06-005314 Gloria Mitchell vs. Ez Food Mart/Chevron Status: Closed Recommended Order on Tuesday, May 29, 2007.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARNOLD MITCHELL, SR., )

)

Petitioner, )

)

vs. ) Case No. 06 - 5313

)

EZ FOOD MART/CHEVRON, )

)

Respondent. )

_______________________________ )

)

GLORIA MITCHELL, )

)

Petitioner, )

)

vs. ) Case No. 06 - 5314

)

EZ FOOD MART/CHEVRON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case on March 1, 2007, in Gainesville, Florida, before Ella Jane

P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners: Michael Massey, Esquire

Massey & Duffy

Post Office Box 256

McIntosh, Florida 32664

For Respondent: Rob ert A. Rush, Esquire

Marian Rush, Esquire

Rush & Glassman

726 Northeast First Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether Petitioners were denied access by Respondent to a

public accommodation so as to render Respondent liable for any

claims pursuant to Article VI of the Gainesville City Municipal

Code.

PRELIMINARY STATEMENT

Subsequent to entering a Determination of Reasonable Cause

to believe that a discriminatory act had occurred, the City of

Gain esville Human Rights Board referred each of these cases to

the Division of Administrative Hearings, on or about

December 22, 2006, for the purpose of conducting a due process

hearing, pursuant to the City's contract with the Division. See

§ 120.65, Fla. S tat.

On January 1, 2007, the prior Administrative Law Judge

consolidated the cases, and a Notice of Hearing for March 1,

2007, together with an Order of Pre - hearing Instructions, was

entered.

On February 22, 2007, Respondent filed its Pre - hearing

Stateme nt. On February 23, 2007, Petitioner's Pre - hearing

Stipulation [sic] and Incorporated Motion to Strike Respondent's

Pre - hearing Statement was filed. On February 26, 2007,

Respondent filed its Motion for Sanctions for Failure to Serve

Answers to Interroga tories and Request for Production was filed.

On February 27, 2007, Petitioners' Response to Respondent's

Motion for Sanctions was filed. The day before final hearing, a

pre - hearing conference by telephonic conference call was

conducted by the undersigned , at which time all pending motions

were waived.

The final hearing was held in Gainesville, Florida, on

March 1, 2007.

Petitioners presented their own oral testimony and that of

Jay Patel, Sunil Patel, Gira Patel, and Annie Pickens and had

two exhibits a dmitted in evidence.

Respondent presented the oral testimony of Beverly Craig,

Dale Warren, and Gira Patel and had Composite Exhibit R1A - F

(photographs) and Composite Exhibit R2 - A - C admitted in evidence.

On March 9, 2007, Petitioners’ Proposed (Recommend ed) Order

was filed prematurely.

On March 16, 2007, the Transcript was filed, and a Post -

hearing Order giving notice of that filing and explaining how to

prepare a proposed recommended order was entered.

On March 26, 2007, Respondent filed its Written Cl osing

Argument, a document not provided for or recognized by Chapter

120, Florida Statutes, or by the Gainesville Municipal Code.

On March 27, 2007, Respondent's Proposed Recommended Order

(to the City of Gainesville Human Rights Board) was filed.

On Mar ch 27, 2007, Petitioners' Amended Proposed Order was

filed, without leave of the Administrative Law Judge, and on

March 29, 2007, Petitioners' Notice of Filing Second Amended

Proposed Order and second amended Recommended Order to City of

Gainesville Human Rights Board was filed. None of these

pleadings is provided for or recognized by Chapter 120, Florida

Statutes, or by the Gainesville Municipal Code.

Neither party moved to strike the unauthorized materials,

so all have been considered in preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioners Gloria Jean Mitchell and Arnold Mitchell

are husband and wife. They are African - American.

2. Sunil and Gira Patel are husband and wife. They are

not African - American. There was no testimony as to their race.

By observation, it appears that they are Caucasians originating

in the Indian sub - continent. They own Respondent facility EZ

Food Mart/Chevron, which qualifies as a "place of public

accommodation." EZ Food Mart/Chevron is a combination gas

station and convenience store, with a unisex restroom, which is

open for business from 7:00 a.m. to 9:00 p.m. each day.

3. Mr. and Mrs. Sunil Patel employ one female clerk and

one male clerk, Jay Patel. 1/ Jay Patel’s race was not testified -

to, but his race appears to be the same as Mr. and Mrs. Sunil

Patel’s race. Jay Patel speaks English with some confusion,

sometimes using "he" for "it", and does not understand

everything that is said to him in English. However, having

observed his candor and demea nor while testifying, it is found

that Jay Patel has, to a degree, selective understanding, so

that he comprehends more questions that permit generally

exculpatory answers, than questions about particular events on

the days at issue herein.

4. Despite Jay Patel’s testimony that he had been employed

at the store only since April 2006, Mr. and Mrs. Sunil Patel and

Dale Warren place Jay Patel’s commencement of employment at the

EZ Food Mart/Chevron approximately two years earlier, when Mrs.

Patel ceased to go into the store as regularly as she had

before. Their dating of Jay Patel’s arrival is supported by

other parts of Jay Patel’s testimony and is accepted as more

accurate than Jay Patel’s first stated date of April 2006.

5. The majority of the residents of the neighborhood in

which EZ Food Mart/Chevron is located are African - American. The

majority of Respondent's clients are African - American.

6. Mrs. Mitchell frequently purchases gas at EZ Food

Mart/Chevron. On April 26, 2006, she filled her car's gas tank

at the pump and entered the convenience store to pay for the

gas. When she got to the cash register operated by Jay Patel,

she asked to use the restroom. He told her, "No, you can't use

it. It's out of order." Mrs. Mitchell had no trouble

underst anding Jay Patel and had observed on many trips to the EZ

Food Mart/Chevron that he understood others speaking English.

On her way out, she observed a blonde Caucasian man rush in and

ask to use the restroom and further observed that the blonde

Caucasian man was handed a key. Mrs. Mitchell's testimony did

not specify which clerk handed the key to the blonde, Caucasian

man. The blonde Caucasian man was not a customer. Mrs.

Mitchell did not see the condition of the restroom that day and

assumed there was one restroom for women and one restroom for

men. There is no clear evidence as to what time of day this all

occurred or which clerk handed the key to the blonde Caucasian

man, but it was a very busy time of day with many customers

standing in line at the cash registers. There is no evidence of

the actual condition of the restroom on April 26, 2006.

7. On April 28, 2006, Arnold Mitchell was accompanying his

wife on errands. After their car gas tank was filled,

Mr. Mitchell went into Respondent's convenie nce store to pay for

the gas. Mr. Mitchell has a medical condition involving the

need to urinate frequently and urgently. When he paid Jay Patel

for the gas, Mr. Mitchell explained his medical condition and

requested to use the restroom. Jay Patel refus ed to let him use

the restroom, saying something to the effect that, "It's out of

order. Because you live in the neighborhood, you can go home

and use the restroom." There also was another clerk working in

the store at that time.

8. On April 28, 2006, M r. Mitchell went out and told his

wife what had happened. At that point, Mrs. Mitchell realized

Respondent's facility only had one unisex restroom and assumed

that she had been discriminated against on the basis of her

African - American race on April 26, 2 006, by receiving inferior

treatment than had the Caucasian male who had been permitted to

use the restroom after she had been denied.

9. Mr. and Mrs. Mitchell did not see Respondent's unisex

restroom on April 28, 2006. They had no idea what condition it

was in at that time. There is no clear evidence of the

condition of Respondent’s restroom on April 28, 2006.

10. No one connected with Respondent on either April 26,

2006, or April 28, 2006, made any racial comment to either

Petitioner. No racial or di scriminatory comment was made in

their presence at any time by anyone connected with Respondent.

However, both Petitioners were hurt, humiliated, and embarrassed

by what they perceived on April 28, 2006, to be discriminatory

disparate treatment on April 2 6, and April 28, 2006.

11. The Mitchells live two miles or five minutes' drive

away from the EZ Food Mart/Chevron, but on April 28, 2006, they

chose not to go home so that Mr. Mitchell could use the

restroom. As a result, Mr. Mitchell suffered some bladd er pain.

They wanted to get to their dry cleaner before that business

closed, and they got there in time. This evidence puts the

incident at Respondent's establishment on April 28, 2006, at

close to the end of the average business day, between 5:00 and

6 :00 p.m. Mr. Mitchell urinated on himself. The evidence is

not clear as to why he did not use the dry cleaner's restroom,

but it may have been out of order. The next place Petitioners

stopped also had a restroom that was out of order, so he could

not us e it. The third stop, a bus station, let Mr. Mitchell use

its restroom. Mr. Mitchell suffered stress and embarrassment

from this chain of events. 2/

12. On May 2, 2006, Mr. and Mrs. Mitchell returned to

Respondent's store with a TV20 news crew and camera . First,

Mr. Mitchell went into the store, bought something, and asked a

female clerk if he could use the restroom. She told him he

could not. He then asked the male clerk, Jay Patel, who also

told Mr. Mitchell he could not use the restroom. There was no

reference to race by anyone. There was a reference by Jay Patel

to Mr. Mitchell living in the neighborhood, but exactly what was

said about neighborhood residence is unclear. Mr. Mitchell

returned to the parking lot and conferred with the TV20 people.

13. Ten to 15 minutes later, TV20 sent a Caucasian female

into the store. When she asked to use the restroom, she was

given the key immediately by store personnel. The TV20

Caucasian female telecaster returned outside a little while

later. Then the who le TV20 news crew and the Mitchells returned

inside and confronted Jay Patel. 3/

14. There is no clear evidence concerning the actual

condition of the restroom on May 2, 2006. There is no credible

evidence that the restroom was cleaned or was not cleaned during

the 10 - 15 minutes that elapsed between the time Mr. Mitchell was

denied access to the restroom on May 2, 2006, and the time the

Caucasian telecaster was granted access.

15. Photographs in evidence document that at some time the

store's restroom w as unsanitary. "Filthy" would not be too

strong a descriptive adjective. The photographs were

purportedly taken at least two days, and possibly a week, before

May 2, 2007. This places the restroom’s documented filthy

condition as being sometime between April 26 and April 30, 2006.

However, Respondent provided no explanation as to why the

photographs of the restroom had been taken before the first date

of alleged discrimination ever presented any reason to make a

photographic record.

16. Dale Warren, an African - American male, is a uniformed

Alachua County Deputy Sheriff. He lives next door to the EZ

Food Mart/Chevron. He testified that on one occasion,

apparently quite some time before April 26, 2006, he had asked

to use the restroom and Jay Patel told him he could not. Mr.

Warren asked why he could not use the restroom. Jay Patel told

him to go look at it. There is no evidence that Mr. Warren had

to unlock the restroom at that time. Mr. Warren has no trouble

understanding Jay Patel, and apparently, Jay Patel is able to

understand Mr. Warren’s English. Mr. Warren observed the

restroom to "have a whole bunch of toilet tissue and like paper

napkins and it was filthy and he [referring to Jay Patel] said

he needed to clean it and get some work done.” A t that time,

Mr. Warren gently warned Jay Patel to get the restroom fixed or

someone in that African - American neighborhood would file a

discrimination suit. Jay Patel let Mr. Warren use the clean

restroom on a later day. Mr. Warren further claimed that a

young man comes each day, in the afternoons, between 4:30 and

7:30 p.m. and cleans the restroom on a routine basis for Jay

Patel.

17. Jay Patel did not mention in his testimony that anyone

else had ever come in to clean the EZ Food Mart/Chevron

restroo m. Rather, Jay Patel’s testimony and that of Mr. and

Mrs. Sunil Patel suggested that Jay Patel cleaned it himself.

Jay Patel did testify that on May 2, 2006, he had locked the

restroom door from 6:00 p.m. to 8:00 p.m. and that at other

times he had locke d the restroom door and told people who wanted

to use the restroom that they could not use it. The times Jay

Patel claimed to have locked the restroom and prohibited

everyone, regardless of race, from using it were when the

restroom was clean but the stor e was very busy, like during

“rush hour,” which he defined as between 6:00 p.m. and 8:00

p.m., or when the restroom was already filthy. 4/

18. When neither Mr. or Mrs. Sunil Patel was on the

premises, they left the entire running of the store to Jay

Pate l. Shortly before April 26, 2006, Sunil Patel had a

conversation with Jay Patel to the effect that the entire

running of the store was in Jay Patel’s hands, including getting

the messy restroom "under control."

19. At all times material, Mr. and Mrs. Sun il Patel had no

clear anti - discrimination policy in place and none was posted

for the benefit of employees or patrons.

20. The events of May 2, 2006, led to a demonstration with

picketers marching in front of the EZ Food Mart/Chevron. Gira

Patel arrived on the scene and inquired of Mr. Mitchell how she

could make the picketers stop. He asked that she terminate Jay

Patel's employment. She refused.

21. At some unspecified time thereafter, Mr. and

Mrs. Patel did terminate Jay Patel as a result of this

sit uation. However, based on observation at hearing, it is

found that the three remain in contact and are on cordial terms.

In his testimony, Jay Patel continued to refer to Sunil Patel as

“my employer” in the present tense. The Patels stated they saw

noth ing wrong with Jay Patel’s actions.

22. All three Patels denied any racial animus or aversion

to persons of any race.

23. Mrs. Mitchell conceded that in the past she had been

waited - upon by Mrs. Patel in other stores with no hint of racial

discrimination and that no one at the EZ Food Mart/Chevron had

ever made any racial or derogatory statements or reference to

her. Mr. Mitchell agreed that no overt racial comments or

observations had ever been made to, or about, him at the EZ Food

Mart/Chevron.

24. An nie Pickens, an African - American female, who has

lived in the neighborhood of the EZ Food Mart/Chevron for 30

years, testified that on one occasion in March 2006, she had

requested to use the store’s restroom and was denied access by

Mrs. Patel. Although Mrs. Patel denied that she was working in

the EZ Food Mart/Chevron in March 2006, Jay Patel testified that

when Mrs. Patel did work in the store, it was from 1:00 p.m. to

4:00 p.m. It is also possible that Ms. Pickens confused Mrs.

Patel with a female cle rk. In any case, the female behind the

counter told Ms. Pickens in March 2006, that the restroom was

out of order. Ms. Pickens had no personal knowledge whether or

not the restroom was soiled, out of order, or just fine on the

date her request was denied . The time of day she made her

request is not in evidence.

25. Beverly Craig, an African - American female, who does

not live in the neighborhood, testified that she has used

Respondent's restroom numerous times. Ms. Craig has known

Mr. and Mrs. Patel and has patronized the EZ Food Mart/Chevron

for eight years.

26. At hearing, all three Patels testified that neither

race nor neighborhood residence governed whom they let use the

store restroom. All three Patels testified they had no reason

to deny Petitio ners access to their restroom based on any prior

problems with Petitioners. Jay Patel testified that he did not

keep a list of persons who soiled the restroom so as to preclude

them from using the restroom again. 5/

27. At all times material, Mr. Mitchell has been totally

disabled and unemployed. There is no evidence of Mrs. Mitchell

being employed at any time material.

28. There was no evidence of any actual damages incurred

by either Petitioner. There was no evidence concerning lost

wages, psychiatri c or physical disability, medical bills, or any

other resultant expenses, and no evidence of any inability to

enjoy life that resulted from the April 26, April 28, or May 2,

2006, incidents.

29. Respondent denied any liability, but the parties

stipulated that a reasonable attorney's fee would be $250.00,

per hour and that Petitioner's attorney had worked 32.9 hours up

to the commencement of the three and a half - hour hearing, and

that Respondent's attorney had worked 21 hours up to that point.

The Transcr ipt reveals that the hearing herein lasted three and

a half hours. No evidence of costs incurred was offered in

evidence by either party and no party requested that the record

be left open for that type of evidence.

30. There was considerable indecisive ness, speculation,

lack of memory, and vacillation within the testimony of all the

principals herein. Indeed, in some instances, witnesses

contradicted themselves as well as other witnesses. This sort

of immaterial “human error” occurs in every case, and is not

necessarily indicative of untruthfulness. It is a common

occurrence to be considered and weighed by the finder of fact,

who is in the best position to reconcile testimony as much as

possible and to assess the credibility of all witnesses.

However , where there are major and material discrepancies among

witnesses’ respective testimonies, the credibility issue is more

important. In making the foregoing Findings of Fact 1 - 29, the

undersigned has made every effort to reconcile testimony and

exhibits s o that each witness may be found to speak the truth.

However, where major and material conflicts existed, the

credibility issue has been resolved on the characteristics

listed in the Florida Civil Jury Instructions. Generally, where

the foregoing Finding s of Fact diverge from the construction of

events related by any particular witness(es), it is because that

witness or those witnesses were not found entirely credible and

no further discussion of those credibility factors beyond the

discussion incorporate d here and/or within those Findings of

Fact is necessary. On the other hand, certain elements of the

testimony/evidence are clearly incredible, unreliable, less

reliable than other evidence, or otherwise undermine a party’s

theory of the case, and those s pecific elements are discussed

with regard to the shifting burden(s) of proof within the

following Conclusions of Law.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction of this cause, pursuant to a contract with the City

of G ainesville. See § 120.65, Fla. Stat., Article III, Section

8 - 51 and Article IV, Section 8 - 67 of the City of Gainesville

Municipal Code. This cause was conducted pursuant to Section

120.57(1), Florida Statutes.

32. Petitioners filed their complaint pursu ant to Article

IV, Section 8 - 67 of the City of Gainesville Municipal Code,

which provides, in pertinent part, as follows:

8 - 67 Prohibition of discrimination in places

of public accommodation, equal access.

(a) All persons shall be entitled to the

full an d equal enjoyment, of the goods,

services, facilities, privileges, advantages

and accommodations of any place of public

accommodation, as defined in this section,

without discrimination or segregation on the

ground of sexual orientation, race, color,

gende r, age, religion, national origin,

marital status or disability.

(b) . . . each of the following

establishments which serves or holds itself

out as serving the public is a place of

public accommodation . . . including but not

limited to:

* * *

(5) Any gasoline station, retail

establishment, convenience store, beauty

parlor, barbershop, styling salon and

laundries;

* * *

33. Although Code Article IV does not specifically state

that it has been enacted pursuant to Chapter 509, Florida

Statutes, that Article bears a footnote reading, "Cross

reference - Housing, Ch. 13," and:

State law references -- Discrimination on

the basis of race creed, color, sex,

physical disability or national origin in

public lodgings and food service

establishments, F.S. § § 509.092, 509.141,

509.142; discrimination based on religion in

advertising for public accommodations, F.S.

§ 871.04.

34. Also, Code Article III, Section 8 - 51(k) [amended

February 28, 2005], provides, in pertinent part,

. . . In interpreting the provi sions of

this article, the hearing officer may

consider administrative and judicial

interpretations of substantially equivalent

provisions of state or federal laws.

Article III Section 8 - 51, also has been adopted by reference at

Article III, Section 8 - 70 (ord. No. 980524, § 16, 12 - 14 - 98).

Therefore, it is appropriate to apply herein the duty to go

forward, the shifting burdens of proof, and the substantive

statutory and case law applicable to other similar anti -

discrimination legislation, both federal an d state.

35. However, if Petitioners prevail, because the City of

Gainesville has been explicit in setting out the type of damages

which may be awarded to a successful Petitioner if

discrimination is proven under the City's foregoing anti -

discrimination o rdinance scheme, only those types of damages

specifically listed in the City’s Code may be awarded to

Petitioners. See Article III, Section 8 - 51, which provides, in

pertinent part:

(l). . . If the hearing officer finds that a

discriminary practice has occ urred or is

about to occur the hearing officer may

recommend affirmative relief from the

effects of the practice, including actual

damages, equitable and injunctive relief and

reasonable attorneys fees and costs.

36. The common law standard is that each party bears its

own attorney’s fees and costs. It is long - established law that

"an award of an attorney fee to any litigant is in derogation of

the common law and it is allowed only when provided for by

contract or statute." Rivera Deauville Hotel v. Emp loyers

Service Corp. , 277 So. 2d 265, 266 (Fla. 1973). Accordingly,

attorney's fees and costs, being creatures of statute, rule, or

ordinance, and there being no specific authority granted thereby

to the undersigned for the award of fees or costs to a

pre vailing Respondent, this Recommended Order may not create

that jurisdiction, authority, or power. Therefore, if

Respondent prevails, Respondent may not be awarded attorney’s

fees or costs.

37. Additionally, it is noted that, although the City Code

specif ies that an injunction may be recommended by the

undersigned to the City of Gainesville Human Rights Board,

neither party has proffered any citation to seminal law which

would permit the City of Gainesville Human Rights Board to carry

out such a recommenda tion, the authority to enter injunctions

having been reserved to courts created under Article V of the

Constitution of the State of Florida.

38. Section 509.092, Florida Statutes (2006), provides:

Public lodging establishments and public

food service esta blishments are private

enterprises, and the operator has the right

to refuse accommodations 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, o r national origin. A person

aggrieved by a violation of this section or

a violation of a rule adopted under this

section has a right of action pursuant to s.

760.11.

39. The court in LaRoche v. Denny's Inc. , 62 F. Supp. 2d

1375, 1382 - 1383 (S.D. Fla. 199 9), a case dealing with racial

discrimination, set forth the analysis which should be used in

public accommodation cases in Florida:

Under the McDonnell Douglas [ Corp. v.

Green , 411 U.S. 792, 93 S. Ct. 1817 (S. Ct.

1973)] framework, as further elucidated in

Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248, 252 - 53, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981), and St. Mary's Honor

Center v. Hicks , 509 U.S. 502, 506, 113

S.Ct. 2742, 125 L.Ed.2d 407 (1993), the

Plaintiffs must prove by a preponderance of

t he evidence a prima facie case of

discrimination. Specifically, the

Plaintiffs must prove that: (1) they are

members of a protected class; (2) they

attempted to contract for services and to

afford themselves the full benefits and

enjoyment of a public ac commodation; (3)

they were denied the right to contract for

those services and thus, were denied the

full benefits or enjoyment of a public

accommodation; and (4) such services were

available to similarly situated persons

outside the protected class who re ceived

full benefits or enjoyment or were treated

better. United States v. Landsowne Swim

Club , 894 F.2d 83, 88 (3rd Cir. 1990).

Once the Plaintiffs meet this burden, they

establish a presumption of intentional

discrimination. Hicks , 509 U.S. at 506, 113

S.Ct. 2742. The effect of this presumption

shifts the burden to the Defendant to

produce evidence of a legitimate, non -

discriminatory reason for the challenged

action. Id. at 506 - 507, 113 S.Ct. 2742;

McDonnell Douglas , 411 U.S. at 802, 93 S.Ct.

1817; Burdine , 450 U.S. at 254, 101 S.Ct.

1089. The Defendant's burden of production

is a light one. Batey v. Stone , 24 F.3d

1330, 1334 (11th Cir. 1994).

When a defendant meets its burden of

production, the presumption of

discrimination which the McDonnell Douglas

framework creates, "drops from the case" and

"the factual inquiry proceeds to a new level

of specificity." Burdine , 450 U.S. at 255,

n. 10, 101 S.Ct. 1089. The burden then

shifts back to the Plaintiffs to demonstrate

that the Defendant's actions were not for

the proffered reason, but were, in fact,

motivated by race. Hicks , 509 U.S. at 507 -

08, 113 S.Ct. 2742; Burdine , 450 U.S. at

253, 101 S.Ct. 1089. Plaintiffs may prove

this fact either by means of affirmative

evidence that race played an impe rmissible

role in [Respondent’s] action, or by showing

that the proffered non - discriminatory reason

does not merit credence. Id. at 256, 101

S.Ct. 1089. The ultimate burden is on the

Plaintiffs to prove that they were the

victims of intentional discrimin ation.

[Bracketted material has been provided for

clarity.]

40. Petitioners may make a prima facie showing of

discrimination sufficient to meet the first part of the three -

part McDonnell Douglas burden of proof test by establishing that

they applied t o use the restroom; they were denied use of the

restroom; and, at the time of such rejection, they were members

of a protected class. See Soules v. United States Department of

Housing and Urban Development , 967 F.2d 817, 822 (2nd Cir.

1992), a housing dis crimination case.

41. The prima facie case presented herein by Petitioners’

case - in - chief shows that: Mr. and Mrs. Mitchell are African -

Americans. On April 26, 2006, Mrs. Mitchell was denied access

to Respondent’s unisex restroom and immediately afterw ard, a

Caucasian was granted access. It further shows that on

April 28, and May 2, 2006, Mr. Mitchell was denied access and

immediately after the May 2, 2006 denial, a Caucasian female was

granted access. Clearly, the definitive factor in the denial of

access appears to be the Mitchells’ African - American race.

Therefore, Petitioners have established their prima facie case.

42. At hearing, Respondent stated two separate and

distinct non - discriminatory reasons for denying access to the

Mitchells. The re asons given at trial were that access was

denied because either the restroom was filthy or because it was

clean and Jay Patel did not want it to become filthy from use

during the rush hour. Those non - discriminatory reasons, as

stated at the hearing, fall apart for several reasons. First,

which of these two reasons supposedly occurred on either date

was not affirmatively demonstrated by Respondent, and whether or

not the May 2, 2006, event occurred at rush hour was not

affirmatively demonstrated. Even if one or both of these

defenses stated at hearing had been clearly established, the

evidence still shows that the Caucasians were given a key to the

restroom and the option of choosing to use, or not use, the

(purportedly filthy) restroom, while the African - Americans were

denied a similar chance to choose to use, or not use, the

restroom.

43. Respondent submits, post - hearing, that it was

Petitioner’s obligation to prove that Respondent’s restroom was

not cleaned - up between a denial of access to one of the Af rican -

American Petitioners and the time a Caucasian was permitted to

enter it. This is legal nonsense. Even with a shifting burden

of proof, Petitioners are not required to prove a “double

negative.” Although Respondent's burden is exceedingly light

and is a burden of production only and not of either proof or

persuasion ( see Burdine supra ) Respondent must do something more

than state , without any credible supporting evidence, that the

allegedly discriminatory act was done for a non - discriminatory

purpos e.

44. The record shows that on April 26, 2006, a Caucasian

was immediately given the restroom key while Mrs. Mitchell was

still in the store after having been denied restroom access by

Jay Patel at the counter. That day, too short a period of time

had elapsed for Jay Patel to have abandoned his cash register,

in front of which a line of people was apparently still waiting,

gone to the restroom, cleaned it, and returned to the counter.

On May 2, 2006, Jay Patel was still behind the counter and could

no t have had time (10 to 15 minutes) to clean the restroom

between the time he denied access to the African - American

customer, Mr. Mitchell, and the Caucasian customer was admitted.

Also, Jay Patel at no time testified to the presence, during

those short pe riods on April 26, 2006, or May 2, 2006, or indeed

even to the existence, of the “young man” whom Deputy Sheriff

Walden alleged regularly cleans the restroom. Also, clean or

filthy, Respondent's restroom was made available to Caucasians

and was not made a vailable to African - Americans.

45. Respondent’s post - hearing filings suggest that it

makes some difference that neither Mr. or Mrs. Mitchell

specifically stated whether Jay Patel or the female clerk handed

a restroom key to either Caucasian, but this argu ment is a “red

herring”, designed to detract from material matters. 6/ Both

Mr. and Mrs. Mitchell were clear that they were denied access by

Jay Patel, and Mr. Mitchell testified he was denied access by

the female clerk as well. Therefore, it is of no sig nificance

that the female clerk may have been the one to give the restroom

key to the Caucasian on either date. Mrs. Mitchell testified

Jay Patel denied her access on April 26, 2006. Mr. Mitchell

testified that Jay Patel denied him access on April 28, 20 06 and

on May 2, 2006. Jay Patel never clearly and credibly denied

giving the key to the Caucasian female on May 2, 2006.

46. No credible reason was given by Jay Patel for taking

the photographs of the restroom on or about the time

Mrs. Mitchell was firs t denied access to the restroom. Nothing

on the photographs themselves dates them. Nothing ties the date

of the photographs, as given by Jay Patel, to Deputy Sheriff

Warren’s apparently much earlier warning about possible

discrimination suits. It is mor e likely these photographs were

taken after May 2, 2006, in anticipation of litigation, when the

Respondent’s theory of the case changed, as described below in

Conclusions of Law 50 - 55.

47. The denial of access to Ms. Pickens, an African -

American neighbo r, is noted. It is more likely that Deputy

Sheriff Warren, an African - American male, was given admission to

the restroom by Jay Patel because of his uniformed employment

status and the proximity of his home to the EZ Food

Mart/Chevron, than because the EZ Food Mart/Chevron’s restroom

was open to one and all on a non - discriminatory basis. The

access granted the non - neighbor, African - American Mrs. Craig is

remote in time from the charges herein, and sends mixed messages

based on Respondent's shifting theori es of the case.

48. Based on the Supreme Court’s clear statement in its

majority opinion in Hicks v. St. Mary’s Honor Center , 970 F.2d

487 (8th Cir. 1992), read together with the dissenting opinions,

it appears that the Hicks Court was unanimous that disb elief of

the Respondent’s proffered reasons, together with the prima

facie , case is sufficient circumstantial evidence to support a

finding of discrimination. See Combs v. Plantation Patterns,

Meadowcraft, Inc. 106 F.3d 1519 (11th Cir. 1997). Therefore,

Petitioners should prevail.

49. However, assuming, arguendo, but not ruling, that

Respondent’s case - in - chief succeeded in shifting the burden of

proof back to Petitioners, so that Petitioners had to show that

Respondent’s articulated reason(s) for the al legedly

discriminatory act of denying them restroom access were

pretextual, it is concluded that pretext has been demonstrated

and Petitioners still should prevail.

50. Where different non - discriminatory explanations are

articulated by a respondent over t ime, a reasonable trier of

fact may infer from the discrepancies that the reasons given at

trial are pretextual, developed over time, to counter the

evidence as it is uncovered or subsequently presented. See

DeMarco v. Holy Cross High School , 4 F.3d 166 ( 2nd Cir. 1993),

stating that pretext inquiry takes into consideration “whether

the putative non - discriminatory purpose was stated [by the

respondent] only after the allegation of discrimination;”

Schmitz v. St. Regis Paper Co., 811 F.2d 131, 132 (2nd Cir.

1987) ( per curiam ), holding that a shift in justifications given

at trial which indicated an after - the - fact rationalization by

the defendant could be sufficient to prove pretext) (citation

omitted); see also Washington v. Garrett , 10 F.3d 1421, 1434

(9th C ir. 1993) (“In the ordinary case, such fundamentally

different justifications for an employer’s action . . . give

rise to a genuine issue of fact with respect to pretext since

they suggest the possibility that . . . the official reasons

[were not] the true reasons.”); Castleman v. Acme Boot Co. , 959

F.2d 1417, 1422 (7th Cir. 1992),(“A jury’s conclusion that an

employer’s reasons were pretextual can be supported by

inconsistencies in . . . the decision maker’s testimony.”) On

all points supra , see also the discussion in Equal Employment

Opportunity Commission v. Ethan Allen, Inc. , 44 F.3d 116 (2nd

Cir. 1994).

51. Herein, Respondent’s February 22, 2007, Pre - hearing

Statement advanced the following theory of the case:

A clerk who was working at the store,

who no longer works at the store, denied

people that he believed lived in the

neighborhood who were using the bathroom as

their own private bathroom access to the

bathroom.

It further stated that:

There was a clear non - discriminatory reason

given at the ti me why access was denied in

that he believed the Mitchells lived in the

neighborhood and were abusing the bathroom

privilege.

52. A shift in enunciated non - discriminatory reason at any

point will “raise the specter of a rationalization intended to

conce al the true facts.” See Burdine , supra , 450 U. S. 248, at

252 - 256, 101 S. Ct. 1089 (1981). A shift in enuciated non -

discriminatory reason after investigation begins is enough to

undermine credibility. See Goldsmith v. City of Atmore , 996

F.2d 1155 (11th Cir. 1993). A shift in enunciated non -

discriminatory reason at trial affects, at the very least,

credibility. See Schmitz , supra .

53. Jay Patel testified, however disjointedly, that

generally he locked the restroom so he would not have to clean

it or because it was filthy. He also clearly testified,

contrary to Respondent's pre - hearing statement herein, that he

did not lock the door to keep residents of the

neighborhood/abusers of restroom cleanliness out, and that he

did not keep a list of abusers of restroom cleanliness. All of

his excuses at hearing were contrary to Respondent's original

defense to the Human Rights Board and contrary to its Pre -

hearing Statement in this forum. Therefore, language difficulty

or not, Jay Patel was not a credible wit ness even as to his

understandable responses. Also, contrary to their prior legal

position, Mr. and Mrs. Patel denied that neighborhood residency

had any bearing on the case, and this shift as to neighborhood

residency also affects credibility.

54. Respo ndent's shift in justification for denying the

two African - American Petitioners access to the EZ Food

Mart/Chevron restroom from "exclusion of neighborhood residents"

and "exclusion of those on an enemies list of filthy restroom

users" to an excuse that th e restroom was locked to all types of

customers throughout the entire rush hour and/or whenever the

restroom was filthy, suggests a belated revision of the defense,

based on discovery that a blanket exclusion of all neighborhood

residents in a predominantl y African - American neighborhood could

help to prove “pattern discrimination” or "disproportionate

impact discrimination”, instead of merely “disparate treatment

discrimination.”

55. Therefore, having assumed, arguendo , but not ruling,

that Respondent esta blished rebuttable reason(s) for its

apparently discriminatory actions, that reason(s) is deemed

rebutted by Petitioners having shown that the non - discriminatory

reasons asserted in Respondent's case - in - chief were pretextual.

There is sufficient evidence to satisfy Petitioners' burden to

show that Respondent's employee's decision to deny Petitioners

access to the restroom was racially motivated. Laroche v.

Denny's Inc. , supra at 1384.

56. Respondent submits in its post - hearing proposal that

"there was i nsufficient evidence to impute any liability to the

owners of the Chevron." It is true that Sunil and Gira Patel

did testify that they abhorred racial discrimination and had no

knowledge with regard to any racially discriminatory practices

at the store, b ut that testimony does not end their liability.

Although many discrimination cases provide relief for those

employers who publish and display anti - discrimination policies

or who instruct and take pro - active steps to insure that their

middle managers do no t discriminate, that scenario does not

exist here. While the situation may fall short of the Title VII

"known or should have known" standard, Sunil Patel clearly had a

conversation with Jay Patel shortly before Jay Patel's refusals

of access began to esca late and accumulate. During that

conversation, Sunil Patel, as an owner, authorized Jay Patel,

the clerk, to do whatever the clerk felt would "control" the

restroom. The owners are responsible for their employee’s

actions under such circumstances. See B rown v. Capital Circle

Hotel Company d/b/a Sleep Inn , DOAH Case No. 01 - 3882 (RO:

October 17, 2002; FO: March 10, 2003), and the general

principles of the law of agency. See also Restatement 2nd of

Agency Section 219(1); Restatement 3d of Agency Sections 7 .01

and 7.03 (2006). Moreover, the evidence herein does not support

a conclusion that Mr. and Mrs. Patel terminated Jay Patel’s

employment as a remedial measure against discrimination. Their

termination of Jay Patel appears to have been timed to assist

l itigation.

57. Petitioners testified to suffering outrage and

humiliation on April 28, and May 2, 2006. While it is clear

that Mr. Mitchell’s urinating on himself on April 28, 2006, must

have been embarrassing, he partly created that problem by not

going home to use the restroom before continuing to the

drycleaning establishment. There is no corroboration, within

reasonable medical certainty, of any psychological or physical

impairment or disability arising from Respondent's proven

discriminatory acts on either date, and no evidence that either

Petitioner suffered any continuing emotional upheaval after

those dates. Compensation for the brief bad feelings of

April 28, and May 2, 2006, is not recoverable under the

Gainesville City Code or the administrati ve hearing procedures

of Chapters 590 and 760, Florida Statutes.

58. There is no proof that Petitioners lost any income.

Mr. Mitchell testified that he is totally disabled from gainful

employment. There is no evidence concerning Mrs. Mitchell's

employme nt or any loss of wages.

59. Indeed, there is no proof of any "actual damages"

suffered by Petitioners as a result of the three dates at issue

herein.

60. The only measures of damages provided for by the

Gainesville Code are "affirmative relief from the effects of the

practice, including actual damages, equitable and injunctive

relief, and reasonable attorneys fees and costs." The parties

have stipulated to a reasonable fee for Petitioners’ attorney

being $250 per hour for 32.9 hours, which, including tr ial time

for 3.5 hours, amounts to 36.4 hours or $9,100.00. There is no

competent record evidence as to any other costs or attorney’s

fee. ( See Finding of Fact 29.)

RECOMMENDATION

Upon the foregoing Findings of Facts and Conclusions of

Law, it is

RECOM MENDED that the City of Gainesville Human Rights Board

enter a final order that:

(1) Finds Respondent discriminated against Gloria Mitchell

based on her race (African - American);

(2) Finds Respondent discriminated against Arnold Mitchell

based on his ra ce (African - American);

(3) Orders Respondent to post and display a printed anti -

discrimination policy that accords with the language employed at

Article IV, Section 8 - 67 of the City of Gainesville Ordinance

and which provides an address and telephone num ber where the

owners or their agent can be reached to report any alleged

discrimination on their premises;

(4) Authorizes the Gainesville City Attorney to apply to a

Circuit Court for an injunction that prohibits any further

discrimination in accommodati on by the Respondent; and

(5) Awards from Respondent to Petitioners' attorney

$9,100.00, in fees.

DONE AND ENTERED this 29th day of May, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative L aw Judge

Division of Administrative Hearings

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 29th day of May, 2007.

ENDNOTES

1/ Despite the same last name, there is no evidence that the

clerk, Jay Prakash Patel, is related to the owners.

2/ The discrepancy between parts of Mr. and Mrs. Mitchell’s

testimony on the number of res troom stops and denials of access

is minor and immaterial. Memories of husbands and wives are not

always carbon copies.

Mr. Mitchell’s testimony that he had been convicted of a felony

"two - three" times has not been overlooked, but this is a

corrected s tatement not a vacillating one, as represented by

Respondent. There is no evidence that any of Mr. Mitchell's

felony convictions related to a “crime involving dishonest or

false statements” so as to erode Mr. Mitchell’s credibility. If

Respondent wanted to know more or required a more precise

answer, Respondent should have asked Mr. Mitchell what type of

felony or felonies he had been convicted of and precisely how

many times had he been convicted.

3/ There was considerable confusion as to whether eithe r Mr. or

Mrs. Mitchell were positioned outside the store so as to see

this event occur and whether the key was given to the Caucasian

female at this time by a female clerk or by Jay Patel, but

Mr. Mitchell was clear that he heard the request for the key by

the Caucasian female and the transfer of the key to her over a

wire she was wearing, and additionally, both Petitioners and

Respondent proposed, in their respective Proposed Recommended

Orders, that the undersigned find as fact that the key was given

to t he Caucasian female from TV20 at this point in time.

Moreover, Jay Patel never clearly denied handing the key to the

TV20 Caucasian female. His "denial" was essentially to fall

back on his language problems and an inability to remember

anything that occu rred on May 2, 2006, before the TV20 news crew

and others returned en masse to the store after the Caucasian

female came out.

4/ Respondent's unilateral Pre - hearing Statement, filed six

days before the hearing on March 1, 2007, and long after the

event w as investigated by the Gainesville Human Rights Board, is

diametrically different than this trial testimony. The Pre -

hearing Statement states, as part of Respondent’s Statement of

Position, that "A clerk who was working at the store, who no

longer works a t the store, denied people that he believed lived

in the neighborhood who were using the bathroom as their own

private bathroom access to the bathroom." It further states

that “There was a clear non - discriminatory reason given at the

time why access was d enied in that he believed the Mitchells

lived in the neighborhood and were abusing the bathroom

privilege.”

5/ This evidence is again totally different than Respondent’s

initial production of a non - discriminatory reason for alleged

disparate treatment. See n.4.

6/ Respondent appears to desire the inference that if the

female clerk gave the restroom key to Caucasians, she did so as

a mistake due to not understanding Jay Patel's "lock all

customer out policy" or because she alone knew the restroom was

s uddenly clean. This would not be a reasonable inference even

had it been affirmatively established that the female clerk gave

out the key each time.

COPIES FURNISHED:

Michael Massey, Esquire

Massey & Duffy

Post Office Box 256

McIntosh, Florida 32664

Robert A. Rush, Esquire

Marian Rush, Esquire

Rush & Glassman

726 Northeast First Street

Gainesville, Florida 32601

Elizabeth A. Waratuke, Esquire

City of Gainesville

Post Office Box 1110

Gainesville, Florida 32602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Pursuant to Article III Section 8 - 51(l) of the City of

Gainesville Municipal Code each party shall have 15 days from

the date of this Recommended Order to submit written exceptions

to the City of Gainesville Human Rights Board.