16-001075 Diane Scott vs. P.E.B. Purveyors, D/B/A Mcdonald's Status: Closed Recommended Order on Thursday, May 26, 2016.

Summary: Petitioner failed to prove that she was discriminated against because of her race at the Respondent's restaurant or place of public accommodation, in the provision of services or food, or in conjunction with the issuance of a trespass warning.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE SCOTT,

Petitioner,

vs. Case No. 16 - 1075

P.E.B. PURVEYORS, d/b/a

MCDONALD ' S,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in thi s matter before Robert L.

Kilbride, the assigned Administrative Law Judge of the Division

of Administrative Hearings ("DOAH") , on April 15, 2016, in

Marathon , Florida.

APPEARANCES

For Petitioner: Diane Scott, pro se

7151 Overseas Highway , Apartment 303

Marathon, Florida 33050

For Respondent: Scott A. Bassman, Esquire

Tasha M. Somarriba, Esquire

Cole, Scott and Kissane, P.A.

110 Southeast 6th Street, Suite 2700

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE S

Whether Petitioner proved that Respondent discriminated

against her on the basis of her race at Respondent ' s restaurant

or place of public accommodation, and , if so, what the relief

should be .

PRELIMINARY STATEMENT

On or about September 23, 2015, Petitioner, Diane Scott

( "Petitioner" or " Scott " ), filed with the Florida Commission on

Human Relations ( " FCHR " ) a Public Accommodation Complaint of

Discrimination ( " Complaint " ) against Respondent, P. E.B.

Purveyors, Inc. ( "Respondent" or " P.E.B. " ), the owner and

operator of the subject McDonald ' s r estaurant in Marathon,

Florida.

Scott alleged in the Complaint that, as recently as June 15,

2015, P.E.B. discriminated against her because of her race

(Afr ican - American), when she was harassed, denied the enjoyment

of service, and issued a trespass warning.

On February 4, 2016, after investigation, FCHR issued a

Notice of Determination: No Reasonable Cause, determining that

there was not reasonable cause to believe that an unlawful

practice had occurred.

Scott requested an administrative hearing by timely filing

her Petition for Relief ( " Petition " ) on February 22, 2016.

The Petition was forwarded to DOAH and assigned to the

undersigned to conduct the reques ted hearing.

Scott ' s case was set for a hearing on April 15, 2016.

P.E.B. filed a Motion for Continuance of Hearing on March 24,

2016 , which was denied by the undersigned.

P.E.B. filed a Motion to Compel Petitioner ' s Deposition on

March 28, 2016 , which wa s granted by the undersigned. P.E.B.

filed a Motion to Shorten Time for Petitioner to Respond to

Respondent ' s Written Discovery Requests on April 1, 2016 , which

was denied by the undersigned.

Scott ' s deposition was taken on April 7, 2016 , in Marathon,

Flo rida. P.E.B. filed a Motion to Dismiss Petitioner ' s Petition

for Relief or, in the A lternative, to Exclude Any Undisclosed

Witnesses from the Final H earing in T his Matter on April 13,

2016 , which the undersigned addressed, in part, at the final

hearing.

T he case proceeded to final hearing as scheduled on

April 15, 201 6, without further objection by either party.

At the hearing, Scott appeared pro se and testified on her

own behalf. Scott offered seven exhibits into evidence, of which

Exhibits 1 - A, 1 - B, 1 - C, and 1 - E were admitted.

P.E.B. called Deputy Matthew O ' Neill and Deputy Rose

DiGiovanni of the Monroe County Sheriff ' s Department ; Rikki

Whitmore, a f loor s upervisor at the subject McDonald ' s ; and Myra

Baucom, the corporate representative of P.E.B., as witnesses.

P.E.B. offered Composite Exhibit 1 into evidence, which was

admitted and was comprised of multiple documents.

The Transcript of the final hearing was filed on May 18 ,

2016. P.E.B. submitted a P roposed R ecommended O rder ( " PRO " ) on

May 9, 2016. Petitioner filed a PRO on May 23, 2016. The PRO s

filed by the parties w ere reviewed and considered by the

undersigned in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the evidence presented at hearing, the undersigned

makes the fol lowing findings of material and relevant facts:

1. Scott is an African - American woman.

2. On May 22, 2015, Scott visited the McDonald ' s in

Marathon , Florida , with her husband in the afternoon.

3. Scott ordered two meals, including a hamburger, and

testi fied that the type of hamburgers she received at the inside

counter were incorrect.

4. S cott complained to the counter staff and was provided

the correct hamburgers and ultimately received the food that she

ordered.

5. S cott then complained that the new burger she was given

was cold. She insisted on getting another burger and also

demanded to keep the first one.

6. There were several customers inside the McDonald ' s on

the afternoon in question , and Scott ' s actions and demeanor were

visible to and done i n the presence of the other customers.

7. Scott became loud and started screaming at the

employee(s) behind the counter.

8. Scott ' s dissatisfaction and yelling caused a disturbance

in the store in front of other patrons and also caused patrons in

the dri ve - through line to ask what was going on inside.

9. The disturbance Scott was creating escalated to the

point that the counter employee could not handle Scott and had to

turn the matter over to a supervisor, who tried to quell the

problem. The supervisor was not successful either.

10. One of the managers of McDonald ' s called the police in

response to Scott ' s disruptive behavior. It was not until then

that Scott left the service counter and sat back down. 1/

11. Deputies Matthew O'Neill and Rose DiGiovan ni of the

Monroe County Sheriff ' s Department arrived. Upon their arrival,

Scott was still yelling, protesting, and being disruptive, again,

inside the restaurant, around other patrons.

12. Because Respondent requested a trespass notice be

issued, Deputy O ' Neill reminded Scott that , if she did not leave

the premises, she would be arrested.

13. Instead of promptly departing, Scott demanded her money

b ack.

14. Deputy O ' Neill advised Scott that the restaurant did

not have to refund her the money , particular ly if Scott was going

to keep the food she was given.

15. McDonald ' s staff nevertheless decided to refund Scott

her money in an effort to accommodate her and resolve the matter.

16. Scott testified that she did receive her money back.

17. As they were b eing escorted out by Deputies O ' Neill

and DiGiovanni, Scott ' s husband told Deputy O ' Neill to take off

his uniform so that he cou ld fight him.

18. Deputies O ' Neill and DiGiovanni escorted Scott and her

husband out of the premises and advised them of the tr espass

warning that McDonald ' s had asked to be issued.

19. Once outside, Scott continued to yell at the officers

across the parking lot.

20. Scott never mentioned to the staff or officers that her

race (African - American) or race discrimination by McDonal d ' s, or

its staff, played any role in (1) the service or hamburger

product or type delivered to Scott during the incident or

(2) McDonald ' s response to the incident.

21. Likewise, the undersigned heard no persuasive evidence

to suggest or prove that race discrimination played any role in

the incident that day. No action, inaction , or treatment of

Scott was because of her race.

22. O ther than conclusory allegations, there were no facts,

either direct or circumstantial, to prove that Scott ' s race

played an y role in what she was served or how she was treated by

McDonald ' s.

CONCLUSIONS OF LAW

23. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes ( 2015). 2/

24. This case involves the application and enforcement of

sections 760.08 and 509.141, Florida Statutes.

25. Section 760.08 states , in pertinent part, " [a ]ll

persons are entitled to the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and

acc ommodations of any place of public accommodation without

discrimination or segregation on the ground of race [ . ] "

§ 760.08, Fla. Stat.

26. Section 509.141 states , in pertinent part :

(1) T he operator of any public lodging

establishment or public food serv ice

establishment may remove or cause to be

removed from such establishment . . . any

guest of the establishment who, while on the

premises of the establishment, . . . indulges

in any language or conduct which disturbs the

peace and comfort of other guests or which

injures the reputation, dignity, or standing

of the establishment ; . . . or who, in the

opinion of the operator, is a person the

continued entertainment of whom would be

detrimental to such establishment .

* * *

(4) If any person is ill egally on the

premises of any public lodging establishment

or public food service establishment, the

operator of such establishment may call upon

any law enforcement officer of this state for

assistance. (emphasis added).

§ 509.141, Fla. Stat.

27. The t erm " public accommodations " includes " facilities

principally engaged in selling food for consumption on the

premises [ . ] " § 760.02(11)(a), Fla. Stat.

28. McDonald ' s in Marathon , Florida, which is the subject

matter of this hearing, was a place of " public accommodation " as

that term is defined.

29. " The Florida [L]egislature patterned the Florida Civil

Rights Act ( " FCRA " ) after Title VII of the Civil Rights Acts of

1964 and 1991, 42 U.S.C. § 2000, et. seq. " Stevens v. Steak n

Shake, Inc. , 35 F. Supp. 2d 8 82, 886 (M.D. Fla. 1998). As such,

Florida courts look to established federal public accommodation

law in resolving cases involving the FCRA. See id.

30. Title II of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a, prohibits discrimination in places of public

accommodation, in language nearly identical to that found in

section 760.08. Due to the lack of Title II cases, federal

courts routinely look for guidance in the law of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, including the law of

the shifting burdens of production of evidence.

31. The United States Supreme Court ' s model for employment

discrimination cases set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973), also provides the model for Title II

public accommodati on cases. 3/ Alford v. Publix Supermarkets,

Inc. , Case No. 15 - 3620 (DOAH Feb. 2, 2016; FCHR Apr. 7,

2016 ) (internal citations omitted).

32. In this case, Scott has the ultimate burden of

proving her allegations. See Fla. Dep ' t of Transp. v . J.W.C.

Co. , 39 6 So. 2d 778, 788 (Fla. 1st DCA 1981). 4 / Like plaintiffs

in Title VII actions, petitions for relief under Florida's Human

Relations Act bear the burden of persuasion at all times on the

ultimate fact of discrimination. See Dep ' t of Corr . v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991) .

33. To establish a prima facie or apparent case of

discrimination under federal law, a plaintiff must prove three

elements: ( 1) that the plaintiff is a member of a protected

class; ( 2) that the defendant intended to disc riminate against

the plaintiff on that basis; and ( 3) that defendant ' s racially

discriminatory conduct abridged a right enumerated in the

statute. Stevens , 35 F. Supp. at 887 , citing Morris v. Off . Max,

Inc. , 89 F.3d 411, 413 (7th Cir. 1996).

34. Under t he McDonnell Douglas analysis, as modified for

the context of discrimination in places of public accommodation,

Petitioner has the burden of establishing by a preponderance of

evidence, a prima facie case of unlawful discrimination. If the

prima facie cas e is established, the burden shifts to Respondent

to rebut or disprove this preliminary showing. To do so it may

produce evidence to show that the allegedly discriminatory action

was taken for some legitimate, non - discriminatory reason.

35. Under the McD onnell Douglas analysis , if Respondent

makes this showing and rebuts Petitioner ' s prima facie case, the

burden then shifts back to Petitioner to show by a preponderance

of evidence that Respondent ' s offered reason was untrue or pre -

textual.

36. In this ca se, Scott failed to present sufficient facts

to prove a prima facie case concerning the second and third

elements of the test outlined in Stevens . There was no

persuasive, or credible, direct or circumstantial evidence

offered by Scott to show: ( 1) that P.E.B. intended to, or in

fact, discriminated against Scott on the basis of her race or;

( 2) that Scott was denied the enjoyment of service or harassed,

or that some other legal right of hers was abridged or denied at

the restaurant or by its staff.

37. N onetheless, the evidence also revealed that P.E.B.

called the police and requested that Scott be issued a trespass

warning and be removed from the premises for legitimate, non -

discriminatory reasons because they reasonably believed that

Scott was disturbin g the peace and comfort of other guests, which

could injure the reputation, dignity, or standing of the

restaurant. See § 509.141, Fla. Stat. 5 /

38. None of what occurred here was because of Scott ' s race

or color. What occurred may have angered, upset, o r offended

Scott, but those feelings or conclusions by her do not transform

otherwise legitimate business practices into an illegal,

discriminatory practice.

39. Even if Scott had established a prima facie or minimum

basis of a case of discrimination -- whi ch she did not -- P.E.B. did

not deny Scott the enjoyment of service or harass Scott.

Additionally, P.E.B. articulated a legitimate, non - discriminatory

reason for seeking the assistance of law enforcement to issue a

trespass warning to Scott, which the unde rsigned finds to be

credible, legitimate, and not pre - textual.

40. Since P.E.B. offered a legitimate, non - discriminatory

reason for seeking Scott ' s removal from the premises, Scott was

obligated under the law to rebut or prove that this reason was

untrue or a pretext for racial discrimination. Scott also failed

to make this showing. Scott did not present any proof or facts

to show that her initial service of the wrong hamburger type or a

cold hamburger was because of her race.

41. Therefore, Scott did n ot carry her burden, either at

the prima facie stage or as the burden shifted back to her, to

prove that P.E.B. denied her enjoyment of service or harassed her

because of her race or that P.E.B. ' s action in seeking the

assistance of law enforcement to issu e a trespass warning to

Scott violated sections 760.08 and 509.141 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief with p rejudi ce and find

in Respondent ' s favor.

DONE AND ENTERED this 26th day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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 26th day of May , 2016 .

ENDNOTE S

1/ There was no evidence present ed to show that this call was

because of Petitioner's race. The situation had simply escalated

to the point that it was appropriate to request the assistance of

law enforcement, in part, to control the situation and issue

Scott a trespass notice.

2/ Ref erences to the Florida Statutes are to the 2015 version,

unless otherwise indicated.

3/ In McDonnell Douglas , 411 U.S. at 792, 802 - 03, the Supreme

Court of the United States outlined a burden of proof " scheme "

for cases involving allegations of discrimin ation under

Title VII, and where the plaintiff has no direct evidence of

discrimination, but relies upon circumstantial evidence to prove

the case. See also , e.g., St. Mary ' s Honor Ctr . v. Hicks , 509

U.S. 502, 506 - 07 (1993).

Under the McDonnell Doug las test, the plaintiff has the

initial burden of establishing by a preponderance of the evidence

a prima facie case of unlawful discrimination. Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA

1996 ), aff ' d, 679 So. 2d 1183 (1996)(citing Arnold v. Burger

Queen Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)).

If, however, the plaintiff succeeds in making out a prima

facie case, then the burden shifts to the defendant to explain or

articulate a legitimate, nondiscriminatory reason for its

complained - of conduct.

Finally, if the defendant carries this burden of rebutting

or explaining away the plaintiff ' s prima facie case, then the

burden shifts back to the plaintiff to demonstrate that the

reason offered by the defendant is not the true reason or is

merely a pretext or false explanation for discrimination.

McDonnell Douglas , 411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

In Hicks , the Court stressed that even i f the trier of fact

were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless remains with the plaintiff to prove the ultimate

question of whether the defendant intentionally discriminate d

against him. Hicks , 509 U.S. at 511. " It is not enough, in

other words, to disbelieve the employer; the factfinder must

believe the plaintiff ' s explanation of intentional

discrimination. " Id. at 519.

4/ This was explained to Scott by the undersigned in some detail

before the start of the final hearing.

5/ The undersigned finds that this concern was legitimate and

reasonable under the circumstances.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplana de Way , Room 110

Tallahassee, Florida 32399

(eServed)

Diane Scott

7151 Overseas Highway , Apartment 303

Marathon, Florida 33050

Scott A. Bassman, Esquire

Tasha M. Somarriba, Esquire

Cole, Scott and Kissane, P.A.

110 Southeast 6th Street , Suite 2700

Fort Lauderdale, Florida 33301

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.