04-002609 D`angelo A. Sullivan vs. Aussie Restaurant Management/Outback Steakhouse Status: Closed Recommended Order on Wednesday, March 16, 2005.

Summary: Petitioner claimed an unlawful employment action was taken by Respondent as retaliation because of Petitioner`s charge of discrimination. No unlawful employment action was taken. Respondent was unaware of Petitioner`s discrimination charge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D'ANGELO A. SULLIVAN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2609

)

AUSSIE RESTAURANT )

MANAGEMENT/OUTBACK STEAKHOUSE, )

)

Respondent. )

)

RECOMMEND ED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on February 8, 2005, in Pensacola,

Florida.

APPEARANCES

For Petitioner: D'Angelo A. Sullivan, pro se

100 6 West Hayes Street

Pensacola, Florida 32501

For Respondent: Maria A. Santoro, Esquire

George, Hartz, Lundeen, Fulmer,

Johnston, King & Stevens

863 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Th e issue is whether Petitioner was subjected to an

unlawful employment practice as a result of retaliation.

PRELIMINARY STATEMENT

On September 16, 2003, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) alleg ing retaliation. FCHR, subsequent to an inquiry,

responded on July 1, 2004, with a Notice of Determination: No

Cause. On July 16, 2004, Petitioner filed a Petition for

Relief, which was forwarded to the Division of Administrative

Hearings. It was filed on July 21, 2004.

The matter was set for hearing on September 15, 2004.

Pursuant to a motion for continuance filed by Respondent, the

matter was rescheduled for September 28, 2004. Because of

turmoil caused in Pensacola by Hurricane Ivan, the hearing was

continued. It was eventually set for February 8, 2005, and

heard as scheduled.

At the hearing, Petitioner testified and offered one

exhibit into evidence. Respondent presented the testimony of

its manager, and offered four exhibits into evidence.

A Tr anscript was filed on March 1, 2005. Respondent timely

filed a Proposed Recommended Order. Petitioner did not.

References to statutes are to Florida Statutes (2004),

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner D'Angelo A. Sullivan is a bl ack male who

worked for Respondent from January 14, 1999, until November 2002

as a blooming onion cook at Respondent's restaurant in

Pensacola, Florida.

2. Respondent Aussie Restaurant Management is a company

that operates an Outback Steakhouse in Pensac ola, Florida.

Respondent employs more than 15 people.

3. In a letter dated September 6, 2002, Petitioner

requested a paid vacation. Petitioner believed he was entitled

to a paid vacation. He departed on vacation on September 23,

2002. Upon returning on September 30, 2002, he was told that he

would not be paid during the time he was on vacation.

4. Respondent has a policy that provides paid vacations to

employees who have worked 32 hours per week for the six weeks

prior to the time requested for a va cation. Petitioner averaged

30.20 hours per week for the six weeks prior to his request for

a vacation. He was, therefore, not entitled to a paid vacation.

5. On October 11, 2002, Petitioner filed a Complaint Form

with the Escambia - Pensacola Human Rela tions Commission. In the

"Nature of the Complaint" section the blocks "race" and "color"

were checked. The "other" block was completed with the words

"promotion, pay raise."

6. In this complaint, Petitioner recited that he was not

given paid leave, th at his work schedule had been reduced, and

that he had been given a $.25 per hour pay raise instead of the

annual $.50 per hour pay raise that he had received in prior

years. The complaint also asserted that only one black had been

employed "out front" am ong the customers. In the complaint he

alleged mistreatment by a manager identified as "Donnie."

Petitioner suggested as a remedy, that Respondent cease

discrimination, that Petitioner be given a pay raise, a paid

vacation, and a W - 4 tax form. He also s uggested that he should

be trained so that he could get a promotion.

7. No evidence was offered demonstrating that Respondent

was aware of the existence of the complaint. Petitioner

testified that he was advised by the person who took his

complaint to re frain from telling Respondent he had complained,

and that he followed that advice.

8. In November 2002, subsequent to an automobile accident,

and upon the advice of the attorney representing Petitioner as

plaintiff in a personal injury lawsuit arising fro m the

accident, Petitioner determined that he should not continue to

work. This decision was based in part upon his belief that

working might lessen his chances of prevailing in the ongoing

lawsuit.

9. In June 2003 Petitioner approached the manager of

Re spondent's restaurant, Nicholas Loizos, on at least four

occasions and asked to be hired as a "take away" person in the

"front of the house." Although his former position of blooming

onion cook was offered to him, Petitioner insisted that he

wanted the "t ake away" position.

10. Mr. Loizos told Petitioner that in order to be a "take

away" person, he would have to take the "Front - of - the House

Selection Test." Petitioner was provided the opportunity to

take this test. Petitioner did not avail himself of th is

opportunity.

11. No evidence was adduced that would indicate that

Respondent engaged in racial discrimination against Petitioner,

or any of Respondent's employees. No evidence was adduced that

would prove that Respondent was aware that Petitioner had filed

a discrimination complaint. Because Respondent was unaware of

the discrimination complaint, Respondent could not have engaged

in retaliation against Petitioner.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over t he subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

13. Respondent is subject to the Florida Civil Rights Act

because it is located in Florida and employs more than 15

people. § 760.02(7), Fla. Stat.

14. In order to pre vail, Petitioner must prove retaliation

by a preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

15. It is an unlawful employment practice to discriminate

against any person because the person opposed an unlawful

employment practice or filed a char ge alleging an unlawful

employment practice. § 760.10(7), Fla. Stat.

16. Section 760.10(7), Florida Statutes, is identical to

the language found at 42 U.S.C. Section 2000e - 3(a), with the

exception that the paragraph begins, "It is" in the Florida

versi on and begins, "It shall be" in the Federal version. The

difference in the first few words has no effect on the meaning

of the statutes.

17. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1 964,

42 U.S.C. Sections 2000e, et seq . Cases interpreting Title VII

are, therefore, applicable to Chapter 760, Florida Statutes.

School Board of Leon County v. Hargis , 400 So. 2d 103 (Fla. 1st

DCA 1981).

18. To prove a prima facie case of retaliation, P etitioner

must demonstrate the following: (a) he engaged in a statutorily

protected expression; (b) he suffered an adverse employment

action such as demotion or assignment to a position with less

responsibility; and (c) the adverse employment action was

c ausally related to the protected activity. Little v. United

Technologies , 103 F. 3d 956, 959 (11th Cir. 1997) and Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998).

19. For purposes of a Title VII retaliation claim,

plain tiff engages in "statutorily protected activity" when he or

she protests an employer's conduct, even if the conduct is

actually lawful, so long as he or she demonstrates a good faith,

reasonable belief that the employer was engaged in unlawful

employment p ractices. See Harper v. Blockbuster Entertainment

Corp. , 139 F.3d 1385, 1388 (11th Cir. 1998).

20. Retaliation is a separate offense from discrimination

under Title VII. An employee need not prove an underlying claim

of discrimination for a retaliation claim to succeed. Sullivan

v. National RR Passenger Corp. , 170 F. 3d 1056 (11th Cir. 1999).

21. When Petitioner made his complaint to the Escambia -

Pensacola Human Relations Commission, on October 11, 2002, he

was engaged in a statutorily protected expre ssion.

22. Only events which occurred after the October 11, 2002,

complaint are relevant to the question of whether Petitioner

suffered an adverse employment action. Therefore, whether or

not Petitioner should have been paid for his September 2002

vaca tion is irrelevant to the outcome of this case.

23. The event about which Petitioner asserted to be

retaliation was the alleged failure of Respondent to re - hire him

in June 2003. Petitioner's claim that he would have taken his

old position as blooming on ion cook, when he returned to work,

is directly contrary to Nicholas Loizos's testimony that

Petitioner refused that position and wished instead to become a

"take away" person. That Petitioner had long contemplated an

upgrade in employment status is refle cted in the complaint of

October 11, 2002, wherein he suggested that he should be trained

so that he could get a promotion. Upon the evidence, taken as a

whole, Petitioner failed to prove that Respondent failed to

offer him his former position. Thus, no adverse employment

action occurred.

24. Moreover, no evidence at all was adduced that would

demonstrate that Respondent was aware that Petitioner had filed

a complaint with the Escambia - Pensacola Human Relations

Commission. It is in the nature of retalia tion that there first

be a precipitating event. Such a precipitating event is not

present in this case. As noted in paragraph 18 above, an

adverse employment action must be causally related to the

protected activity. Therefore, even if it could be fou nd that

Petitioner was the victim of an adverse employment action, it

was not causally related to the protected activity.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is,

RECOMMENDED that the Petition be dismissed.

DONE A ND ENTERED this 16th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 S UNCOM 278 - 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 March, 2005.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apala chee Parkway, Suite 100

Tallahassee, Florida 32301

D'Angelo A. Sullivan

1006 West Hayes Street

Pensacola, Florida 32501

Maria A. Santoro, Esquire

George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

863 East Park Avenue

Tallahassee, Florida 32 301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway

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.