04-002642 Charlene Mcadory vs. Denny`s Restaurant Status: Closed Recommended Order on Monday, December 20, 2004.

Summary: Respondent did not discriminate against Petitioner on the basis of her race when she visited Respondent restaurant and received less than ideal service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLENE MCADORY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2642

)

DENNY'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for fo rmal hearing before

Robert S. Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on November 3 and 4, 2004, in

Jacksonville, Florida.

APPEARANCES

For Petitioner: Charlene McAdory, pro se

417 Oliver Avenue North

Mi nneapolis, Minnesota 55405

For Respondent: Susan S. Erdelyi, Esquire

Marks Gray, P.A.

Post Office Box 447

Jacksonville, Florida 32201

STATEMENT OF THE ISSUE

The issue is whether Respondent, a restaurant, unlawfully

discriminated a gainst the Petitioner, who is African - American,

by refusing to serve her because of her race.

PRELIMINARY STATEMENT

On August 15, 2003, Petitioner, Charlene McAdory, filed a

charge of discrimination with the Florida Commission on Human

Relations (“FCHR” ) in which she alleged that she was

discriminated against at a Denny’s restaurant located near the

Jacksonville, Florida International Airport. Petitioner

specifically alleged that Respondent’s employees refused to

serve her a meal at the restaurant on Ju ly 2, 2003, because she

is African - American. After investigating Petitioner’s claim,

the FCHR issued a determination of no cause on June 23, 2004.

Petitioner filed a Petition for Relief from the no cause

determination on July 23, 2004, and the matter was transferred

to the Division of Administrative Hearings on July 26, 2004.

The undersigned Administrative Law Judge was assigned to the

case and the matter proceeded to hearing in Jacksonville,

Florida, on November 3 and 4, 2004.

At the final hearing, the Petitioner testified herself, and

offered the testimony of witnesses Shane Durbec, Audrey Howard,

Rhonda Nicks, Deanna Owens, and Sheri Thomas, and offered

Exhibit Nos. 1 through 12, all of which were admitted into

evidence. Respondent offered the testimo ny of witnesses Brandy

Turner, Michael Kinnaman (via telephone), Joanna Lopez, Charlene

McAdory, and Shane Durbec, and offered Exhibit Nos. 1 through

12, all of which were admitted into evidence.

No transcript was filed. After the hearing, Petitioner a nd

Respondent filed their Proposed Recommended Orders on

November 19, 2004.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. At approximately 2:25 p.m., on July 2, 2003,

Petitioner, an African - American resident of Minneapolis,

Minnesota, entered the premises of a Denny’s Restaurant located

at 14697 Duval Road, Jacksonville, Florida, to eat a meal.

2. Petitioner had spent the previous night in Gainesville,

Florida, and had interviewed for a position with the City of

Gainesville that morning before driving to Jacksonville to fly

home to Minneapolis.

3. Petitioner approached the wait stand and waited

approximately three minutes to be seated.

4. Petitioner noticed only five guests in the restaurant

at th e time she was seated, all of whom were Caucasian.

5. Petitioner was seated close to a Caucasian family of

four and a single Caucasian male seated at another table.

6. Petitioner did not claim that she had been segregated

in the restaurant, and admitted that she had been seated close

to tables with customers of other races.

7. Immediately after being seated, Petitioner asked the

hostess for a cup of hot water with lemons, which was promptly

delivered to her by the hostess.

8. Petitioner was treated resp ectfully by the hostess.

9. After the hostess left, Petitioner drank her beverage

while she reviewed the menu and waited to be greeted by her

server and to have her order taken.

10. Although there appeared to be three servers in the

restaurant at the tim e of Petitioner’s visit, only one appeared

to be serving. The others appeared to be completing their “side

work,” that is, restocking and end - of - shift cleaning duties.

11. The only person actually serving customers during

Petitioner’s visit was Rhonda Ni cks, a Caucasian woman. The

restaurant was short staffed during this period due to a shift

change and another server’s failure to show for her shift.

12. While she waited to be served, Petitioner observed

that two Caucasian women entered the restaurant, were seated,

and were promptly served by Ms. Nicks who appeared to be the

only server in the restaurant.

13. Petitioner next observed as a Caucasian man and woman

entered the restaurant, were seated, then promptly had their

drink and food orders taken and served by Ms. Nicks.

14. After waiting 20 - 25 minutes, and not having her food

order taken, or even being acknowledged by the server,

Petitioner went to the cashier’s stand where she was met by

Audrey Howard, an African - American employee of the restaurant ,

who asked Petitioner if she wanted to see a manager. Petitioner

replied that she did want to see a manager, and one was

summoned.

15. After waiting a few minutes, Petitioner was greeted by

a Caucasian manager who identified himself as Mike Kinnaman.

A fter speaking with Petitioner, Mr. Kinnaman offered to

immediately put in Petitioner’s food order, to even cook the

meal himself, and to provide the meal at no charge.

16. Petitioner refused Mr. Kinnaman’s offer, stating that

she had to return her rental car at the airport, then catch a

flight. Mr. Kinnaman then offered Petitioner a business card on

which he wrote “1 free entrée, 1 free beverage, 1 free

dessert . . . Unit #1789."

17. Mr. Kinnaman told Petitioner that she could use the

card for a free meal at another time. This offer was made based

upon the manager’s belief that Petitioner did not have time to

eat and needed to leave for the airport.

18. After speaking with the manager, Petitioner left the

restaurant at approximately 3:00 p.m. She dr ove the short

distance to the airport, removed her luggage and belongings from

the rental car, turned in the car, and received her receipt

which showed that she had turned in the car at the airport Hertz

location at 3:20 p.m.

19. Although Petitioner told the Respondent’s manager that

she had to leave to catch a flight, the evidence showed that

Petitioner’s flight was not scheduled to leave for another four

hours. Petitioner’s rental car receipt documented the fact that

she had a two - day rental and could h ave kept the car for almost

another full day.

20. Petitioner was in no jeopardy of incurring additional

rental car charges or of missing her flight when she hurried

from the restaurant at 3:00 p.m.

21. Although Petitioner observed only nine other custom ers

in the restaurant while she waited to be served, Respondent’s

records and the testimony of Audrey Howard, a former cook at

Respondent’s restaurant, 24 customers were served in the

restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s

visit.

22. Although Petitioner testified that she was the only

African - American customer in the restaurant, Ms. Howard recalled

a table of two African - American patrons who were served during

the time period when Petitioner was in the restaurant. She

specificall y recalled these patrons because the gentleman

returned his omelet to the kitchen, asking for more cheese.

23. During her time in the restaurant, Petitioner observed

only five employees. Respondent’s records demonstrate that 14

hourly employees were in t he restaurant between 2:25 and 3:00

p.m.

24. From where she was seated in the restaurant, it is

likely that Petitioner could not see every customer and employee

in the restaurant.

25. Petitioner never attempted to call a server over to

her table, nor di d she ask the hostess to either take her order

or ask a server to provide her with service while she waited.

26. Petitioner did not complain to the manager that she

had been discriminated against. She complained that she had

received poor service.

27. Respondent requires training for all of its employees

on diversity and discrimination issues before they are allowed

to work for Respondent. Every server who testified at hearing

had specifically undergone diversity and discrimination

training.

28. Altho ugh Respondent has a history of past

discrimination against African - Americans as evidenced by a

consent decree entered into by the company with the United

States Justice Department, it has since received national awards

and recognition for its strides in t he areas of discrimination

and diversity.

29. Respondent takes claims of discrimination very

seriously, and has a zero tolerance standard for acts of

discrimination by its employees.

30. Respondent’s managers are required to report all

claims of racial discrimination to a 1 - 800 hotline. No call was

made by the manager in this case because he did not believe that

a claim of discrimination had been made by Petitioner when she

claimed she had received poor service.

31. Petitioner offered no evidence that she had suffered

damages as a result of the poor service she received at the

restaurant.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

Jurisdiction over the subject matter of and the parties to this

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

33. Section 509.092, Florida Statutes, applies to public

food service establishments such as Respondent’s restaurant:

Public . . . food service establishments are

private enterprises, and the operator has

the right to refuse accommodation s or

service to any person who is objectionable

or undesirable to the operator, but such

refusal may not be based upon race, creed,

color, sex, physical disability, or national

origin.

A person who claims to have suffered a violation of this statute

may p ursue a claim under the provisions of Section 760.11,

Florida Statutes.

34. The term "public food service establishment" is

defined as "any building, vehicle, place, or structure, or any

room or division in a building, vehicle, place or structure

where f ood is prepared, served, or sold for immediate

consumption on or in the vicinity of the premises; called for or

taken out by customers; or prepared prior to being delivered to

another location for consumption." § 509.013(5)(a), Fla. Stat.

The Denny's Res taurant located in Jacksonville, Florida, which

is the subject of this proceeding, is a public food service

establishment.

35. Very little case law exists concerning violations of

Section 509.092, Florida Statutes. Since no decisions have been

reported from Florida courts interpreting the provision, it is

necessary to look to federal actions for guidance. In LaRoche

v. Denny's, Inc. , 62 F. Supp. 2d 1375 (S.D. Fla. 1999), the

court treated the plaintiffs' federal and state law claims as

having identical substantive elements. Stevens v. Steak n

Shake, Inc. , 35 F. Supp. 2d 882 (M.D. Fla. 1998); and Wells v.

Burger King Corporation , 40 F. Supp. 2d 1366 (N.D. Fla. 1998),

specifically apply the statute to restaurant discrimination

claims. The Wells case ult imately focused on the application of

42 U.S.C. Section 1981 and applied the burden shifting test

contained in McDonnell Douglas Corp. v. Green , 41 U.S. 792

(1973), which requires the Petitioner to initially establish

that 1) they are members of a protecte d class; 2) they attempted

to contract for certain services; 3) they were denied the right

for certain services; and 4) such services remained available to

similarly situated persons outside the protected class. Wells ,

supra , at 1368.

36. In Stevens v. S teak n Shake, Inc. , 35 F. Supp. 2d 882

(M.D. Fla. 1998), the plaintiffs alleged that Defendant violated

Section 509.092 when its server asked African - American patrons

to prepay for meals, allegedly because of their race. The

plaintiffs maintained that whi te patrons were not required to

prepay their meals. The court granted summary judgment in favor

of Steak n Shake on the grounds that the plaintiffs had failed

to make a prima facie case of discrimination under Section

509.092, Florida Statutes, namely, th at the restaurant denied

them the full benefits or enjoyment of Steak n Shake and that

similarly situated Caucasians received full benefits or

enjoyment. The court held that the test for establishing a

prima facie case of discrimination under Section 509. 092, the

plaintiff must demonstrate 1) that he or she is s member of a

protected class; 2) that defendant intended to discriminate

against him or her on that basis; and 3) that defendant’s

racially discriminatory conduct abridged a right enumerated in

the statute. Stevens v. Steak n Shake , Id. , at 887.

37. The distinction between cases where discrimination was

found to have occurred and the present matter is that there is a

clear distinction to be made between discriminatory service and

slow or poor servi ce. Nearly everyone who eats in restaurants,

even those billed as “fast food” restaurants, have experienced

slow or poor service from time to time. Everyone has

experienced the feeling of choosing the “wrong” line at the

supermarket checkout or the bank teller and experiencing

frustrating delays while waiting to be served. These examples,

however, fall far short of being discriminatory since they are

based upon the incompetence or lack of training of the service

person, rather than upon race, creed, colo r, national origin,

sex, or physical disability. When faced with such

inconveniences, it is natural for us to feel as though others

around us are being treated with favoritism while we are being

singled out for disparate treatment.

38. Recognizing these inconveniences of modern life, the

courts have found that poor service in the retail or food

service industries, without more, is too commonplace to give

rise to an inference of discrimination. The point may be best

expressed in Roberson v. Burger King, Inc. , 484 F. Supp. 78

(E.D. La. 1994), in which the plaintiff, an African - American,

alleged that defendant’s employee had discriminated against him

by making him wait, after he had ordered, while proceeding to

take the orders of several other Caucasian men who were in line

behind him. In dismissing the case, the court wrote:

In the instant case, plaintiff was not

denied admittance or service — his service was

merely slow. While inconvenient,

frustrating, and all too common, the mere

fact of slow service in a fast - food

restaurant does not, in the eyes of the

Court, rise to the level of violating one’s

civil rights. While it is unfortunate that

plaintiff had to wait for his food, and may

have in fact been served after others who

had ordered sausage biscuits, he has

nevertheless failed to state a cognizable

claim for violation of his civil rights.

Id. at 81 (footnote omitted).

39. In the instant case, Petitioner failed to show that

she was refused service. She was immediately given the beverage

of her choice and, once she called to the manager’s attention

that she had not been served, he immediately offered to put in

her order and even cook it himself. It was Petitioner who

refused to accept the manager’s offer, ostensibly because she

had a plane to catch an d a rental car to return. Petitioner’s

reason for not accepting the manager’s offer turned out to be

false since clearly Petitioner had nearly four hours until her

flight was scheduled to depart and could have kept her rental

car until that time without i ncurring additional charges.

Moreover, Petitioner argued that she was the only African -

American patron in the restaurant, and that she alone was

refused service based solely on her race. At least one employee

who testified recalled other African - American patrons in the

restaurant who were served during the same time period as

Petitioner’s visit. While Petitioner seemed to fall through the

cracks by not being served after her initial beverage was

delivered, she failed to prove that there was any discrimina tory

intent behind the server’s actions. The manager certainly did

everything within his power to make matters better once he

learned of the poor service to Petitioner.

40. In order for Petitioner to prevail on a claim of

discrimination involving slow se rvice, she must demonstrate that

the slow service was accompanied by some additional conduct, or

attended by some other circumstances, such that, taken as a

whole, the resulting situation was “tantamount to a denial of

service or a refusal to serve,” Steve ns v. Steak n Shake , 35 F.

Supp. 2d at 891 n. 6, from which the requisite discriminatory

intent can reasonable be inferred. Petitioner has the burden

here of proving that she was discriminated against by Respondent

when she visited the restaurant in Jacks onville. All that

Petitioner has established is that she received slow service,

but not that Respondent treated her in a hostile manner or one

which a reasonable person would objectively find discriminatory.

Petitioner presented no facts that, other than slow service, to

support her claim that she was discriminated against because of

her race. Since the evidence failed to show a discriminatory

intent on the part of Respondent, Petitioner has failed to show

that Section 509.092, Florida Statutes, has been violated.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is,

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order dismissing Ms. McAdory's Petition for

Relief.

DONE AND ENTERED this 20th day of Dece mber, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of December, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 1 00

Tallahassee, Florida 32301

Susan S. Erdelyi, Esquire

Marks Gray, P.A.

Post Office Box 447

Jacksonville, Florida 32201

Charlene McAdory

417 Oliver Avenue North

Minneapolis, Minnesota 55405

Cecil Howard, General Counsel

Florida Commission on Human R elations

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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.