, a comptroller, a beverage/lounge Manager (Ms. Cremeens), a restaurant manager, an executive housekeeper, a chief engineer, and a director of sales and marketing. Each of those department heads had a staff. The department heads were Salaried, but the Majority of the employees were hourly employees. 16. Petitioner was the only salaried lounge employee. Her staff included bartenders, Servers, and bar backs, who were hourly employees and also received tips. Tips were to be reported to the comptroller for tax purposes, and, though Petitioner was a salaried employee, she also received tips which should have been reported. As was noted previously, Petitioner admitted she did not always do this. The band was contracted for and band members were not hotel employees. 17. Because of a downturn in revenues and profits over the years starting in 1990, cutbacks in all departments (not just the lounge) were Mandated by a memorandum dated December 20, 1993, Mr. Lloyd was hired as comptroller by mr. Rogers sometime in 1995 because profits at the hotel, including the lounge, were declining so rapidly a real potential for closure of the hotel existed. Mr. Lloyd had a degree in auditing and was a Certified Public Accountant who had experience in hotel and restaurant Management. 18. Revenues in all departments of the hotel were declining, but not as badly as in the lounge upon which revenues management relied for a large portion of the cash flow. The lounge had previously been a "cash cow" for many years, and when the revenues declined, the hotel's owners started putting pressure on Mr. Rogers. His job was at stake, and since he was paid a portion of profits, so was his income. 19. Historically, the lounge manager had the authority to hire and fire employees, to schedule employee work hours, to supervise employees and bartending, to hire all bands and entertainment, to purchase all liquor and bar supplies, to prepare for all inspections, to provide for bar security, and to insure harmonious guest relations. 20. Petitioner, as lounge manager, had total responsibility for the lounge operation, including financial responsibility for that profit center, and to insure the facility operated within budget constraints for entertainment, advertising, and drinks. She was to report to Mr. Lloyd as comptroller on accounting matters, and Mr. Rogers asked Mr. Lloyd to work with Petitioner to bring lounge expenses under control and to increase sales. According to Mr. Rogers such a relationship is common in the industry. 21. At the time Mr. Rogers hired Mr. Lloyd, he claims he had some personal concerns about the hotel operation. Because of declining sales and profits, particularly in the lounge, and as the result of the negative reports of comparison shoppers, he wanted the lounge operation looked at with regard to service levels (were servers attentive and courteous?), portion control, and accounting for sales to tell him how the customers were being served. He also claims he had heard complaints of rudeness and lack of courtesy by employees, and most of these reports had been passed on to Petitioner. Though they had had an open communication for nine years, he found that usually on negative reports Petitioner denied the problem or became defensive. 22. Nonetheless, Mr. Rogers instructed Mr. Lloyd to work with Petitioner and come up with proposed controls in the bar to decrease expenses. Mr. Lloyd came up with the controls and he and Mr. Rogers met with Petitioner about them. Some of Mr. Lloyd's proposals were not acceptable to Petitioner. One of these was the proposal to close the service bar, which was where Petitioner often worked and from which she derived tips. Mr. Lloyd wanted to close it because of the inability to control what went on there. The proposals were put into effect, but even so, there was little improvement in the operation. Mr. Lloyd wrote a memorandum to Mr. Rogers to this effect on November 1, 1995, and sometime after receiving it, Mr. Rogers made, he 10 claims, a business decision to terminate Petitioner for her failure to perform adequately and to implement proposed internal controls and increase profits. 23. According to Mr. Rogers, Petitioner assumed a proprietary interest in the lounge operation. She had built up profits during the late 1980's and the early 1990's, but from 1993 on, business dropped. He claims he gave her five years to turn the operation around and make it profitable again, but she failed to do so, and he considered letting her go even before Mr. Lloyd was hired. In addition, her salary as bar manager was based on her prior performance, and she was not performing up to that level. Therefore, he believed he could save money by terminating her and having a bartender do the work. After Petitioner was terminated, another bar manager was not hired. Instead, one of the bartenders was promoted to head bartender, with a slight hourly wage increase, and was assigned some of Petitioner's former duties. 24. Concerning the complaints allegedly made by Ms. Cremeens regarding sexual harassment by Mr. Lloyd, Mr. Rogers contends he never received any complaints from her about it or reports from Petitioner or anyone else that Mr. Lloyd was harassing her or had asked her out. He admits that she complained to him that she was afraid of Mr. Lloyd because of an incident which occurred in the kitchen. On the whole, there is insufficient evidence to support finding that Ms. Cremeens 11 complained to Mr. Rogers about Mr. Lloyd sexually harassing her, and it is so found. on the other hand, there is sample evidence that she complained to Mr. Rogers about Mr. Lloyd's rudeness, threats, and verbal abuse, but these do not constitute actionable misconduct in this forum. 25. With regard to the kitchen incident, both Petitioner and Mr. Lloyd came to mr. Rogers upset with each other. As he’ recalls, Petitioner came to see him first contending that she and Mr. Lloyd had had an argument and she was afraid of him due to his size and his temper. At the time, Mr. Rogers asked her if Mr. Lloyd had touched her and she said no. She indicated that Mr. Lloyd had started the altercation, but she admitted she took part. Mr. Rogers claims he took care of the incident, but apparently not to Petitioner's satisfaction. 26. It appeared to Mr. Rogers that Petitioner felt she owned the bar and could ignore instructions she didn't like. He recalls she complained about Mr. Lloyd constantly for various things, but he cannot recall it ever being for harassment or assault. In each case he claims he looked into her complaints and could not find any misdeeds by Mr. Lloyd. It was evident to Mr. Rogers that Petitioner wanted Mr. Lloyd out of the bar which she apparently felt was her territory. However, he also received complaints about Mr. Lloyd from the director of sales and Marketing and from his own son, who has a learning disability. Both indicated that mr. Lloyd yelled at them and was abrupt, but 12 neither complaint was of a sexual nature. Mr. Rogers received a total of four complaints about Mr. Lloyd, for each of which Mr. Lloyd was reprimanded. 27. Kristi Carroll, formerly administrative assistant to Mr. Rogers when he was manager of the Days Inn, worked there at the same time Mr. Lloyd did. At no time did she ever see Mr. Lloyd engage in any sexual misconduct on duty, nor did she ever hear any complaints of such even from Petitioner. She knows of no sexual advances by Mr. Lloyd to any hotel employee. There is evidence to the contrary, however. 28. When Mr. Rogers left the management of the hotel in early 1997, he claims he was not aware of Petitioner's complaint and was not made aware of it until January 2001. Petitioner worked under his supervision for approximately nine years and was equal to Mr. Lloyd in the chain of command. He considers the two memoranda which Mr. Lloyd wrote concerning her performance to be warnings to her but neither was placed in her personnel record after she signed acknowledgement of it. , . 29. Mr. Rogers admits that during the time in issue, 1991 through 1995, room income and beverage income both dropped radically. He includes in the reasons therefor in the bar area as being increased competition; the cessation of band entertainment, a decision of his; a lack of air conditioning; and crime in the immediate area. All these factors contributed to a reduction in patronage, but he considers Petitioner's performance 13 to be the Major cause. In 1994, due to a decline in restaurant business, mr. Rogers considered Closing the restaurant and making the whole area a lounge however, he did not do so. 30. Ms. Carroll, while assistant general manager during 1995, looked into the causes of the lower hotel and lounge revenues, which had declined from good levels in 1993 and 1994, Her investigation showed that increased competition from new Ybor City clubs substantially impacted revenue in the Silver Dollar. Ms. Carroll immediately noticed tension between Mr. Lloyd and the Petitioner due to Mr. Lloyd's new Procedures and his interference with Petitioner's authority. He was given input into areas wherein Petitioner had previously had free reign, and this was obviously difficult for Petitioner to accept. 31. Mr. Rogers ultimately concluded that Petitioner might have to be terminated, When it finally occurred, Petitioner's removal was based on a financial decision that a lounge Manager was not needed. After a thorough review of lounge advertising, entertainment, the need for a back bar, and the size of the staff, it was deemed beneficial to replace the salaried Manager position with a current bartender paid hourly. ms. Carroll admits that management knew the decline in income in the bar was not due solely to Petitioner's Management. There was a definite increase in competition, and Petitioner's being laid off was a cost cutting decision. 32. At the time of Petitioner's removal, neither 14 Ms. Carroll nor mr. Rogers knew of Petitioner's complaint nor diq Petitioner's age play any part in the decision. Ms. Carroll 33. Ms. Carroll was present when Petitioner was terminated Mr. Rogers about vacation time. She cannot recall the Particulars of the discussion, however, but it is found that Petitioner was promised four weeks vacation time for which she was not compensated. 34. Ms. Carroll also substantiates Petitioner's claim that Mr. Lloyd was argumentative and abusive in his work relations with subordinate employees. She knew there was tension between Petitioner and mr. Lloyd and that Petitioner complained to Mr. Rogers, but she cannot recall the specific complaints. She is of the Opinion that mr. Lloyd had a temper and is aware that Mr. Lloyd had altercations with several staff members. Notwithstanding all the bad language between Petitioner and Mr. Lloyd, Ms. Carroll cannot recall ever hearing Petitioner use foul language or curse customers. 35. Several employees of the lounge were aware of the conduct of both Petitioner and mr. Lloyd. Several claimed Mr. Lloyd was loud and abusive in language to employees. Several i5 recalled he made a Sexually oriented comment regarding at least one female employee. Further it is clear that Mr. Lloyd dated at least two female employees of the lounge, one of whom was made head bartender when Petitioner was terminated. 36. On the other hand, while at least one employee described Petitioner as seductive and flirtatious, the majority claimed otherwise, and while her detractors described her as loud and abusive, the Majority of her employees did not. At no time did any of the lounge employees, save those aligned with Mr. Lloyd, describe Petitioner as having lost interest in the lounge operation before she was terminated. 37. According to Sadie Strickland, a long-time co-worker of Petitioner in the lounge, Mr. Lloyd would talk to lounge employees about Petitioner and her performance and he espoused opinions and suggestions which he wanted implemented in the bar without seeking or obtaining Petitioner's participation. Nevertheless, Petitioner remained supportive. When on one occasion Ms. Strickland threatened to quit because of problems with Anna-Marie Genco, another lounge employee, Petitioner talked Anna-Marie out of it. Petitioner was, in her opinion, a good employer/manager who gave her best without any support from upper Management. Rather than help, Mr. Rogers took away the bar's advertising budget and refused to act on Petitioner's suggestions. 38. To be sure, there was tension between Petitioner and 16 Mr. Lloyd and between Petitioner and some other lounge employees. For example, on November 8, 1995, Petitioner is alleged to have called in Ms. Carla Genco and her sister, Anna-Marie, and yelled at them because of their refusal to talk to Ms. Strickland. on that occasion, Petitioner is alleged to have said she'd like to stomp Anna-Marie's "f---ing butt." As a result, Ms. Genco prepared a letter to Mr. Rogers recounting the incident. Ms. Genco does not know what, if any, action was taken, but she enjoyed working at the hotel because both Mr. Lloyd and Mr. Rogers were good to her. 39. Mr. Lloyd's account of the situation differs substantially from that of the Petitioner. When he first started working at the hotel as comptroller, he was instructed to initiate internal controls in several areas, one of which was the bar. Before doing anything, he analyzed the situation for about two and a half months and came up with proposals which he coordinated with Mr. Rogers. 40. Mr. Lloyd found a lack in internal controls. Bar stock was not being maintained appropriately, inventory was too high, requisitions were not being done on a regular basis, bar tabs were not being rung up timely, and guest checks were not being accounted for. He also felt there was not enough business to justify keeping the service bar open. Labor costs were too high relating to sales, and costs were higher than industry standards due to the pouring of too many free drinks. 17 41. Mr. Lloyd gave a copy of his analysis to both Mr. Rogers and the Petitioner, and discussed his analysis with Ms. Cremeens. Her reaction to the memo was that she would try to comply with the suggestions. Somewhat later, in November 1995, Mr. Lloyd prepared a follow-up memorandum, which he gave to Mr. Rogers and which pointed out those suggestions which were not being followed by Petitioner and identified additional deficiencies for review. The memo identified a continuing problem with free drinks; a failure to ring up sales at the time of sale; a failure to monitor promotion drinks; a failure to properly punch time cards; and a failure to properly declare tips. 42. Mr. Lloyd's analysis of Petitioner's performance indicated to him that she had lost interest in her job. This conclusion was based on his determination that she had failed to provide relevant cost information as required; failed to be on site for an appropriate time on busy nights; and demonstrated a temper and used foul language at inappropriate times. He observed some instances wherein Petitioner would get mad at people working behind the bar and would start yelling and swearing at them. Other similar instances were reported to him. This is not supported by the majority of lounge employees, however. 43. When Petitioner was terminated in November, 1995, she 18 was not replaced with a salaried bar manager. Instead a position was developed as head bartender for operations, and Mr. Lloyd assumed responsibility for inventory and cash payments. Anna Genko was promoted to head bartender on an hourly wage basis as a joint decision of Mr. Rogers, the assistant Manager, and Mr. Lloyd. According to Mr. Lloyd, there was no immediate change in profitability as a result of these changes, but over the succeeding year, there was a considerable increase which he claims was due to the implementation of innovations designed to attract customers. 44. Mr. Lloyd contends that Petitioner's age had nothing to do with her termination. He repeatedly asserted that the decision to terminate Petitioner was based on her performance. He claims to have discussed the problem areas with her and explained her weaknesses. However, he contends, she failed to modify her performance to comply with the directives of management. 45. Mr. Lloyd also denies having sexually harassed the Petitioner. He denies having suggested she meet him at another place while her husband was out of town. He denies having ever touched her or kissed her. He denies having told her he gets what he wants, and he denies ever having made a comment to her about her breasts. He also denies drinking on the property though the evidence indicates he did. Mr. Lloyd had a very selective memory at the hearing, however, he does admit to having 19 a temper and to having yelled at Petitioner from time to time. Taken as a whole, however, there is insufficient evidence of record to support a conclusion that Mr. Lloyd sexually harassed Ms. Cremeens. To be sure, he did not always behave like a gentleman toward her, but it cannot be said his conduct constituted sexual harassment, and it is so found. 46. Once Petitioner was terminated, she became despondent and withdrawn and pushed family and friends away. Petitioner was terminated on November 27, 1995, but did not file her claim for discrimination until September 1996, almost ten months later. She delayed filing her complaint because she was in shock and embarrassed. She lost self-esteem and self-confidence and was afraid her marriage would be jeopardized if her husband found out the particulars of the termination. 47. Dr. Glenn D. King, a clinical psychologist whose specialty is forensic psychology, reviewed the materials relevant to Petitioner's claim against HP Tampa and did his own personal evaluation of the Petitioner relating to her claim of psychological harm resulting from her termination. 48. One of Dr. King's major opinions was that Petitioner had a longstanding psychological disorder stemming from childhood resulting in demonstrated histrionics, flirtatiousness, and a misperception of the motives of others. She has had an extraordinary number of chaotic events throughout her life that makes her no different after her discharge than before. Her 20 previous psychiatric history is lengthy reflecting professional mental health care at age 28 because of physical, emotional, and sexual abuse by her husband which caused her to leave home and Move to Tampa. The significance of this is that the psychological difficulties which she claims were caused by her discharge existed years before this incident and have resulted in her being in counseling for years prior to the termination. Her medical records indicate she has been taking psychotropic medications for years. 49. Dr. King also notes that though Petitioner mentioned her termination in the first counseling session she had after that incident, the major thrust of her complaints dealt with Marriage and family problems. 50. After Petitioner was terminated at the Silver dollar, she got a job at another lounge for about two months earning $10 per hour before she was fired. She then took another job for eight months before being hired at a Golden Corral for two years. She was let go from that job in August 1997 and drew unemployment compensation at $100 per week for five months. She opened another lounge, Angel's Place, in October 1997. This position lasted only a short time, after which she went to work for Old JR's Steak House where she earned $400 per week from January 5, 1998 to March 1, 1998. She then worked for the Old Florida Pub in Naples for five months before starting at Target stores and is currently employed by Target Stores. 21 51. Petitioner is seeking back wages for the period from when she was terminated in 1995 to the present and for five years forward at the rate she was getting less what she earned in the interim. In addition to the sums she earned from the various jobs she held, she also sold off household goods and had between $30,000 and $40,000 in gambling income, a part of which went into the costs of opening Angel's Place. All of this income was reported to the IRS. 52. Petitioner also seeks payment of $50,000 which represents the equity in her home which was lost to foreclosure in 2000, almost five years after her termination by HP Tampa. Some time after her termination by HP Tampa, Petitioner was declared eligible on her husband's insurance, yet she seeks to have HP Tampa also pay for her medical insurance. 53. According to Melissa Mancini, human resources director for Cornerstone Hospitality Group, Petitioner was never an employee of Cornerstone, but her office prepared the response to the Commission on Human Relations regarding Petitioner's claim. It would appear that there was some confusion as to who was responsible for the response, but ultimately, the requested information was forthcoming. When the Petition for Relief was received, it was sent to the corporate office of Cornerstone because Cornerstone was handling the sale of the property. Cornerstone admits to no liability regarding Petitioner's claim. 22
Conclusions For Petitioner: Angel Cremeens, pro se 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 For Respondent: David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747
Recommendation Based on the foregoing Findings of Fact and Conclusions of 27 Law, it is recommended that the Florida Commission on Human Relations enter a Final Order reflecting a determination of No Cause regarding Petitioner's claim of discrimination and Petition for Relief. DONE AND ENTERED this & day of July, 2001, in eel Jha NOLD POLLOCK 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) 921-6947 www.doah.state.fl.us Tallahassee, Leon County, Fl Filed with the Clerk of the Division Administrative Hearings this be aay of July, 2001. COPIES FURNISHED: Angel Cremeens 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 28 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2017.
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to make an appearance at hearing.
Findings Of Fact On January 7, 2011, the undersigned issued the Initial Order in this case. Petitioner and Respondent responded to the Initial Order. On February 10, 2011, the undersigned issued a Notice of Hearing, scheduling the hearing for March 28, 2011. The Notice of Hearing was not returned as undeliverable to Petitioner. Indeed, Petitioner wrote and filed several letters regarding her upcoming hearing and case in general. On March 18, 2011, the hearing was convened as scheduled. After waiting 15 minutes, Petitioner did not appear at the hearing and did not contact the undersigned’s office regarding any problem with commencing the hearing as scheduled. Accordingly, no evidence to support Petitioner’s allegations was introduced at the hearing. Given this lack of evidence, 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 a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGR 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 15th day of April, 2011. COPIES FURNISHED: Gayle Wilburn 1006 East Johnson Avenue, #4 Pensacola, Florida 32514 Robert E. Larkin, Esquire Allen Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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
