01-002408 Randall Carter vs. I-Drive Gc, Inc., D/B/A Golden Corral Status: Closed Recommended Order on Wednesday, November 10, 2004.

Summary: Evidence at hearing established that Petitioner was not promoted due to his job performance, not because of any discriminatory motive on the part of his employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDALL CARTER, )

)

Petitioner, )

)

vs. ) Case No. 01-2408

)

METRO CORRAL PARTNERS, INC., )

d/b/a GOLDEN CORRAL, 1/ )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing

before Lawrence P. Stevenson, a duly-designated Administrative

Law Judge of the Division of Administrative Hearings ("DOAH"),

in Orlando, Florida, on June 15, 2004. The appearances were as

follows:

APPEARANCES

For Petitioner: Randall Carter, pro se

1102 Alfred Drive

Orlando, Florida 32810

For Respondent: Lorraine Maass Hultman , Esquire

Kunkel, Miller & Hament

Orange Professional Centre

235 North Orange Avenue, Suite 200 Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether

Respondent discriminated against Petitioner based upon his race

and/or his age, in violation of Section 760.10, Florida Statutes

(2004). 2/

PRELIMINARY STATEMENT

On June 15, 1998, Petitioner Randall Carter filed a charge

of discrimination, based on race and age, against Respondent

Metro Corral Partners, Inc., d/b/a Golden Corral ("Metro

Corral"), with the Florida Commission on Human Relations (the

"Commission"). The charge alleged that Mr. Carter, a 39-year-old

black male, was not promoted from cook to kitchen manager though

he had more experience and seniority than the "much younger black

male" who received the promotion in April 1998. The charge

further alleged that on June 6, 1998, Mr. Carter overheard two

racially offensive comments by white employees at his workplace.

The allegations were investigated by the Commission and on

April 10, 2001, the Commission issued a finding of "no cause" as

a result of its investigation. Mr. Carter subsequently filed a

Petition for Relief (the "Petition") received by the Commission

on June 8, 2001. On June 15, 2001, the Petition was forwarded to

DOAH for the conduct of a formal hearing.

On July 11, 2001, Respondent filed a Motion to Dismiss

alleging that the Petition violated the requirements of Florida

Administrative Code 60Y-4.009 (since repealed) and that the

Petition was not timely filed. On July 26, 2001, a Recommended

Order of Dismissal was entered finding that the Petition was not

filed within the 35-day period prescribed in Subsection

760.11(7), Florida Statutes (2004).

On April 17, 2002, the Commission entered an Order Remanding

Recommended Order Denying Relief from an Unlawful Employment

Practice. By Order dated April 24, 2002, the DOAH file was

reopened in response to the Commission's remand order. On May

16, 2002, Respondent appealed the Commission's remand order to

the Fifth District Court of Appeal. By Order dated May 21, 2002,

the DOAH file was closed and jurisdiction relinquished to the

Commission without prejudice for return of the case to DOAH after

the appeal.

On March 4, 2003, the Fifth District Court of Appeal

affirmed the Commission's decision without opinion. I-Drive GC.,

Inc., d/b/a Golden Corral v. Florida Commission on Human

Relations , 840 So. 2d 256 (Fla. 5th DCA 2003). The court's

Mandate was forwarded to the Commission on March 21, 2003. On

April 22, 2004, the Commission remanded the case to DOAH,

explaining that the delay was due to the Commission's having

filed the case as a closed appellate case. After an audit of the

files, the Commission discovered its error and forwarded the case

to DOAH. By Order dated May 3, 2004, the DOAH file in the case

was reopened.

The hearing was convened on June 15, 2004. Prior to

submission of evidence, Respondent moved to dismiss the

proceeding on the ground that Mr. Carter was under the age of

40 at the time of the controversy and, thus, arguably not within

a protected class for purposes of age discrimination. The motion

was denied without prejudice, and the matter proceeded to formal

hearing.

At the hearing, Petitioner testified on his own behalf and

presented no exhibits. Respondent presented the testimony of

Shelly McCormick and Eric Holm. Respondent's Exhibits 1

through 4 were admitted into evidence.

At the hearing, the parties agreed that their proposed

recommended orders would be submitted within 30 days of the

filing of the hearing Transcript. The Transcript was filed at

DOAH on August 6, 2004. By Order dated September 3, 2004, the

parties were granted an extension of the time in which to file

proposed recommended orders. Respondent timely filed a Proposed

Recommended Order on September 7, 2004. Petitioner did not file

a proposed recommended order.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

1. Respondent, Metro Corral, operates several family-

oriented buffet restaurants in the Orlando area under the name

"Golden Corral."

2. Petitioner, Randall Carter, is an African-American male

born on December 6, 1958. At the time he filed his charge of

discrimination with the Commission on June 15, 1998, Mr. Carter

was 39 years old.

3. At the hearing, no evidence was presented to show that

age was a factor in the decision not to promote Mr. Carter.

Several persons Mr. Carter's age or older were promoted to

managerial positions in the Golden Corral restaurant that

employed Mr. Carter during the time period at issue.

4. In August 1994, Mr. Carter was hired to work as a cook

at one of Metro Corral's Orlando restaurants. Mr. Carter worked

as a grill cook and a hot bar cook. Like all kitchen employees,

he received cross-training outside his regular work areas, so

that he could fill in at other positions when needed. Mr. Carter

cross-trained in the bakery and the cold food preparation area.

Mr. Carter had no prior experience as a restaurant manager.

5. Though Mr. Carter's charge of discrimination alleged

that he was not promoted to "Kitchen Manager," the evidence at

hearing established that the position in question was "Assistant

Manager." The charge of discrimination alleged that Mr. Carter

was passed over in favor of William Thompson, "a much younger

Black Male."

6. Metro Corral's assistant managers receive extensive

training. A potential assistant manager is first assigned to a

certified training restaurant, where he or she works for five

weeks and learns to train employees for all positions in the

restaurant. Next, the assistant manager trainee is assigned to

another restaurant for an additional five weeks of training,

including computer operations. Finally, the trainee is sent to

Raleigh, North Carolina, for two weeks of classroom training and

testing.

7. Mr. Carter alleges that he was repeatedly passed over

for promotions in favor of employees with less seniority. Shelly

McCormick, the director of operations for Metro Corral and the

person who performed all the hiring, firing, and promotion

functions in the Orlando restaurants, testified that Mr. Carter

was never considered a candidate for promotion.

8. Mr. McCormick was very familiar with Mr. Carter and his

job performance. He considered Mr. Carter to be a "mediocre

employee" at best. Mr. Carter did his job and was, by and large,

not a disciplinary problem. However, Mr. McCormick noted that

Mr. Carter did not keep his work area clean, was not always well

groomed, and did not display the leadership qualities or

exceptional work ethic that Metro Corral sought in potential

managers. In fact, Mr. Carter once confronted a fellow employee

because the employee was working too hard and "[making] everyone

else look bad." Mr. Carter was also unwilling to travel to other

restaurants, a requirement of the management training.

9. Seniority was never a consideration in determining

potential managers. Mr. McCormick testified that performance,

work ethic, and leadership were the qualities under consideration

for potential managers.

10. In April 1998, Mr. McCormick made the decision to

promote William Thompson, an African-American employee who

exhibited strong leadership qualities and a powerful work ethic.

At the time of the promotion, Mr. McCormick did not know whether

Mr. Thompson was younger than Mr. Carter. No evidence was

presented that the promotion was based on anything other than Mr.

McCormick's observation of Mr. Thompson's exceptional job

performance.

11. Mr. Carter testified that on June 6, 1998, he overheard

two statements that he found offensive. Both statements were

allegedly made when a bus full of black people pulled into the

restaurant's parking lot. Mr. Carter testified that Keith

Pangle, the white general manager, told Mr. Thompson to "drop all

the chicken," i.e. , cook all the available chicken because a

busload of black people had arrived. Mr. Carter also claimed

that the lead waitress told someone to cut up all the watermelon,

again, because a busload of black people had arrived.

12. Mr. Carter told Mr. Pangle that he found his statement

offensive. Mr. Pangle sat down with both Mr. Carter and

Mr. Thompson to assure them that he meant nothing offensive. Mr.

Pangle apologized and never again said anything on the job that

could be construed as racist or otherwise offensive.

13. Mr. Pangle denied having made any reference to the race

of the people on the bus. Nonetheless, Mr. McCormick counseled

Mr. Pangle against using descriptive terms for customers entering

the restaurant.

14. Mr. McCormick testified that Mr. Pangle would have

given the order to "drop all the chicken" when a busload of

people arrived, regardless of their color. The fryer holds about

20 pieces of chicken and takes about 15 minutes to cook them

meaning that in an hour, 80 pieces of chicken can be cooked. If

a busload of 100 people comes into the restaurant, the buffet

would fall behind if the chicken were not "dropped" immediately.

Other hot items that require only two or three minutes to fry do

not have to be "dropped" all at once because they can be cooked

as quickly as people eat them.

15. Mr. McCormick testified that items such as vegetables,

watermelon, and cantaloupe are also time consuming to prepare for

the buffet, meaning that "when you see that bus pull up, you've

got to get on it."

16. There was no substantial, persuasive evidence to show

that the employment decision made by Mr. McCormick was based in

whole, or in part, on any intentional discrimination or animus

based upon Petitioner's race or age.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

18. In accordance with Subsection 760.10(1)(a), Florida

Statutes (2004), it is an unlawful employment practice for an

employer to "discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or privileges of

employment because of such individual's race, color, religion,

sex, national origin, age, handicap, or marital status."

19. The Commission and courts in Florida have determined

that federal decisional law and statutory law shall be used as

guidance when construing the provisions of Chapter 760, Florida

Statutes (2004). Flyer Printing Co., Inc. v. Hill , 805 So. 2d

829, 831 n.1 (Fla. 2d DCA 2001); Florida State University v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Florida Department of Community Affairs v. Bryant , 586 So.

2d 1205 (Fla. 1st DCA 1991).

20. The United States Supreme Court in McDonnell-Douglas

Corporation v. Green , 411 U.S. 792 (1973), and Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981), established

the analysis to be used in discrimination cases under Title VII,

which method of analysis is persuasive in cases such as this one.

In the case of St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993), this method of analysis was upheld and was further

refined by the Court's holding that the overall burden of

persuasion of the existence of discrimination or discriminatory

animus by an employer remained on the plaintiff/petitioner.

21. In accordance with this analysis, Petitioner has the

burden of establishing, by a preponderance of the evidence, a

prima facie case of unlawful discrimination. If a prima facie

case is established, the burden shifts to Respondent employer to

articulate some legitimate, non-discriminatory reason for the

action taken against Petitioner. Once the non-discriminatory

reason is offered by the employer, the burden shifts back to

Petitioner to demonstrate that the proffered reason is merely a

pretext for discrimination. As the Supreme Court stated in

St. Mary's Honor Center v. Hicks , supra , before finding

discrimination, "the fact finder must believe the Plaintiff's

explanation of intentional discrimination." 509 U.S. at 519.

22. In that case the Supreme Court stressed that even if

the fact-finder does not believe the proffered reason given by

the employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id.

23. In order for Petitioner herein to establish a prima

facie case of failure to promote based upon his race or age,

Petitioner must establish: 1) that he is a member of a protected

class; 2) that he was qualified for and applied for the position

at issue; 3) that despite his qualifications he was rejected for

the promotion; and 4) that another employee who was not a member

of the protected class and who was no more qualified than

Petitioner was promoted to the position sought. See Boatey v.

Stone , 24 F.3d 1330 (11th Cir. 1994).

24. Petitioner has not established a prima facie case. He

has established that he is a member of a protected class, a

racial minority. However, Petitioner did not establish that he

applied for the position at issue; he merely complained of having

been "passed over." Petitioner did not establish that he

possessed the minimal qualifications for the position in dispute.

Neither did Petitioner provide evidence that Mr. Thompson was no

more qualified or less qualified than he; in fact, the evidence

established that Mr. Thompson was more qualified. Further, the

evidence established that Mr. Thompson was also a member of the

protected class.

25. Accordingly, Petitioner failed to establish a prima

facie case for non-promotion based upon racial discrimination.

Even assuming arguendo that Petitioner had met his initial burden

of establishing a prima facie case of promotional discrimination,

Respondent rebutted that presumption. Through the testimony of

Mr. McCormick and the documentary evidence, Respondent

persuasively established that Mr. Carter was not considered for

promotion because of merit and performance reasons that had

nothing to do with his race or the race of the person who

received the promotion. Respondent thus showed a legitimate,

non-discriminatory reason for the employment decision in

question.

26. The McDonnell-Douglas analysis, concerning the burden of

going forward with evidence, then shifts the burden back to

Petitioner to show that the proffered reason, based upon merit and

performance, was merely a pretext for what amounted to racial

discrimination. Petitioner offered no evidence of intentional

racial discrimination or any evidence tending to establish that

Respondent's proffered reason was merely a pretext.

27. In summary, Petitioner failed to establish a prima

facie case of racial discrimination in Respondent's promotional

decision. He also failed to establish that the proffered reason

asserted by Respondent for its employment decision was pretextual

and was, instead, a product of racial animus.

28. Petitioner likewise failed to establish a prima facie

case of discrimination based on his age. Even if it is assumed

that Petitioner, at age 39, was a member of the protected class,

there was a complete failure of proof by Petitioner as to any of

the other three prongs of the McDonnell-Douglas analysis. Thus,

it is unnecessary to reach Respondent's legal argument that

Petitioner was not within the protected age category because he

was under the age of 40.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of November, 2004.

ENDNOTES

1/ At the final hearing, Respondent corrected the record as to

its name. Respondent had previously been called "I-Drive GC,

Inc." in this proceeding based on filings received from the

Florida Commission on Human Relations.

2/ The events at issue in this proceeding occurred in 1998, and

the Petition for Relief was filed in 2001. However, because

Section 760.10, Florida Statutes (2004), has been unamended

since 1992, the current edition of the Florida Statutes is

employed for ease of reference.

COPIES FURNISHED :

Randall Carter

1102 Alfred Drive

Orlando, Florida 32810

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lorraine Maass Hultman, Esquire

Kunkel, Miller & Hament

Orange Professional Centre

235 North Orange Avenue, Suite 200

Sarasota, Florida 34236

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.