05-000181 Romeo C. Maderazo vs. C.W. Davis, Inc., D/B/A Mcdonalds, No. 26203 Status: Closed Recommended Order on Wednesday, May 18, 2005.

Summary: Petitioner was demoted for failure to follow the company policy, not because of his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROMEO C. MADERAZO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0181

)

C.W. DAVIS, INC., d/b/a )

MCDONALDS, NO. 26203, )

)

Respondent. )

)

RECOMMENDED ORD ER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearing s , on March 31, 2005, in Niceville,

Florida.

APPEARANCES

For Petitioner: Romero C. Maderazo, pro se

605 McKinney Stre et

Niceville, Florida 32578

For Respondent: Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802 - 4956

STATEMENT OF THE ISSUE

The issue is whether R espondent engaged in an unlawful

employment action based on Petitioner's race.

PRELIMINARY STATEMENT

Petitioner Maderazo (Mr. Maderazo) submitted an Employment

Charge of Discrimination, with the Florida Commission on Human

Relations (FCHR or the Commissio n) which was filed on June 7,

2004. The named employer was Respondent C. W. Davis, Inc.,

d/b/a McDonalds, No. 26203 (Davis, Inc.). In an action dated

December 17, 2004, the Commission rendered its "No cause"

finding subsequent to an inquiry. Mr. Maderaz o filed a Petition

for Relief on January 14, 2005, and FCHR transmitted it to the

Division of Administrative Hearings which filed it on

January 20, 2005.

A hearing was set for Niceville, Florida, on March 31,

2005, and the case was heard as scheduled.

At the hearing, Mr. Maderazo testified and had two exhibits

accepted into evidence. Davis, Inc., presented testimony from

the Petitioner as well as testimony of two additional witnesses

and offered three exhibits into evidence. All three were

admitted.

A T ranscript was filed on May 5, 2005 . Mr. Maderazo and

Davis, Inc., timely filed Proposed Recommended Orders.

References to statutes are to Florida Statutes (200 4 )

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Maderazo is of the Asian race.

2. Davis , Inc., is a corporation doing business in Florida

and employed from 200 to 240 persons, during times pertinent, in

four restaurants in Okaloosa County, Florida . Charles W. Davis

is the owner and president of Davis, Inc.

3. Mr. Maderazo was employed b y Davis, Inc., for a total

of about 12 years. He was first hired as a crew person in Mary

Esther, Florida in 1993. It was during his employment as a crew

person that Davis, Inc., management became aware of him. In

1994 Mr. Maderazo terminated his employ ment with Davis, Inc.,

and moved to California. Davis, Inc., rehired him when he

returned in 1996.

4. Mr. Maderazo was promoted several times within the

Davis, Inc., organization until he reached the position of store

manager in Niceville, at McDonalds N o. 26203. During the course

of this upward mobility, he was sent to various schools by

Davis, Inc., which the corporation funded, including a course at

McDonald Corporation's Hamburger University in Chicago,

Illinois.

5. A store manager at a McDo nalds restaurant is charged

with supervising workers ; ordering supplies ; maintaining a clean

and orderly operation ; keeping track of cash ; filing invoices;

and generally ensuring that the store is profitable.

6. Mike Smith, a Davis, Inc., an employee f or 24 years,

and who appears to be an African - American, and C. W. Davis, the

principal of C. W. Davis, Inc., who appears to be of the

Caucasian race, were intimately aware of Mr. Maderazo 's

capabilities as a McDonalds employee . Indeed, they had known

him personally as an employee for at least 12 years. After

Mr. Maderazo's promotion to store manager, both Mr. Smith and

Mr. Davis visited his store on a frequent basis and observed his

performance.

7. Although Mr. Davis has the ultimate power to promote an

employee to a position of high responsibility, such as store

manager, Mr. Davis and Mr. Smith confer prior to making

promotional decisions and other decisions involving personnel .

Both Mr. Davis and Mr. Smith agreed that, at least until May 3,

2004, Mr. Maderazo was a capable and hard - working employee who

deserved to be a store manager.

8. In April 2004 a meeting was held which the store

managers, including Mr. Maderazo, attended. The meeting was

hosted by Mr. Davis and Mr. Smith.

9. At the meeting m anagement issues were discussed in

general but a substantial part of the meeting specifically

addressed the handling of cash and the necessity for store

managers to e nsure that two bank deposits were accomplished each

day. It was a policy of Davis, Inc., that no more than one

deposit bag should be in a store at one time. An exception to

the deposit rule could be made if a law enforcement escort was

not available during the hours of darkness. In that case, the

deposit could be deferred until the following morning. This

policy has been in effect since about 1980.

10. There was a great concern about cash management at the

stores because of a previous incident where a portion of daily

receipts went missing. Frequent deposits are an important part

of cash m anagement.

11. During the meeting in April 2004, Mr. Davis told each

store manager that their failure to abide by the requirement to

make two deposits each day, subject to the exception noted,

would result in serious consequences to them. Mr. Davis ensur ed

that each of the attending store managers told him specifically

that he understood the guidance provided. Mr. Maderazo,

specifically, looked in the direction of Mr. Davis and nodded in

the affirmative , indicating that he understood .

12. At times perti nent, the McDonalds stores owned by

Davis, Inc., conducted almost all transactions in cash.

Therefore, cash would accumulate if deposits were not made on a

daily basis. The accumulation of large amounts of cash, which

could amount to $20,000 or more over a weekend in a single

store, could result in losses through "mysterious

disappearance." Insurance policies maintained by Davis, Inc.,

d id not cover losses through "mysterious disappearance."

13. The excess accumulation of cash is also a safety

issue. A person harboring a criminal inclination, who would not

commit larceny or robbery at a McDonalds for a few thousand

dollars, might conclude that the risk was worth the reward if

the stake was $20,000 or more.

14. Additionally, Davis, Inc. had suppliers to pay and

without receipts being timely deposited, the business could

experience cash flow disruption.

15. The deposit policy was grounded in reasons that were

obvious to any store manager, and this had to have been obvious

to Mr. Maderazo.

16 . Despite the instructions given to Mr. Maderazo at the

April meeting of managers, and despite the fact that

Mr. Maderazo was undoubtedly aware of the downside of cash

accumulation, he failed, during the weekend preceding May 3,

2004, to ensure that he or his assi stant manager s made deposits

on a daily basis .

17. On May 3, 2004, a Monday , Mr. Maderazo arrived at the

store early in the morning and checked the deposit bags that had

accumulated over the weekend. Five deposit bags should have

been present that mornin g in the store safe. One bag, however,

had gone missing.

18. Mr. Maderazo followed many of the procedures for lost

cash by conducting a search of the store and calling the bank

that would have been the recipient of the deposit and calling

the assistant m anagers. He did not immediately inform Mr. Davis

or Mr. Smith of the loss, which was contrary to company policy.

19. Around noon, Mr. Smith entered the store and inquired

why the store was in a state of disarray. Shortly thereafter,

Mr. Maderazo reveale d to Mr. Smith that a deposit bag with

approximately $3,000 had gone missing.

20. Mr. Smith informed Mr. Davis of the loss. The local

police department was informed, interviews of employees were

conducted, and surveillance tapes were reviewed. These

act ivities did not result in explaining the disappearance of

approximately $3,000 in cash.

21. Mr. Smith asked Mr. Maderazo why the deposits had not

been made over the weekend. Mr. Maderazo informed him that he

had been keeping the weekend deposits in the s afe and then

having Mollie Jimmerson, one of the assistant managers, take the

weekend deposits to the bank on Sunday evenings.

2 2 . Neither Mr. Davis, Mr. Smith, nor law enforcement

authorities considered Mr. Maderazo to be criminally involved in

the loss.

23 . Mr. Smith and Mr. Davis discussed on several

occasions, following these events, whether or not Mr. Maderazo

should be terminated or given a chance to continue working for

Davis, Inc. They determined that he should be retained but

should be demoted t o assistant store manager and transferred to

another store. Mr. Maderazo was informed of this decision in a

meeting between him, Mr. Davis, and Mr. Smith, on May 1 0 , 2004.

24 . In a letter dated May 11, 2004, Mr. Maderazo provided

Mr. Davis with a letter of resignation , effective May 11, 2004 .

In the letter he stated that he believed that the demotion and

transfer were unfair. He also stated, "You've been great to me

and it is part of the reason why I stayed and as [ sic ] been as

loyal to your organizatio n." In the letter he also thanked

Mr. Davis for the opportunities provided to him for almost 12

years.

2 5 . In response, Mr. Davis provided Mr. Maderazo, on that

same day, a written acceptance of his resignation.

Subsequently, although he was under no o bligation to do so,

Mr. Davis directed Davis, Inc. , to provide Mr. Maderazo with a

severance payment in the amount of $700.

26 . Mr. Mad e razo 's position was eventually filled by a

person named Billy Jordan who is of the Caucasian race.

27 . Once, several years prior to this incident, it was

reported to Mr. Maderazo that Mr. Smith had referred to him as a

" Filipino Jew. " This is the sole reference to race that was

produced by Mr. Maderazo and was in the form of hearsay which is

accorded minimal weig ht .

28 . Mr. Maderazo's salary with Davis, Inc., at the time he

resigned was net $1163 biweekly. After his resignation he was

unemployed for one week. Thereafter he went to work for another

McDonalds (which was not owned by Davis, Inc.) and received

$1,000 net biweekly.

CONCLUSIONS OF LAW

2 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760. 11, Fla. Stat.

30 . Sections 760.01 - 760.11 and 509.092, Florida St atutes,

comprise the Florida Civil Rights Act. § 760.01, Fla. Stat.

31 . Davis, Inc. is subject to Section 760.10 , Florida

Statutes, because it employs, " 15 or more employees for each

working day in each of 20 or more calendar weeks in the current

or prec eding calendar year. . . ." § 760.02(7). Fla. Stat.

32 . R ace is a protected class. There is no dispute that

Mr. Maderazo is of the Asian race. § 760.10 Fla. Stat.

3 3 . Mr. Maderazo has the burden of proving by the

preponderance of the evidence that Res pondent committed an

unlawful employment practice. Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

3 4 . Section 760.10, Florida Statutes, provides as follows:

(1) I t is an unlawful employment practice

for an employer:

( a) T o discharge or to fail to 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, rel igion, 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 a ny

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

3 5 . The Commission and the Florida courts have determined

that federal discrimination law should be used as guidance when

construing provisions of Section 760.10 , Florida Statutes . See

Brand v. Florida Power Corp , 633 So. 2d 504, 509 (Fla. 1st DCA

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

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

36. Mr. Maderazo h ad the opportunity to provide either

direct or circumstantial evidence of discrimination. If he had

offer ed direct evidence of discrimination , and if the trier - of -

fact had accept ed that evidence, then Mr. Maderazo would have

proven discrimination . Civil Rights Act of 1964, § 701 et seq. ,

42 U.S.C.A . § 2000e, et seq . Mr. Maderazo produced no competent

di rect evidence of discrimination. Accordingly, proof of

discrimination , if discrimination can be proved , must be

accomplished using circumstantial evidenc e.

37 . The Supreme Court of the United States established , in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

which might be persuasive in cases such as the one at bar. This

analysis was reiterated and refined in St. Mary's Honor Center

v. Hicks , 509 U.S. 502 (1993).

3 8 . Pursuant to this analysis, Mr. Maderazo has the burden

of establishing a prima facie case of unlawful discrimination by

a preponderance of the evidence. If a prima facie case is

established, Davis, Inc., mu st articulate some legitimate,

non - discriminatory reason for the action taken against

Mr. Maderazo. Once this non - discriminatory reason is offered by

Davis, Inc., the burden then shifts back to Mr. Maderazo to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated in Hicks , before

finding discrimination, "[t]he fact finder must believe the

pl aintiff's explanation of intentional discrimination." 509

U.S. at 519.

3 9 . Under the McDonnell Douglas scheme applicable to Title

VII discriminatory treatment cases, Mr. Maderazo must first

establish by a preponderance of the evidence a "prima facie"

cas e of racial discrimination, thus creating the presumption

that Davis, Inc., unlawfully discriminated against him . Civil

Rights Act of 1964, § 703(a)(1), 42 U. S. C. A. § 2000e - 2(a)(1).

40 . In order for Mr. Maderazo to establish a prima facie

case , he mu st demonstrate that: (1) he belongs to a protected

class; (2) Davis, Inc., treated similarly situated employees

outside of his classification differently or more favorably, or

he was replaced by a person outside his protected class; (3) he

was qualified fo r the position of store manager ; (4) and he was

demoted from that position. Maynard v. Board of Regents of

Division of Universities of the Florida Department of Education ,

342 F.3d 1281 (11th Cir. 2003).

41. Mr. Maderazo proved that he belonged to a prot ected

class, Asian. He failed to prove that Davis, Inc., treated

similarly situated employees outside of his classification

differently. However, the person that eventually became store

manager, Billy Jordan , was of the Caucasian race. It is not

clear t hat Billy Jordan was his replacement , but for purposes of

this case, he will be deemed to have been his replacement.

4 2 . Mr. Maderazo was qualified for the position of store

manager and he was demoted from this position.

4 3 . The second McDonnell Douglas factor requires Davis,

Inc., to provide a legitimate, nondiscriminatory reason for its

adverse employment action. It is clear that the reason for its

action was Mr. Maderazo's failure to abide by the announced and

clearly articulated policy with regard to making bank deposits

in a timely manner. The requirement to make daily deposits were

made clear to Mr. Maerazo, and the consequence of the failure to

abide by the policy, a severe adverse employment action, w as

made equally clear.

4 4 . The evidence estab lished that Mr. Maderazo was a

valued employee for over 12 years, that Davis, Inc., expended

substantial sums of money training Mr. Maderazo, that Davis,

Inc., promoted him to positions of increasing responsibility ,

and pay, and that Mr. Davis and Mr. Smit h agonized over what

action would be appropriate when Mr. Maderazo failed to abide by

the deposit policy . These facts are persuasive in arriving at

the conclusion that Mr. Maderazo was going to be demoted solely

due to his failure to abide by the deposit policy.

4 5 . Mr. Maderazo did not demonstrate that the reasons

given by Davis, Inc., for their adverse employment action, w ere

pretextual.

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 the Petition for Relief.

DONE AND ENTERED this 18th day of May , 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee 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 18th day of May , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Romeo C. Maderazo

605 McKinney Street

Niceville, Florida 32578

Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802 - 4956

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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.