The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue The issue 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
The Issue Whether the Florida Department of Agriculture and Consumer Services (Respondent or Department) discriminated against Deborah Owens (Petitioner) by denying her reasonable accommodation and discharging her based on her disability.
Findings Of Fact Petitioner was a Career Service employee of the Department as an Environmental Specialist II from 2009 until her termination on May 5, 2016. As an Environmental Specialist II, commonly referred to as an “inspector,” Petitioner worked in the Department’s Division of Agricultural Environmental Services, Bureau of Inspection and Incident Response (Department’s Bureau). As an inspector, Petitioner spent approximately 40 percent of her time performing inspections and investigations pursuant to chapters 388 (mosquito control), 482 (pest control), 487 (pesticide regulation and safety), 576 (agricultural fertilizers), 578 (seed), and 580 (commercial feed and feedstuff), Florida Statutes,1/ and related administrative regulations. The rest of Petitioner’s duties consisted of preparing reports based on her inspections and investigations, and maintaining knowledge of applicable statutes and rules. All of the inspectors in the Department’s Bureau were required to be physically capable of performing assigned inspections. While the amount of climbing varied from month to month and place of inspection, Environmental Specialist IIs, as part of their job as inspectors, are required to climb. In the case of fertilizer inspections, inspectors are required to take samples from fertilizer plants, storage vehicles, and trailers in the field. While climbing is not required at those fertilizer plants that have sampling rooms, not all fertilizer plants have sampling rooms. Therefore, inspectors need to be prepared to climb at fertilizer plants. In addition, inspectors are required to climb atop Killebrew trailers2/ or similar equipment in the field to take samples. For inspection of Killibrews, which have separate storage compartments housing fertilizer, an inspector must use a ladder to climb to the top of the Killibrew and obtain samples. Seed inspections may also involve climbing, depending on how the seed is arranged. In some cases, bagged seed is stacked on large pallets, in which case, unless it can be moved, an inspector may have to climb in order to take a sample. During Petitioner’s tenure as an inspector, chapter 482 pest control inspections were added to the inspection duties of Environmental Specialist II following a reorganization of the Department’s Bureau. While, at the time of the hearing, climbing for those types of inspections had been put on hold, fumigation inspections have, at times, required climbing on a ladder into attic spaces or to reach higher exterior portions of a building. Climbing is a variable part of every inspector’s job. The amount of climbing that is required increases during heavy agricultural growing seasons. Although a variable activity, when climbing for inspections is required, it can be laborious. All of the testifying witnesses, who were inspectors for the Department’s Bureau, reported they were required to climb in performing their jobs for the Department. In applying for her Environmental Specialist II position, on a document entitled “Pesticide Compliance Environmental Specialist II Self-Screening/Willingness Questionnaire,” which listed requirements necessary for all candidates, Petitioner affirmatively acknowledged that she was willing and able to “[c]limb and work on top of delivery and application equipment to obtain samples when necessary.” While the climbing requirement varies in frequency, climbing was a necessary part of Petitioner’s job duties as an inspector for the Department, and is a necessary component of an Environmental Specialist II’s job. In 2015, Petitioner took medical leave and underwent double knee replacement surgery. Historically, Department management meets each fiscal year to review inspection numbers by region for purposes of determining and assigning the minimum number of inspections for each inspector for the fiscal year. At the meeting for the 2015-2016 fiscal year, Petitioner was assigned a reduced number of inspections based on the understanding that she would be absent from work for approximately six months due to her medical leave in 2015. Instead of a full fiscal year of goals, Petitioner was given six months of performance goals, reducing the total number of inspections assigned to Petitioner based on her medical leave of absence. Upon her return to work in November 2015, Petitioner had physical limitations stemming from her knee surgery. Petitioner presented to her then-supervisor at the Department, “Dusty” Markham, a doctor’s note dated November 20, 2015. The doctor’s note, from Petitioner’s treating physician, Dr. Richard Vlasak, on UF Health Physician’s stationary, stated, in pertinent part: Deborah Owens has been under my care for treatment of bilateral knee DJD, which included surgery S/P bilateral total knee arthroplasties performed 5/20/15. Limitations: Patient may return to work as of 11/20/15 with restrictions. No cannot [sic] climb on fertilizer trailers, killbrews [sic] no climbing ladders. The above limitations are temporary for 3 months after return to work. Patient is expected to make a full recovery and resume all activities after 3 months time. Upon her return, based on medical information Petitioner provided to the Department’s management, Petitioner was assigned only those inspections that she was medically capable of performing. In February 2016, Petitioner was assigned to the Department’s Region I, and Bryan Smithey, an environmental manager with the Department, became Petitioner’s direct supervisor. Mr. Smithey oversees all of Region I, a territory stretching from Levy County, northward, and westward to Escambia County. Mr. Smithey supervised Petitioner and eight other environmental specialists. Petitioner was assigned a territory within Region I consisting of Gilchrist, Dixie, and Levy Counties. Petitioner’s assigned territory included a fertilizer plant in Trenton, Florida. This plant did not have a sampling room. Because of Petitioner’s temporary restrictions on climbing, other inspectors were assigned to cover Petitioner’s inspections at the Trenton plant. One of the inspectors who covered for Petitioner was Andreas Coveney. Mr. Coveney conducted numerous inspections for Petitioner at the Trenton plant. In order to conduct the Trenton plant inspections, Mr. Coveney had to drive over two hours, one-way, from his home. Another inspector, Ed Harris, conducted over 40 inspections for Petitioner at the Trenton plant. In doing so, Mr. Harris had to drive from his assigned area of Ocala. The inspections that Mr. Coveney and Mr. Harris conducted for Petitioner were additional inspections, separate and apart from their regularly assigned duties. The inspections conducted for Petitioner were not accommodations for her disability. Rather, they were temporary assistances provided for Petitioner at a time when Petitioner was unable to perform the essential duty of climbing as an inspector. Petitioner argues in her Proposed Recommended Order that an e-mail dated November 19, 2015, in which she suggested working from home “while the matter gets cleared up” was a request for accommodation for her disability. It is found, however, that Petitioner’s suggestion was a request for permission to do some work from home for a short time, before actually returning to work, because she was out of sick leave; and it was not a request for accommodation of her disability. In March 2016, Petitioner presented another doctor’s note to management. This note, dated March 10, 2016, was also from Dr. Vlasak. The note again stated that Petitioner “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders.” The new letter, however, stated: “The above limitations are permanent.” Respondent has a policy governing Inefficiency or Inability to Perform Job Duties in Administrative Policy and Procedure (AP&P) No. 5-3. The policy states, “Employees shall, at a minimum, be able to perform duties in a competent and adequate manner.” Id. A violation of this standard can result in termination. By letter dated April 1, 2016 (Intent to Terminate Letter), the Department informed Petitioner of its intention to dismiss her. The Intent to Terminate Letter explained, in part: On March 10, 2016 we received a letter from your physician stating that you are permanently restricted from climbing on fertilizer trailers, killibrews and ladders. While your medical condition is not being questioned, you are expected to, at the minimum, be able to perform duties in a competent and adequate manner. As an employee with the department since December 11, 2009, you are aware that you must be able to perform the essential duties of your position. Your actions constitute a violation of AP&P No. 5-3, Section V, Inefficiency or Inability to Perform Assigned Duties, (Page 3). The Intent to Terminate Letter further informed Petitioner of her right to attend a meeting to be conducted pursuant to section 110.227(5)(a), Florida Statutes, on April 26, 2016 (Predetermination Conference), where she would be allowed to answer, orally or in writing, the charges against her. On April 12, 2016, prior to the scheduled Predetermination Conference, Petitioner provided to Department management another letter regarding her work status. The letter, dated April 12, 2016, was not signed by her physician. Rather, it was signed by a licensed practical nurse (LPN). The April 12, 2016, letter states that it is a “revised work status letter.” The letter restates the previous “[c]annot climb on fertilizer trailers, killbrews [sic] or climbing ladders,” but, instead of advising that the restrictions were permanent, states that “[t]he above limitations are temporary for 12 months as of 3/10/16 at which time we will re-evaluate work status.” The April 12, 2016, letter was apparently authorized by Petitioner’s treating physician, as the LPN’s signature appears above Dr. Vlasak’s signature block, and the letter bears the same UF Health Physician’s letterhead as previous letters from Dr. Vlasak. Petitioner attended the Predetermination Conference, during which she advised that she was currently unable to climb. The April 12, 2016, letter was considered at the Predetermination Conference. The Department’s memorandum dated April 27, 2016, regarding the Predetermination Conference, authored by the Department’s assistant director of Division of Food Safety, states in part: A subsequent letter dated April 12, 2016, from a member of the physician’s staff specified that these same limitations were temporary for the next 12 months at which time they will be re-evaluated. Even though the April 12, 2016, letter was considered, the assistant director supported the recommendation to terminate Petitioner. As he explained in the April 27, 2016, memorandum: In considering the information provided, I looked at Ms. Owens current position description and considered the physical requirements of the inspector position. The position requires someone with full physical capability. Ms. Owens has been medically limited from performing certain duties for almost a year already and is expected to be limited for at least another full year or possibly permanently. Therefore, I am supporting the recommendation for termination for inability to perform assigned duties. Consistent with the Intent to Terminate Letter and the assistant director’s support for termination, by letter dated May 5, 2016, signed by the chief of the Department’s Bureau of Personnel Management, Petitioner was terminated from her position with the Department. Petitioner never requested an accommodation for a disability prior to her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2018.
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd day of December, 2008.
