03-001277 Evelyn Martinez vs. Boca Diner Status: Closed Recommended Order on Friday, October 31, 2003.

Summary: Complaint of discrimination on the basis of retaliation was demonstrated, but not as to sexual harassment and national origin. Recommend back pay of $4,033.25.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1277

)

BOCA DINER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 23, 2003, in Boca Raton, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Evelyn Martinez, pro se

Post Office Box 9654

Port St. Lucie, F lorida 34985

For Respondent: Dean J. Tantalis, Esquire

2255 Wilton Drive

Wilton Manors, Florida 33305

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

discriminated against Petitioner on the ba sis of sex (sexual

harassment), national origin, and retaliation in violation of

the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

Evelyn Martinez filed an Amended Charge of Discrimination

with the Florida Commission on Human Relatio ns (FCHR) against

Boca Diner alleging that Boca Diner discriminated against her on

the basis of sex (sexual harassment), national origin, and

retaliation. On March 10, 2003, FCHR issued a Determination of

Adverse Inference - Cause (Determination) and a Noti ce of

Determination of Cause. In the Determination, FCHR stated,

among other things, that Ms. Martinez alleged discrimination on

the basis of sex and retaliation; that Boca Diner failed to

provide information within its control to FCHR; and that,

because of Boca Diner's failure, FCHR drew an adverse inference

as to sexual harassment and retaliation, determining that

reasonable cause existed to believe an unlawful employment

practice had occurred.

On March 27, 2003, Ms. Martinez filed a Petition for Relief

from an unlawful employment practice with FCHR against Boca

Diner alleging, among other things, that Boca Diner created a

hostile work environment and that she was subjected to sexual

harassment and retaliation. On April 9, 2003, FCHR referred

this matter to the Division of Administrative Hearings.

At hearing, Ms. Martinez testified in her own behalf,

presented the testimony of two witnesses, and entered one

exhibit (Petitioner's Exhibit numbered 10) into evidence. Boca

Diner presented the testimony of on e witness and entered one

exhibit (Respondent's Exhibit numbered 1) into evidence.

A transcript of the hearing was not ordered. At the

request of the parties, the time for filing post - hearing

submissions was set for more than ten days following the

hearin g.

Only Boca Diner filed a post - hearing submission.

Ms. Martinez chose not to file a post - hearing submission. Boca

Diner's post - hearing submission was considered in the

preparation of this Recommended Order.

All citations are to Florida Statutes (2003) u nless

otherwise indicated.

FINDINGS OF FACT

1. Evelyn Martinez is a female and Hispanic of Puerto

Rican origin.

2. Ms. Martinez began working at the Boca Diner on May 29,

2000, as a waitress.

3. At all times material hereto, Ms. Martinez was an

employee of Boca Diner.

4. Boca Diner does not dispute that it is an employer

within the jurisdiction of the Florida Civil Rights Act of 1992,

as amended.

5. The hours of operation of Boca Diner were from 6 a.m.

to 10 p.m. Boca Diner was open for breakfast, lun ch, and

dinner.

6. The majority of the persons who were servers at Boca

Diner were females; only a few were males.

7. At all times material hereto, even though other

waitresses of Hispanic descent were employed by Boca Diner,

Ms. Martinez was the only Hi spanic waitress of Puerto Rican

origin.

8. Ms. Martinez had prior experience as a waitress before

beginning her employment with Boca Diner.

9. At Boca Diner, Ms. Martinez worked mostly evening

shifts, reporting to work around 3 or 4 p.m. She worked five to

six days a week.

10. During the week after July 4, 2000, an employee of

Boca Diner by the name of Rick made a remark to Ms. Martinez

that she considered sexual. He stated to her that she had nice

breasts. Ms. Martinez told Rick not to make the remar k again

and walked away.

11. No dispute exists that the remark was a sexual remark.

12. Rick was a server but was not a full - time server, only

part - time. His usual working hours were around 4 - 9 p.m.

13. Ms. Martinez reported the incident, regarding the

remark by Rick, to Boca Diner's owner and manager, John

Pelekanos. 1 Mr. Pelekanos indicated to her that all the other

waitresses tolerated such remarks from Rick and that she should

also. Ms. Martinez stated to Mr. Pelekanos that she was not

going to "t ake" such remarks from Rick.

14. No evidence was presented to show that Boca Diner had

a sexual harassment policy.

15. Rick made no further sexual remarks to Ms. Martinez

after she reported him to Mr. Pelekanos.

16. After reporting the incident to Mr. P elekanos,

Ms. Martinez's working schedule changed. Instead of working

five to six days a week, she now worked two days. 2 However,

Ms. Martinez was able to obtain two additional days from other

workers by them agreeing for her to work their days.

17. Boc a Diner contends that Ms. Martinez's workdays were

reduced because of the slowness of business in the summer;

however, Boca Diner only reduced her workdays. The undersigned

considers it reasonable to reduce the number of working hours of

waitresses due to a slowness of business, but considers it

unreasonable to reduce the workdays of only one waitress, i.e.,

Ms. Martinez, by three to four days, but none of the other

waitresses, because of the slowness of business.

18. Before reporting the remark by Rick, Ms. Martinez felt

harassed by and hostility from the other waitresses. The other

waitresses "hassled" her for not properly performing the "side

work," which consisted of setting - up the salad bar, and filling

bottles of mayonnaise, ketchup, etc.

19. After Ms. Martinez reported the remark by Rick, the

hassling escalated. Additionally, Rick began to constantly tell

Ms. Martinez to quickly do her work.

20. Ms. Martinez did not inform the floor manager, Alex

Lazarus, how the other waitresses or Rick were has sling her.

She did not approach Mr. Lazarus because she considered him to

be verbally abusive to her and other employees.

21. Additionally, after Ms. Martinez reported the remark

by Rick, on July 15, 2000, she was assigned to a different

serving section at Boca Diner. Her new serving section was

section one, which was the number one section and the busiest

and most demanding section at Boca Diner. 3 When she placed her

orders, the orders were completed late. As a result, customers

were complaining.

22. Boca Diner contends that customers were complaining

about Ms. Martinez before she was moved to section one. It is

not reasonable to move a waitress, about whom customers are

already complaining, to a busier and more demanding section of

the restaurant.

2 3. At the end of her shift on July 15, 2000, she was

fired by the floor manager, Alex Lazarus. No dispute exists

that Mr. Lazarus had the authority to fire Ms. Martinez.

24. Mr. Pelekanos was not in the country when Ms. Martinez

was fired.

25. No dispu te was presented that Boca Diner does have the

right to fire waitresses or waiters who are not performing

adequately or who are performing poorly.

26. No evidence was presented as to whether Boca Diner had

employed other Hispanic waitresses of Puerto Rica n origin prior

to Ms. Martinez's employment.

27. No evidence was presented as to whether Boca Diner had

fired other waitresses and, if so, for what reason(s).

28. As to Ms. Martinez's income while she worked at Boca

Diner, no time records were provided b y Boca Diner. Boca Diner

failed to retain her time records. Further, Boca Diner had no

documentation regarding Ms. Martinez's employment with it. Boca

Diner gave no reasonable explanation for its failure to retain

time records or other documentation reg arding Ms. Martinez's

employment with it. Boca Diner did not provide any testimony

regarding monetary remuneration to Ms. Martinez for being a

waitress at Boca Diner.

29. Ms. Martinez did not provide any pay records or

federal income tax returns regardin g her employment with Boca

Diner. However, she did provide a handwritten statement showing

her income at Boca Diner for the time that she worked at Boca

Diner 4 and gave testimony regarding her income at Boca Diner

subsequent to her termination. Her tes timony is found to be

credible.

30. At the time Ms. Martinez was employed at Boca Diner,

her base pay was $40.00 every two weeks, resulting in her base

pay being $80.00 per month.

31. Ms. Martinez handwritten document indicated that she

received $300.00 from May 29 through June 4, 2000; $325.00 from

June 5 through 11, 2000; $325.00 from June 12 through 18, 2000;

$325.00 from June 19 through 25, 2000; $300.00 from June 26

through July 2, 2000; $250.00 from July 3 through 9, 2000; and

$225.00 from July 10 t hrough 15, 2000; totaling seven weeks and

$2,050.00. The evidence did not demonstrate whether the base

pay was included in her income. An inference is drawn that

Ms. Martinez's total income at Boca Diner included the base pay

of $40.00 every two weeks or $80.00 per month.

32. Ms. Martinez testified that she received $1,275.00 in

tips for a month. Reducing her four - week income by her base pay

indicates that she received $1,195.00 in tips for the four - week

period: May 29 through June 4, 2000, at $280.00 i n tips; June 5

through 11, 2000, at $305.00 in tips; June 12 through 18, 2000,

at $305.00 in tips; June 19 through 25, 2000, at $305.00 in

tips. Reducing the remaining three - week period by her base pay

indicates that she received $715.00 in tips for the t hree - week

period: June 26 through July 2, 2000, at $280.00 in tips; July 3

through 9, 2000, at $230.00 in tips; and July 10 through 15,

2000, at $205.00 in tips. As a result, the total amount of tips

that Ms. Martinez received for the time period that she was

employed at Boca Diner totaled $1,910.00. Consequently, it is

reasonable and an inference is drawn that she received $1,910.00

in tips for the seven - week period.

33. After her termination, Ms. Martinez borrowed money in

July and August 2000 from fam ily to pay her monthly obligations,

which included rent, food, gas, insurance, and incidentals. She

estimates that she borrowed from $600.00 to $800.00.

34. After her termination, Ms. Martinez was hired on

August 26, 2000, as "counter - help" at a dry clea ners. She was

paid $6.00 an hour and worked less than 30 hours a week.

Ms. Martinez worked for two weeks at the dry cleaners. An

inference is drawn that Ms. Martinez's income was $348.00, using

29 hours a week at $6.00 an hour.

35. Afterwards Ms. Marti nez was hired part - time as a

waitress at a restaurant. She received $100.00 per week,

including tips. Ms. Martinez worked at the restaurant for three

weeks. An inference is drawn that Ms. Martinez's income was

$300.00, using $100.00 per week for three w eeks.

36. Ms. Martinez was subsequently hired as a waitress at

another restaurant. She received $50.00 per week, including

tips. Ms. Martinez worked at the restaurant for two weeks. An

inference is drawn that Ms. Martinez's income was $100.00, using

$5 0.00 per week for two weeks.

37. On October 26, 2000, Ms. Martinez began working at RTA

Catering, a restaurant. She was receiving $2,000.00 per month.

According to Ms. Martinez, at that time, her income was

comparable or equal to her income at Boca Dine r and she saw no

need to go further into her employment history.

38. After her termination and prior to receiving

employment at RTA, Ms. Martinez' income was $748.00.

39. The total number of weeks from July 15, 2000, the date

of Ms. Martinez's terminatio n, to October 26, 2000, the date of

her comparable employment, is 15 weeks.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11 an d 120.569,

Florida Statutes, and Subsection 120.57(1), Florida Statutes.

41. Section 760.10, Florida Statutes (2000), provides in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire a ny 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.

(b ) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual' s race, color, religion,

sex, national origin, age, handicap, or

marital status.

42. The instant case has no direct evidence of unlawful

unemployment practices. A three - step burden and order of

presentation of proof have been established for unlawful

em ployment practices in which no direct evidence of unlawful

employment practices exists. McDonnell Douglas Corporation v.

Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973);

Aramburu v. The Boeing Company , 112 F.3d 1398, 1403 (10th Cir.

1999). T he initial burden is upon Ms. Martinez to establish a

prima facie case of discrimination. McDonnell Douglas , at 802;

Aramburu , at 1403. Once she establishes a prima facie case, a

presumption of unlawful discrimination is created. McDonnell

Douglas , at 8 02; Aramburu , at 1403. The burden shifts then to

Boca Diner to show a legitimate, nondiscriminatory reason for

its action. McDonnell Douglas , at 802; Aramburu , at 1403. If

Boca Diner carries this burden, Ms. Martinez must then prove by

a preponderance o f the evidence that the reason offered by Boca

Diner is not its true reason, but only a pretext for

discrimination. McDonnell Douglas , at 804; Aramburu , at 1403.

43. However, at all times, the ultimate burden of

persuasion that Boca Diner intentionally discriminated against

Ms. Martinez remains with her. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2d 207 (1981).

44. Ms. Martinez must establish a prima facie case of

discrimination by showing: (1) that she belongs to a protected

group; (2) that she was subjected to an adverse employment

action; and (3) that her employer treated similarly situated

employees outside the protected group differently or more

favorably. McDonnell Douglas , supra ; Holifield v. Ren o , 115

F.3d 1555 (11th Cir. 1997); Aramburu , supra .

45. Ms. Martinez has satisfied the first two requirements

of the prima facie test.

46. As to the third requirement of the prima facie test,

Ms. Martinez must show that she and the other employees (the

c omparator employees) are "similarly situated in all relevant

respects." Holifield , supra , at 1562. In making such a

determination, consideration must be given to "whether the

employees are involved in or accused of the same or similar

conduct and are dis ciplined in different ways." Ibid .

47. The comparator employees "must be similarly situated

in all material respects, not in all respects." McGuinness v.

Lincoln Hall , 263 F.3d 49,53 (2d Cir. 2001); Shumway v. United

Parcel Service, Inc. , 118 F.3d 60, 64 (2d Cir. 1997). "In other

words, . . . those employees must have a situation sufficiently

similar to plaintiff's to support at least a minimal inference

that the difference of treatment may be attributable to

discrimination." McGuinness , supra , at 54.

48. Ms. Martinez has demonstrated that the other similar

situated employees, i.e., the other waitresses, were treated

differently than she was. No evidence was presented that any

other waitresses' days were reduced because of the slow summer.

No eviden ce was presented that any other waitress was fired.

49. The evidence is sufficient to show disparate treatment

between Ms. Martinez and the other waitresses.

50. Ms. Martinez satisfied the third requirement of the

prima facie test.

51. However, Boca Din er demonstrated a legitimate,

nondiscriminatory reason for its employment action of

terminating Ms. Martinez. That reason was poor performance.

52. Ms. Martinez must now demonstrate by a preponderance

of the evidence that the reason offered by Boca Diner for

terminating her is not its true reason, but only a pretext for

discrimination. McDonnell Douglas , at 804; Aramburu , at 1403.

53. The evidence failed to show that a comparator employee

was terminated, not only for poor performance, but at all.

54. T he evidence is insufficient to demonstrate that the

reason offered by Boca Diner for terminating Ms. Martinez was a

pretext for discrimination.

Retaliation

55. Section 760.10(7), Florida Statutes (2000), provides

in pertinent part:

It is an unlawful emplo yment practice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

56. Rick made a sexual remark to Ms. Martinez. She

protested the remark and reported it to the owner and manager of

Boca Diner.

57. To establish a prima facie case of retali ation,

Ms. Martinez must present evidence to show: (1) that she engaged

in protected activity; (2) that she suffered an adverse

employment action; and (3) that there is some causal

relationship link between her protected activity and the adverse

employment action. Holifield , supra , at 1566; Brown v. Sybase,

Inc. , __ F.Supp.2d __, 2003 WL 22407152 (S.D. Fla. September 23,

2003). To meet the causal link, Ms. Martinez must at least

establish that Boca Diner was actually aware that she complained

of Rick's se xual remark (of the protested expression) at the

time that she was fired, which may be established by

circumstantial evidence. Holifield , ibid .; Brown , ibid .

58. Once Ms. Martinez establishes a prima facie case, Boca

Diner must show a legitimate, nondisc riminatory reason for its

action of firing her. Holifield , ibid .; Brown , ibid . If Boca

Diner carries this burden, Ms. Martinez must then show that the

reason offered by Boca Diner is not its true reason, but only a

pretext for retaliation. Holifield , ib id .; Brown , ibid . The

United States Supreme Court has held that the " prima facie case,

combined with sufficient evidence that the employer's asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminat ed." Brown , ibid .,

citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133,

148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

59. In the instant matter, Ms. Martinez presented a prima

facie case of retaliation. Ms. Martinez has shown that she is a

mem ber of a protected group; and she has presented sufficient

evidence to show that she was subjected to unwelcome, sexual

related harassment and that she reported the sexual remark made

to her by Rick to the owner of Boca Diner. Furthermore, she

demonstrate d that Boca Diner was aware of the protected activity

in which she engaged and that she was subsequently terminated

after having engaged in the protected activity.

60. As stated earlier, Boca Diner has presented a

legitimate non - discriminatory reason for firing Ms. Martinez,

i.e., poor work performance.

61. Ms. Martinez has demonstrated that Boca Diner's

explanation is a pretext for retaliation. The evidence

demonstrates that, after Ms. Martinez reported the sexual remark

made to her by Rick, her workday s were significantly reduced,

but no other waitresses' workdays were reduced. Furthermore,

the evidence demonstrates that Ms. Martinez's work - section was

changed to the busiest and most demanding work - section of the

restaurant when Boca Diner was aware th at customers had been

complaining about her service; and that her orders were slow and

late in being prepared after the change to the new section,

which resulted in numerous complaints about her service. The

evidence further demonstrates that Boca Diner r elied upon the

complaints by customers in the number one section to terminate

her.

62. Consequently, the evidence demonstrates that Boca

Diner retaliated against Ms. Martinez.

63. Ms. Martinez lost income because of her wrongful

termination.

64. As to the time that Ms. Martinez worked at Boca Diner,

her workdays were wrongfully reduced the week after July 4,

2000. It is reasonable to infer that she should have worked

four more days during the week of July 10 - 15, 2000. The

evidence does not show that M s. Martinez failed to receive her

base pay of $40.00 every two weeks; therefore, she failed to

receive only tips in that week. Tips are traditionally

dependent upon the whim of customers. Since there was wrongful

action on the part of Boca Diner, it is r easonable to calculate

an average of weekly tips prior to the wrongful reduction in

workdays and apply that figure to the last week of

Ms. Martinez's employment. The average per week for tips is in

the amount of $273.00. 5 Consequently, Ms. Martinez faile d to

receive $273.00 in tips for the last week that she worked at

Boca Diner.

65. Further, Ms. Martinez averaged a monthly income (a

four week period) in the amount of $1,275.00, including tips, at

Boca Diner. She considers herself to have received a com parable

income when she obtained a position on October 26, 2000, at RTA

Catering, a restaurant, and was receiving $2,000.00 per month.

Her contention is reasonable. Ms. Martinez was terminated by

Boca Diner on July 15, 2000. She was without comparable

e mployment for 15 weeks and earned $748.00 during that 15 - week

period. Estimating for 15 weeks, Ms. Martinez would have earned

$4,781.25 at Boca Diner. Consequently, she lost $4,033.25 in

income.

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:

1. Finding that Boca Diner discriminated against Evelyn

Martinez on the basis of retaliation.

2. Ordering Boca Diner to cease the discriminatory

pra ctice.

3. Ordering Boca Diner to pay Evelyn Martinez back pay in

the amount of $4,033.25.

DONE AND ENTERED this 31st day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 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 October, 2003.

ENDNOTES

1/ Mr. Pelekanos testified that Ms. Martinez did not report the

incid ent to him. His testimony is not found to be credible.

2/ The testimony of the only former waitress who testified,

Florence Marcus, is not credible pertaining to the reduction in

the number of workdays for Ms. Martinez.

3/ The testimony of the only f ormer waitress who testified,

Florence Marcus, is not credible pertaining to one section of

Boca Diner not being busier and more demanding than other

sections.

4/ Ms. Martinez prepared the handwritten statement in July 2001

for an unemployment benefits c ase. The amounts were fresh in

her mind at that time and more reliable than her present memory.

The document was persuasive. The Unemployment Appeals

Commission decision, which included the Decision of the Appeals

Referee, was not persuasive as to Ms. M artinez's lost income.

5/ The average was $272.857 per week for tips. The average was

rounded to the nearest dollar.

COPIES FURNISHED :

Evelyn Martinez

Post Office Box 9654

Port St. Lucie, Florida 34985

Dean J. Tantalis, Esquire

2255 Wilton Drive

Wilton Manors, Florida 33305

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, S uite 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.