The Issue Whether Respondent, Glenn Dorsey, Inc., d/b/a My Home Spot, is liable to Petitioner, Tamela Alisha Landrum, for employment discrimination in violation of the Florida Civil Rights Act of 1992 (“the Act”).
Findings Of Fact Respondent is a Florida corporation engaged in real estate property management which provides management services to homeowners’ associations (“HOA”), including managing the sale, lease, and maintenance of association property; organizing and staffing association board meetings; and enforcing association covenants and restrictions. Mr. Glenn Dorsey is Respondent’s owner. Petitioner is an African-American female and is a licensed Community Association Manager (“CAM”). Petitioner became employed by Respondent on May 23, 2016, as an Assistant HOA Manager.2/ Mr. Dorsey described Petitioner’s position as “the person responsible for how our communities appear.” She was handling contracted services such as pool maintenance, gate access, and landscaping “from writing the RFP, soliciting bids, comparing quotes to managing the vendor performance.” As her employer described, “A major portion of her job is managing the CCR [community covenants and restrictions] inspection schedule, performing the inspections and maintaining our database for CCR enforcement.” The description concludes that “Alisha is a licensed CAM and will soon be managing her own community association portfolio as the HOA Assistant Managers and Accounting Department are returned to full strength.” (emphasis added). According to Petitioner, she did not want to handle HOA board meetings, which occur in the evening and require the employee to stay for the duration of the meeting, which can be lengthy. In early September 2016, Petitioner was asked to cover an evening HOA meeting because Mr. Dorsey was double-booked for two different association meetings that evening. Petitioner was subsequently asked to cover additional evening HOA meetings. Between September 7, 2016, and August 22, 2017, Petitioner handled no less than 64 HOA regular and annual meetings for several different HOAs. On or about January 18, 2017, Mr. Dorsey transferred the responsibility for CCR inspections and enforcement to another employee. Petitioner complained that she was not compensated for working overtime to handle the HOA meetings. Petitioner repeatedly testified the company had no protocol for overtime. After-hour meetings created a personal hardship for Petitioner because they required her to incur additional childcare expenses. Apparently, a member of Petitioner’s family was initially providing childcare, but the arrangement broke down due to the inability to predict the length of HOA board and annual meetings. Petitioner testified that she verbally complained to both her direct supervisor and Mr. Dorsey about the hardship of after-hour duties and requested to be compensated with a salary increase and other benefits. Petitioner complained that her role and hours were changed significantly without any change in compensation. Mr. Dorsey scheduled a mandatory staff meeting for July 6, 2017, and included an agenda in the calendar invitation to staff. One of the agenda items is “meeting makeup time (next am come in late).” On August 16, 2017, Petitioner met with Mr. Dorsey and his assistant, Rachel Ward. At that meeting, they discussed renewal of her employment contract, and she addressed her concerns regarding her hours and compensation. Petitioner complained to Mr. Dorsey that she was not afforded a phone stipend, which was afforded to white managers, to compensate her for use of her personal cell phone for after-hour business. On August 18, 2017, Mr. Dorsey sent a letter to Petitioner “confirming” the August 16 meeting. In the letter, Mr. Dorsey acknowledged that Petitioner’s employment duties were “significantly different” than the duties she was hired for in May 2016. However, in the letter Mr. Dorsey justified the change in duties because of Petitioner’s poor performance of the original assigned duties, including estoppels, maintenance, and other administrative tasks, which he characterized “quickly became disorganized, delinquent, or incomplete.” Mr. Dorsey explained the change in duties as an attempt to “modify your role as to find a position in which you could succeed.” The letter concluded that Mr. Dorsey declined to change Petitioner’s compensation and benefits, or even enter into a new employment contract. Instead, Mr. Dorsey informed Petitioner that her employment would continue on a month-to-month basis, and that either party could terminate the agreement with 30 days’ notice. On August 21, 2017, Mr. Dorsey sent Petitioner the following electronic mail message: Alisha, Per your advisement today regarding your inability or decision not to attend HOA after-hour meetings, myHomeSpot.com will begin to cover those shifts without your participation effective immediately. Every other assistant is attending their portfolio meetings as this is a requirement of the position. We do not have a position at your rate of pay to provide you any extended exception. This is our advanced notice to you to terminate our employment arrangement on Oct. 14, 2017 as you are unable to meet the requirements of the current position. I provide you this date at the current pay rate to allow a smooth transition with someone who can perform the required duties, but, we can end with a 30-day notice to accommodate any changes if you notify us of this within 14 days from 8/22/17. On August 22, 2017, Petitioner sent Mr. Dorsey a letter which notified him she would no longer be available to work “beyond the published business hours” and requested she be returned to an 8:00 a.m. to 6:00 p.m. work schedule. However, the letter ended with notice of her immediate resignation. Petitioner’s Allegations In her Petition, Petitioner alleges that her change in job duties and hours, without appropriate compensation, was based upon her sex and race. She complains that she was not given a phone stipend afforded to white managers for use of their personal cell phones after business hours, and was forced to work after hours without overtime pay based on her race. Further, Petitioner alleges that Respondent unlawfully retaliated against her by responding to her complaints “with a write-up and termination notice.” Disparate Treatment Petitioner testified generally that she was paid less than, or denied benefits afforded to, white managers. Petitioner introduced no evidence on which to base a finding of the race of any employee, other than herself, in order to compare salary and benefit information. The record contains no documentation of which employees, if any, received a phone stipend. Absent this information, the undersigned cannot make a factual determination that Petitioner was denied the stipend which was afforded to male employees. Between the dates of May 23, 2016, and June 30, 2017 (slightly less than one month before her termination), Petitioner received the second highest amount of total wages of all Respondent’s employees during that timeframe. Petitioner received a total of $37,377.55 based on 2,051.25 total hours worked and 84.61 “absence hours.” An employee identified as AJ Ward was the only employee with higher total wages at $49,032.66. During that period, Petitioner worked fewer hours than employee Ward and incurred more “absence pay” than employee Ward. Petitioner further alleged that Mr. Dorsey manipulated her time entries in the company time management system, thereby artificially reducing her hours worked. The screenshots of time entries introduced by Petitioner are not sufficient evidence to support that allegation. Retaliation Only two days elapsed between Petitioner’s meeting with Mr. Dorsey, at which she voiced her concerns about uncompensated overtime and use of her personal cell phone after hours, and Mr. Dorsey’s letter giving Petitioner “advance notice” of her termination. Number of Employees The number of Respondent’s employees is a material issue in dispute. Respondent introduced its Department of Revenue Employer Quarterly Report (Form RT-6) for three separate quarters. For the quarter ending June 30, 2016, Respondent reported 15 employees in April and May 2016, and 14 employees in June 2016. For the quarter ending December 31, 2016, Respondent reported 13 employees in October, November, and December 2016. For the quarter ending March 31, 2017, the report identifies 15 employees in January, 14 in February, and 13 in March 2017. Respondent introduced a payroll details report for the pay periods between January 1 and August 31, 2017. The details report identifies only five employees. Petitioner did not challenge the reliability of the documents. Instead Petitioner argued that Respondent employed more than 15 employees when it was fully staffed. The evidence does not support a finding that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks during either 2016 or 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 14th day of February, 2019, 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 14th day of February, 2019.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 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
The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD 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) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent denied Petitioner access to a public accommodation on the basis of her disability in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on April 2, 2009, that reasonable cause exists to believe that Respondent denied Petitioner access to a public accommodation on the basis of her disability. Respondent requested a hearing, and the Department referred the matter to DOAH. Several facts are undisputed. Petitioner is a disabled female confined to a wheel chair. Mr. Chris Maganias is the owner and operator of the respondent company. The principal business of the company is the operation of a skating rink in Pinellas Park, Florida. Petitioner did not present a prima facie case of denial of access to a public accommodation. After the representative for Petitioner was placed under oath, the representative stated the issue that she was there to resolve, but testified to no substantive matters or other evidence. Her testimony lasted less than three minutes. There was no cross-examination. Petitioner did not testify. After excusing Petitioner's representative from her oath, the ALJ asked Petitioner if she wished to testify, and Petitioner stated that she did not want to testify. Petitioner's lone exhibit is a two-page affidavit that lists the allegations which make up the complaint against Respondent. However, the affidavit does not explain or supplement competent and substantial testimony, or other evidence, of the representative or Petitioner at the hearing. This is a de novo hearing and not an appellate review of a determination previously made by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DOAH enter a final order no later than February 3, 2010, pursuant to Section 70-77(g)(13) of the Code, finding Respondent not guilty of the allegations in the complaint. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of December, 2009. COPIES FURNISHED: Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Melissa Cook c/o Eleanor Cook Johnson 15047 Georgey Boulevard Clearwater, Florida 33760 Peter Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Chris Maganias Astro Skate Pinellas Park, LLC 10001 66th Street North Pinellas Park, Florida 33782
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by E. Gary Early, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Daytona Beach Cycles, LLC d/b/a Indian Motorcycle of Daytona, be granted a license to sell motorcycles manufactured by Victory (VICO) at 420 North Beach Street, Daytona Beach (Volusia County), Florida 32114, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed March 8, 2012 9:15 AM Division of Administrative Hearings DONE AND ORDERED this Io day of March, 2012, in Tallahassee, Leon County, J “Baker Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this Oy day of March, 2012. 2 Pobias Vinegek Nalini Vinayak, Dealer Kicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andrew Pallemaerts Volusia Motorsports, Inc. 1701 State Road 44 New Smyrna Beach, Florida 32168 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue to be determined is whether Petitioner proved that Respondent, SolarTech Universal, LLC ("SolarTech"), discriminated against him on the basis of Petitioner's race, national origin, age, or disability in violation of section 760.10, Florida Statutes (2020).
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of relevant and material fact: Petitioner was employed by Respondent. He worked on the production line, working at different stations, assembling various components of solar panel systems or related equipment. 2 At the beginning of the hearing, Respondent represented that it would order the hearing transcript. Respondent later filed a request to dispense with ordering the transcript, due to the fact that it could not afford the transcript. A telephonic hearing was held to discuss the request. Respondent again asserted it could not afford the transcript. When asked if he wanted to order the transcript, Petitioner disclosed, essentially, that he was also unable to afford the hearing transcript. The undersigned was careful to explain to both parties that if no transcript was ordered, there would be no official hearing transcript and the undersigned would rely upon his notes, his recollection of the evidence, and the hearing exhibits. The On March 22, 2019, Petitioner voluntarily resigned from his employment with Respondent. His exit interview was performed that same day and the exit forms he signed contained no mention of discrimination of any kind. Significantly, Petitioner never filed any verbal or written complaints of discrimination during his employment at SolarTech. Apparently, Petitioner had some sort of physical disability, but offered no detailed or helpful testimony to explain the nature, scope, or extent of his disability. Based on the limited evidence and the reasonable inferences from the evidence, Petitioner's disability involved some sort of unexplained vision impairment or limitation. There was no medical evidence, documentation, or certifications offered to verify or describe his disability or condition. The narrative testimony presented by Petitioner regarding his employment problems or issues was brief, indistinct, and vague. Petitioner's voluntary resignation--as best as could be determined by the undersigned--had something to do with a report that was filed, which involved Petitioner's alleged sexual misconduct against a female employee by the name of Danita Jackson ("Jackson"). Petitioner claimed that the report was false. Petitioner said he quit because he was "going through all those issues." Petitioner added that another reason he quit was because the company intended to, or did, use him, and two other black employees, as "modern slaves" for only low pay. Petitioner offered no documents during his presentation. When asked by the undersigned if he had any documents to offer during his case-in-chief, he responded that the documents "he needed" were "not here." Essentially, this was the sum and substance of Petitioner's brief evidentiary presentation. undersigned reluctantly agreed not to require Respondent to order the transcript, and entered an Order to that effect. As a result, there is no existing transcript of the hearing. The undersigned finds that Petitioner failed to establish a prima facie case of discrimination or retaliation of any sort at the hearing. Despite the brief and unpersuasive presentation by Petitioner, Respondent called two witnesses and offered a variety of documents to explain its position in response to the disjointed and imprecise "claims" presented by Petitioner at the hearing. Evidence Offered by Respondent During Petitioner's tenure at SolarTech, Petitioner did not report or document any claims of discrimination for the management team or Human Resource Department ("Human Resources"). During his exit interview, Petitioner likewise made no references to any claims of discrimination or retaliation. In response to Petitioner's claim of retaliation, in that Respondent shared or issued an allegedly false sexual harassment claim, Respondent offered Exhibits 7-1, 7-2, 7-3, and 8-1, and the testimony of Roraff. Exhibit 7-1 is an Employee Incident Report completed by Horace Ducram (Shift Supervisor), which specifies that the complaint made against Petitioner was for "harassment" (second sentence) and not "sexual harassment" as claimed by Petitioner. Exhibit 7-2 is an Employee Incident Report completed by Jodilynn Brown (HR Manager) that reviews the incident, as well as the action that was taken to resolve the harassment claim that was made by Jackson. As documented in these notes, Petitioner was advised not to have any direct contact or conversation with Jackson. Petitioner said "he understood and that this will never happen again." On September 11, 2018, both parties were advised to keep their distance from one another, that this was best for both parties involved. SolarTech's Human Resources followed up on September 28, 2018, and determined that there were no further issues reported by either party. Exhibit 7-3 is a letter written on September 17, 2018, by Petitioner, in response to the harassment complaint. In it, Petitioner acknowledged that the claim by Jackson was general harassment misconduct, and not sexual harassment. Petitioner provided no persuasive direct or circumstantial evidence that supported his claim that Respondent discriminated or retaliated against him by sharing any reports or claims of sexual harassment. Respondent determined that no false or slanderous reports about Petitioner were shared with the Florida Division of the Blind Services or any other potential employer. It was SolarTech's policy only to confirm employment, dates of hire, and position or title. This evidence was credited by the undersigned. Petitioner also unpersuasively claimed that one of the forms of discrimination was SolarTech's requiring him to operate two workstations during his shift as "slave labor." To address this "claim," Respondent submitted Exhibits 5-1, 5-2, and 5-3, and the testimony of Roraff. Exhibit 5-1 outlines the staffing requirements by assignment or workstation. This document was supplied by Meyer Burger, the company that designed and manufactured the solar panel manufacturing equipment used by SolarTech. Thirteen employees, per shift, were considered full capacity to operate the production line. Exhibit 5-2 shows the staffing census by month, as supplied by Paychex, Respondent's payroll processing company. Production on the line required 13 employees to work at full production. The staffing during each of the months in question was: November 2018: 22 employees (+8 employees over staffed)[.] December 2018: 22 employees (+8 employees over staffed)[.] January 2019: 19 employees (+6 employees over staffed)[.] February 2019: 18 employees (+5 employees over staffed)[.] March 2019: 14 employees (+1 employee over staffed)[.] Exhibit 5-2 reflects that SolarTech had to implement a reduction in force ("RIF"). It was required to reduce its staff by three employees in February 2019. This is one month before Petitioner resigned and not three days as Petitioner claimed. The RIF was legitimate and necessary. As outlined in Exhibit 5-2, SolarTech's staffing was overstaffed by one employee at the time Petitioner resigned. This fact belies Petitioner's claim that Respondent was understaffed, or that he was being used or forced into "slave labor." Exhibit 5-3 illustrates the number of units produced per month versus production capacity (4200 modules per month). This exhibit also shows that monthly production, relative to production capacity, presented no strain on labor, nor would it have resulted in Petitioner being overworked. In fact, for the months Petitioner complained he was overworked, production was: 1. November 2018: 100 out of 4200 (2.3% of capacity)[.] 2. December 2018: 16 out of 4200 (0.3% of capacity)[.] 3. January 2019: 126 out of 4200 (3% of capacity)[.] 4. February 2019: 722 out of 4200 (17% of capacity)[.] 5. March 2019: 1539 out of 4200 (37% of capacity)[.] At no time during the five months prior to Petitioner's resignation was the facility at SolarTech understaffed, nor was he overworked. The production team was only required to work at a limited pace, that was, at peak, only 37% of the speed or output designed by the machine manufacturer. Staffing levels at the work stations were always above that required by the machine manufacturer. During the months that Petitioner complained about, the machines ran at a limited production capacity or speed that was, at its highest pace, only 37% of capacity. Conversely, approximately 63% of the employee's time was not working on production. So, Petitioner and other employees had more time to take additional breaks. Petitioner had a chair at his station to sit in during these down times. Even though production employees were required to be trained at multiple stations, as referenced by their job description, they were only required to work one station at a time. SolarTech employees worked on a linear production line. On a linear production line, the employees can not physically work more than one station at the same time. If there was a requirement to operate two stations during a shift, the workload did not increase. The employee merely moved back and forth a few steps between two consecutive work stations in the process. This explanation offered by SolarTech constituted persuasive and credible evidence to establish that any actions by it involving Petitioner during the five months leading up to his voluntary resignation were for legitimate business reasons, and not discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Jodilynn Brown SolarTech Universal, LLC 1800 President Barack Obama Highway Riviera Beach, Florida 33404 (eServed) Errol Hayden White Apartment 1 194 Norwich West Palm Beach, Florida 33417 Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on national origin and disability.
Findings Of Fact Mr. Llevado was born in the Philippines and is a naturalized citizen of the United States. In 1995, Mr. Llevado began working for Sandestin Resort as an equipment operator at the Burnt Pine Golf Course. Mr. Llevado’s duties included mowing greens, raking bunkers, and other tasks related to the maintenance of a golf course. Mr. Llevado was part of a golf maintenance team. The members of the team are cross-trained so that they are able to do all the tasks necessary to maintain the golf course. None of the team members receive extra compensation for doing a particular task. The assignment for each team member is posted at the beginning of the work day, which is 6:00 a.m., on a chalkboard in the break room. The assignment of the tasks is based on the tasks that are needed to be completed and the personnel working each day. Mr. Llevado’s supervisors were Barry Sayers, who was the assistant superintendent of golf maintenance at the Burnt Pine Golf Course, and Jake Leham, who was the director of golf maintenance. Both Mr. Sayers and Mr. Leham considered Mr. Llevado to be a good employee, who could perform all the necessary tasks of an equipment operator. During his employment with Sandestin Resort, Mr. Llevado kept a diary. He noted in his diary that, in April 2001, Mr. Sayers said bad words to him. Mr. Llevado did not specify what the bad words were, but the interpreter at the final hearing interpreted it to mean the words were probably curse words. Mr. Sayers did not recall the incident. No evidence was presented that Mr. Llevado was the only employee to whom Mr. Sayers may have said bad words. On August 22, 2002, Mr. Llevado received an Employment Communication Notice, suspending him for one day without pay. The offense was failing to complete his work as instructed and leaving grass clippings in a bunker. Two times during his employment with Sandestin Resort, Mr. Llevado received an Employment Communication Notice concerning his failure to abide by the company’s policy for requesting leave time. The first occurrence was on September 26, 2003, and the second occurrence was on January 8, 2006. He was suspended two days for the first occurrence, and no disciplinary action was taken for the second occurrence. On October 25, 2006, Mr. Llevado received his annual performance evaluation. He met or exceeded expectations in all categories except following instructions, where it was noted he needed to improve. As a result of his evaluation, Mr. Llevado was given a raise. On October 26, 2006, Mr. Llevado reported to work and found that he was assigned to mow the greens. Two employees failed to come to work, and it was necessary to assign Mr. Llevado the task of mowing greens. Mr. Llevado did not like to mow greens and preferred to rake the bunkers. He requested Mr. Sayers to allow him to rake the bunkers instead of mowing the greens. Mr. Sayers refused and explained the reason why Mr. Llevado was assigned to mow the greens. Mr. Llevado refused to mow the greens. It was 7:00 a.m., and Mr. Sayers had to leave the maintenance building to begin the work of the day. He left Mr. Lehman to deal with Mr. Llevado. Mr. Lehman discussed the mowing of the greens with Mr. Llevado, who requested to be paid more than his hourly wages if he had to mow the greens. Mr. Lehman refused to pay him additional money, and Mr. Llevado accused Mr. Lehman of discriminating against him. When Mr. Llevado accused Mr. Lehman of discriminating against him, Mr. Lehman told Mr. Llevado that he would need to speak to personnel in the human resources department. The human resources department did not begin work until 8:30 a.m. Mr. Lehman indicated that he would arrange a meeting with Sylvia Hanks, the director of human resources. Mr. Lehman told Mr. Llevado to clock out and go home until the meeting could be arranged. Mr. Lehman told Mr. Llevado that he would be compensated for the lost time, if Mr. Lehman erroneously told Mr. Llevado to go home. Mr. Llevado called his sister to come and get him. Mr. Lehman instructed Mr. Llevado to wait in the break room for his ride home from work. Mr. Llevado returned to the break room to wait. While Mr. Llevado was in the break room, he was struck on his head. Terry Clemons, who is the administrative assistant to Mr. Lehman, got to work around 7:00 a.m. on October 26, 2006. When she came in the building, she saw Mr. Llevado sitting in the break room. Approximately 15 minutes later, Mr. Llevado came to her with a bleeding head and said that he had been hit and someone was behind the door. Mr. Llevado had called Sandestin Resort’s security office and reported the incident. Mr. Llevado claims that he saw three men in uniforms running away from the building after he had been hit. Personnel from security were unable to locate anyone described by Mr. Llevado as running from the building. The door to the break room was a swinging door, and it is possible that Mr. Llevado pushed the door, hitting someone behind the door, and causing the door to swing back and hit him in the head. The incident was reported to the Walton County Sheriff’s Office. Mr. Llevado told the investigating officer that he was attempting to exit the building through the swinging door, and someone was on the other side of the door, and he was hit in the head. Mr. Llevado claimed that he passed out as soon as he was hit. If Mr. Llevado passed out as soon as he was hit, it is difficult to reconcile his claim that he saw three uniformed men running away from the building. The greater weight of the evidence does not establish that Mr. Llevado was attacked by employees of Sandestin Resort. It is undisputed that Mr. Llevado did sustain an injury in the break room of the Sandestin Resort on October 26, 2006. Mr. Llevado was treated at the emergency room for his injuries. Mr. Llevado came back to work the day after his injury but left by midday, complaining that his head hurt. Within a day or two of the incident, Mr. Llevado, his sister, Mr. Lehman, and Mr. Sayers met with Ms. Hanks to discuss the situation. At the meeting, Mr. Llevado indicated that he thought that Mr. Lehman had fired him on October 26, 2006. Mr. Llevado was assured that Mr. Lehman had no authority to fire him and that he was not fired. Mr. Llevado did not return to work after October 27, 2006. He requested and received workers’ compensation benefits related to his injury. By letter dated March 22, 2007, the human resources office for Sandestin Resort advised Mr. Llevado that Mr. Llevado’s physician had released Mr. Llevado to return to work and that Sandestin Resort had a job available for him. Mr. Llevado was told to report to work on March 28, 2007. By letter dated March 26, 2007, Mr. Llevado advised Sandestin Resort that he was aware that his physician had released him to return to work, but that he was still experiencing headaches and dizziness. Mr. Llevado also advised that he was seeking further medical treatment. By June 12, 2007, Mr. Llevado had not returned to work at Sandestin Resort. By letter dated June 12, 2007, Sandestin Resort advised Mr. Llevado that he had been on leave of absence since November 28, 2006, and that he had exceeded Sandestin Resort’s leave policy. Mr. Llevado was advised that if he was able to return to work that he would need to submit a full release from his medical provider. Mr. Llevado was also advised that if he did not return to work by June 18, 2007, that his employment would be terminated. Mr. Llevado never submitted a medical release and never returned to work. Sandestin Resort’s Employee Handbook provides that an eligible employee may take up 12 weeks of unpaid medical leave during any “rolling” 12-month period. The handbook further provides that an employee who exceeds the 12-week medical leave may be subject to termination of employment. Mr. Llevado claims that on December 19, 2005, Mr. Sayers told him that he was an illegal alien and that he should go back to the Philippines. Mr. Sayers denied ever telling Mr. Llevado that he should go back to the Philippines. The greater weight of the evidence does not establish that Mr. Lehman made the statement. Both Mr. Sayers and Mr. Lehman have participated in discrimination prevention training. Sandestin Resort employs many persons who have foreign nationalities. Mr. Sayers has personally worked with many people with varying nationalities. Sandestin Resort gives each of its employees an Employee Handbook, which describes the procedure an employee can follow to report a claim of discrimination. If an employee feels that he or she has been discriminated against, the employee is to bring it to the attention of the employee’s supervisor. If the supervisor is the subject of the claim of discrimination, the employee may contact either the manager of the human resources department or the vice president for human resources. Mr. Llevado received the handbook. His personnel file does not indicate that he made any claim of discrimination to his supervisor or the human resources officer prior to October 26, 2006. Part of Mr. Llevado’s claim of discrimination is based on an alleged disability. However, Mr. Llevado failed to establish that he had a disability or that Sandestin Resort perceived him to have a disability. Prior to his injury on October 26, 2006, Mr. Llevado performed his work in a satisfactory manner. He never asked Sandestin Resort for any type of accommodation for his alleged disability. Mr. Llevado contends that he is unable to work because of the injury he sustained on October 26, 2006, and that he has not sought work since the incident. However, Mr. Llevado did not present any medical evidence to establish that he is disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandestin Golf and Beach Resort did not discriminate against Mr. Felixberto A. Llevado based on national origin or disability and dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of January, 2009.
The Issue The issue in this case is whether Respondent, Motel 6, discriminated against Petitioner, Emanuel Sessions, a/k/a Emanuel Glenn, by refusing to rent him a room at the Motel 6, Number 0791 (Motel), based on his race, African-American.
Findings Of Fact Petitioner is an African-American male. The Motel is part of a national public lodging establishment chain, which is in the business of renting rooms to consumers. The Motel is located in Orange County, Florida, where the alleged act of discrimination arose. On October 25, 2010, and for six consecutive nights, Petitioner was a guest at the Motel, registered under the name of Emanuel Glenn.1/ There were no allegations of discrimination reported between October 25, 2010, and October 31, 2010.2/ The only allegation of discrimination occurred on November 1, 2010, when Petitioner was denied a room at the Motel. On October 31, 2010, Petitioner secured room 124 at the Motel. This room was on the ground floor, facing the parking lot. During his testimony, Petitioner failed to recollect that he had stayed at the Motel for the five nights prior to October 31, 2010. Petitioner could not recall when he stayed at the Motel, claiming it was over a year ago, and he did not know; yet, he was adamant that, on November 1, 2010, the Motel would not rent him a room. The evidence was overwhelming that Petitioner had stayed at the Motel for six consecutive nights, beginning on October 25, 2010. On October 31, 2010, the Motel's manager-on-duty was Emile Saleeb (Mr. Saleeb).3/ Late on October 31, 2010, Petitioner went to the Motel lobby and complained to Mr. Saleeb about a security guard questioning Petitioner as he sat in his car in the Motel's parking lot. Petitioner acted in an aggressive and offensive manner and used profanity towards Mr. Saleeb while at least one and up to three other Motel guests were present in the lobby. Mr. Saleeb felt Petitioner caused a disturbance in the Motel's lobby, which could be categorized as aggravated misconduct on the part of a Motel guest. Mr. Saleeb had concerns for the safety and welfare of the Motel's guests as well as its employees. The Motel has a policy that anyone causing a disturbance or engaged in aggravated misconduct on the property will be placed on the do not rent (DNR) list.4/ Mr. Saleeb has the authority to place someone on the DNR list for the Motel. Based on his encounter with Petitioner on October 31, 2010, Mr. Saleeb put Petitioner's name on the Motel's DNR list. Mr. Saleeb's testimony was credible. The following evening, on November 1, 2010, Petitioner attempted to rent another room at the Motel. At that time, Petitioner was told he would not be able to rent a room as he had been placed on the Motel's DNR list. No testimony, credible or otherwise, was offered that Petitioner was told that the refusal to rent a room to him was based on his race. Petitioner jumped to the conclusion that he had been discriminated against because of his race. He believed he had been denied a room at the Motel because he is African-American. He filed a complaint with the Commission about the incident. In his complaint, Petitioner said that he "was told that I couldn't rent a room at Motel 6 on November 1, 2010 because of my skin color, and I have proof wich [sic] is my witness that was there with me." However, this complaint information conflicts with the information that Petitioner provided to the Motel's guest relations department on November 2, 2010. In the guest relations contact report, it was recorded that: GST states last night, he tried to c/i to prop & was told by GSR that he cannot rent there. GST sd he asked why & was told it is based on past experience. GST asked GSR to elaborate & GSR said he had no further information. GST sd the last time he was at prop he had a room with his partner. GST sd he went to sit in his car right outside the rm to made a call to get a better signal. While he was sitting in the car, a police officer came up to the car & opened the door & asked him why he was sitting in his car & did he have a room there. GST sd he told the officer that he did have the room right in front of the car & was making a call from the car because there was a better signal. The officer told GST he had to go back inside his room. GST sd other people were outside their rooms. GST sd when he C/O he told GSR about the officer being rude & opening his car door. GST sd he does not understand any of this. GST said there is no reason for him to not be able to rent at property. GST said he was told he cannot rent there last night about 11 p.m. & the man at the F/D was named Nabeel. Petitioner did not present any witnesses to testify despite repeated opportunities to do so. According to Robert Wade (Mr. Wade), the general manager of the Motel, his primary concern is for the safety and welfare of all the guests on his property, as well as for the safety and welfare of his employees. Mr. Wade confirmed that he is in the business of renting rooms in order to make money; the more money the business brings in, the more his bonus (and the bonuses of his employees) will be. Thus, he wants to rent rooms to customers; however, he must be able to maintain the property in a manner that customers will want to stay at the property. Mr. Wade receives a security report every day from the security officer who was on duty the previous night. Based on this security report, Mr. Wade knows if there are broken lights on the property that need to be fixed, parking lot issues to be addressed or other maintenance issues that should be resolved to ensure the property is well maintained. Additionally, he reviews the security report to review any incidents involving Motel guests or other activities. Upon receipt of the security officer's report of October 31, 2010, Mr. Wade became aware of an incident in the parking lot involving Petitioner. Mr. Wade interviewed Mr. Saleeb and the security officer, Willie Wilson, in order to understand the circumstances. A day later, Mr. Wade was contacted by the Motel's guest relations office regarding a complaint that Petitioner had lodged on November 2, 2011. Based on his own investigation into the facts and circumstances regarding Petitioner being placed on the Motel's DNR list, Mr. Wade determined that it was in the best interest of the Motel that Petitioner be on the Motel's DNR list. Mr. Wade's testimony is credible. There are other Motel guests who are on the DNR list for similar and other reasons. Those guests who are put on the Motel's DNR list based on an infraction of a Motel policy are banned from the property for one year. However, guests whose names are provided by law enforcement for the Motel's DNR list are banned for up to three years. Neither of Petitioner's names is currently on the Motel's DNR list. During the hearing as the facts were presented, Petitioner did not appear to grasp the concept that his placement on the DNR list was a result of his encounter with the security officer in the parking lot which resulted in his loud, aggressive, and disruptive behavior in the Motel lobby in front of Mr. Saleeb and other Motel guests. Petitioner had stayed at the Motel for six consecutive nights. Unfortunately on the sixth night, Petitioner engaged in behavior that caused a disturbance, and he was placed on the DNR list. Petitioner contacted the Motel's guest relations department on November 2, 2010, to complain about his inability to rent a room at the Motel on November 1, 2010. During that November 2, 2010, telephone conversation, Petitioner specifically recalled his issue with the Motel security officer. Yet during the hearing, Petitioner evaded questions about any contact with the security officer, claiming he "might have come across a security guard." Petitioner did not answer questions in a concise manner and evaded answering some questions all together. Thus, his testimony is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Emanuel Sessions in its entirety. DONE AND ENTERED this 16th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 16th day of December, 2011.
