07-002847 Burnita Henderson vs. Days Inn I-75 Status: Closed Recommended Order on Thursday, September 27, 2007.

Summary: Petitioner failed to establish a prima facie case of discrimination because she failed to show that someone outside the protected class was treated more favorably.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BURNITA HENDERSON, )

)

Petitioner, )

)

vs. ) Case No. 07 - 2847

)

DAYS INN I - 75, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 13 , 2007, a hea ring was held in Gainesville ,

Florida , pursuant to the authority set forth in Sections

120.569 and 120.57(1), Florida Statutes. The case was

considered by Lisa Shearer Nelso n , Administrative Law Judge.

APPEARANCES

For Petitioner: Burnita Henderson, pro se

5010 Southwest 63d Boulevard

Gainesville, Florida 32608

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respond ent has committed a discriminatory act

with respect to public accommodations in violation of Chapter

760, Florida Statutes, and if so, what remedy should be

provided.

PRELIMINARY STATEMENT

On January 4, 2007, Petitioner filed a complaint with the

Florid a Commission on Human Relations (Commission) , alleging

that she had been discriminated against pursuant to Chapter

760, Florida Statutes. On May 7, 2007, the Commission made a

Notice of Determination: Adverse Inference Cause, pursuant to

Florida Administ rative Code Rule 60Y - 5.003(4), in light of

Respondent's failure to provide any information to the

Commission with respect to the Complaint.

On June 4, 2007, Petitioner filed a Petition for Relief

with the Commission, and on June 26, 2007, the Commission

f orwarded the matter to the Division of Administrative

Hearings for the assignment of an administrative law judge.

The matter was noticed for hearing September 13, 200 7 ,

and proceeded as scheduled. At the time appointed for

hearing, no representative fo r Respondent appeared. A recess

was taken to allow the Respondent an opportunity to make an

appearance in the event that its representative was delayed by

traffic. After a fifteen - minute recess, the hearing was re -

convened and Respondent did not appear. Petitioner proceeded

with her case. At the close of evidence, Respondent still had

not appeared for the hearing.

The proceedings were recorded but not transcribed. The

parties were given until September 24, 2007, to file proposed

recommended orders. P etitioner filed a Proposed Recommended

Order which has been carefully considered in the preparation

of this Recomme nded Order. No submission was received from

Respondent.

FINDINGS OF FACT

1. Petitioner is an African - American woman living in the

Gainesvi lle area. She is married and has children.

2. On November 15, 2006, Petitioner went to the Days Inn

at 7516 Newberry Road to make a reservation for her mother and

sister. She was dressed casually and had her children with

her.

3. When she arrived at th e Days Inn, she spoke with John

Osley , who was later identified as the manager of the hotel,

and asked if all the rooms were entered from the outside. He

told her that the Newberry Road hotel had outside rooms only

but that the Days Inn on Archer Road had internal corridors.

4. Mr. Osley asked what dates she wanted to reserve .

S he told him November 23 - 2 4 , which was Thanksgiving Day and

the day after. Mr. Osley told her there were no rooms

available those days because the hotel was the host hotel for

a race - car event. She asked about cancellations and he told

her to call back closer to the date s she needed the room to

see if there were any . He gave her a business card for a

person at the front desk. Upon her request, he allowed her to

look at one of the rooms. Petitioner thanked Mr. Osley and

left.

5. After she left the hotel, she felt that she had not

been treated appropriately. That evening, she checked on the

Days Inn internet website to see if any rooms at the Newberry

Road location were availa ble online for November 23 - 24 . She

was able to make a reservation for the desired days via the

internet.

6. Ultimately, her mother opted to stay at another

hotel. As a result, the reservation at the Days Inn was

canceled.

7. Petitioner was angry becaus e she felt she had been

mistreated at the hotel, and wrote to Joseph Kante, who m she

identified as being in a management position for Days Inn .

She also e - mailed him and within 24 - hours, she received an

apology from him. However, according to Petitioner, Mr. Kante

indicated that each Days Inn is responsible for itself and the

person she needed to speak to regarding the Days Inn on

Newberry Street was John Osley.

8. Petitioner returned to the Days Inn on Newberry Road

in an effort to speak with Mr. Osley, and also called the

hotel. Each time, Mr. Osley was not present and she never

spoke with him about her concerns. After her attempts to

reach him were unsuccessful, she filed her comp laint with the

Commission.

9. No evidence was presented regarding any other person

of any race seeking a room at the same time as Ms. Henderson

who was able to reserve a room when she could not.

10. No evidence was presented indicating that Mr. Osley

was not being truthful when he state d that no rooms were

available when Ms . Henderson originally sought to reserve a

room .

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1),

Florida Statutes.

12. Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

13. Petitioner's complaint is based on a perceived

violation of Section 760.08, Florida Statutes, which requires

all persons to be entitled to the full and equal enjoyment of

goods, services, facilities, privileges, advantages, and

accommodations of any place of public ac commodation, as

defined in Chapter 760, Florida Statutes, without

discrimination or segregation on the ground of race, color,

national origin, sex, handicap, familial status or religion.

14. Pursuant to Section 760.02(11), Florida Statutes,

"public accom modations" is defined as follows:

(11) "Public accommodations" means places

of public accommodation, lodgings,

facilities principally engaged in selling

food for consumption on the premises,

gasoline stations, places of exhibition or

entertainment, and ot her covered

establishments. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

(a) Any inn, hotel, motel, or other

establishment which provides lodging to

transient guests, other than an

establishment located within a building

which contains not more than four rooms for

rent or hire and which is actually occupied

by the proprietor

of such establishment as his or her

residence.

(b) Any restaurant, cafeteria, lunchroom,

lunc h counter, soda fountain, or other

facility principally engaged in selling

food for consumption on the premises,

including, but not limited to, any such

facility located on the premises of any

retail establishment, or any gasoline

station.

(c) Any motion picture theater, theater,

concert hall, sports arena, stadium, or

other place of exhibition or entertainment.

(d) Any establishment which is physically

located within the premises of any

establishment otherwise covered by this

subsection, or within the pr emises of which

is physically located any such covered

establishment.

15. Respondent is a place of public accommodation as

defined by Section 760.02(11)(a), Florida Statutes.

1 6 . Section 760.11(1), Florida Statutes, provides the

procedural requirement s for filing a complaint alleging

violations of Chapter 760. It states in pertinent part:

(1) Any person aggrieved by a violation of

ss. 760.01 - 760.10 may file a complaint with

the commission within 365 days of the

alleged violation, naming the employer . .

. and describing the violation. . . . The

complaint shall contain a short and plain

statement of the facts describing the

violation and the relief sought.

17 . The Florida Civil Rights Act (FCRA) is patterned

after Title VII, and federal case law d ealing with Title VII

is applicable to cases arising under the Florida Act . Florida

State University v. Sondel , 685 So. 2d 923, 925n.1 (Fla. 1st

DCA 1996) ; Velez v. Levy World Limited Partnership , 182 Fed.

Appx. 929, 932 (11th Cir. 2006).

18. In order t o prove discrimination violative of

Section 760.08, Florida Statutes, Petitioner may demonstrate

her case through direct evidence of discrimination; pattern

and practice of discrimination; or circumstantial evidence of

discrimination. Afkhami v. Carnival Cruise Lines , 305 F.

Supp. 2d 1308, 1320 ( S.D. Fla. 2004). Direct evidence of

discrimination, which is "composed of only the most blatant

remarks, where intent could be nothing other than to

discriminate," Schoenfeld v. Babbitt , 168 F.3d 1257, 1266

(11th Cir. 1999), is not at issue in this case. Likewise,

Petitioner has not submitted evidence of a pattern and

practice of discrimination. Akfhami , 305 F. Supp. 2d at 1321

(plaintiff must present evidence of a pattern and practice of

differential treatment a ffecting other members of his or her

class that is systematic as opposed to isolated, sporadic

incidents).

19. In order to demonstrate discrimination by indirect

of circumstantial evidence, Petitioner must establish : 1)

that she is a member of a protect ed class; 2) that she

attempted to contract for services and to afford herself the

full benefits and enjoyment of a public accommodation; 3) that

she was denied the right to contract for those services and

thus denied the benefits and enjoyments of same; a nd 4) that

similarly situated persons who were not members of the

protected class received full benefits or enjoyment, or were

treated better. Foster v. Howard University Hospital , No. 06 -

244, 2006 U.S. Dist. LEXIS 74512 (D.C. 2006); Afkhami , 305 F.

Supp. 2d at 1322; Laroche v. Denny's, Inc. , 62 F. Supp. 2d

1375, 1382 (S.D. 1999).

20. Petitioner has not established a prima facie case.

While Petitioner proved that she went to Respondent's hotel

and was unable to reserve a room when appearing in person, s he

presented no evidence that a person who was not a member of

her race w as able to secure a reservation at the Days Inn.

21. Petitioner did present evidence that she attempted

and was successful in securing a reservation through the

internet, presumab ly in order to show that when the race of

the person seeking the reservation is not known,

accommodations were available. However, "similarly situated"

means similar in all relevant respects. Afkhami , 305 F. Supp.

2d at 1322; Holifield v. Reno , 115 F.3d 1555, 1563 11th Cir.

1997). In this case, Petitioner would have to show that a

person of another race presented to the front desk at the Days

Inn when she was there and was given a reservation for

November 23 - 24 when she was not. This is especially cruci al

in dealing with matters such as provision of hotel rooms,

because of the fluid nature of reservations and cancellations

for such rooms . Securing a reservation through the internet

sometime later does not satisfy the requirement to show that

someone els e was treated better then Petitioner.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered that dismisses Petitioner's

claim.

D ONE AND ENTERED this 27th da y of September , 200 7 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 A palachee 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 27th day of September, 2007 .

COPIES FURNISHED:

Burnita Henderson

5010 Southwest 63rd Boulevard

Gainesville, Florida 32608

John Osley

Days Inn I - 75

7516 Newberry Road

Gainesv ille, Florida 32606

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

T allahassee, 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.