08-000931 Mattie Lomax vs. Walmart Stores East Status: Closed Recommended Order on Wednesday, September 10, 2008.

Summary: Petitioner, who was removed from store by an off-duty police officer after creating a disturbance, failed to prove she was a victim of public accommodation discrimination based on her race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTIE LOMAX, )

)

Petitioner, )

)

vs. ) Case No. 08-0931

)

WAL-MART STORES EAST, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

June 23, 2008, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Mattie Lomax, pro se

Post Office Box 015262

Miami, Florida 33101

For Respondent: Scott A. Forman, Esquire

Linda Noel Fleurimond, Esquire

Littler Mendelson, P.C.

Two South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in

Petitioner's Public Accommodations Complaint of Discrimination

and, if so, what relief should the Florida Commission on Human

Relations grant Petitioner.

PRELIMINARY STATEMENT

On April 26, 2007, Mattie Lomax filed with the Florida

Commission on Human Relations (FCHR) a Public Accommodations

Complaint of Discrimination, alleging that she was "harassed and

denied service because of her race (black)" at the Hialeah

Gardens Super Wal-Mart on March 27, 2007, in violation of

"Florida Statute, Chapter 509/760."

On January 24, 2008, following the completion of its

investigation of the complaint, the FCHR, through its Executive

Director, issued a Notice of Determination: No Cause, advising

that a determination had been made that there was "no reasonable

cause to believe that a public accommodation violation [had]

occurred."

Petitioner, on or about February 14, 2008, filed a Petition

for Relief with the FCHR.

On February 21, 2008, the FCHR referred the matter to DOAH

for the assignment of a DOAH administrative law judge to conduct

a hearing on the allegations of public accommodation

discrimination made by Petitioner in her complaint against

Respondent.

As noted above, the final hearing in this case was held on

June 23, 2008. 2 Two witnesses testified at the hearing:

Petitioner and Lieutenant Carlos Fojo of the Hialeah Gardens

Police Department. In addition, 13 exhibits (Petitioner's

Exhibit 4, and Respondent's Exhibits 1 through 10, 15, and 17)

were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the

undersigned established the deadline for filing proposed

recommended orders at 30 days from the date of the filing of the

hearing transcript with DOAH.

On June 30, 2008, Petitioner filed a motion requesting that

the evidentiary record in this case be reopened for purposes of

allowing her to change testimony she gave at the final hearing.

The motion was denied, by order issued July 9, 2008, because the

"motion d[id] not contain a persuasive explanation as to why the

relief requested therein should be granted."

The Transcript of the final hearing (consisting of one

volume) was filed with DOAH on July 24, 2008.

On August 20, 2008, the parties filed a motion jointly

requesting a two-week extension of the deadline for filing

proposed recommended orders in the instant case. The motion was

granted, and the proposed recommended order filing deadline was

extended to September 8, 2008.

Petitioner and Respondent timely filed their Proposed

Recommended Orders on September 8, 2008.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is a black woman.

2. On March 27, 2007, Petitioner went shopping at the Wal-

Mart Supercenter located at 9300 Northwest 77th Avenue in

Hialeah Gardens, Florida (Store).

3. This was Petitioner's "favorite store." She had

shopped there every other week for the previous four or five

years and had had a positive "overall [shopping] experience."

At no time had she ever had any problem making purchases at the

Store.

4. At around 5:00 p.m. on March 27, 2007, Petitioner

entered the Store's electronics department to look for two black

ink cartridges for her printer. In her cart were several items

she had picked up elsewhere in the store (for which she had not

yet paid).

5. Because the cartridges she needed were located in a

locked display cabinet, Petitioner went to the counter at the

electronics department to ask for assistance.

6. Maria Castillo was the cashier behind the counter. She

was engaged in a "casual conversation," punctuated with

laughter, with one of the Store's loss prevention officers,

Jessy Fair, as she was taking care of a customer, Carlos Fojo, a

non-black Hispanic off-duty lieutenant with the Hialeah Gardens

Police Department.

7. Lieutenant Fojo was paying for a DVD he intended to use

as a "training video." The DVD had been in a locked display

cabinet in the electronics department. A sales associate had

taken the DVD out of the cabinet for Lieutenant Fojo.

8. It was Store policy to require customers seeking to

purchase items in locked display cabinets in the electronics

department to immediately pay for these items at the electronics

department register. Lieutenant Fojo was making his purchase in

accordance with that policy.

9. Two Store sales associates, Carlos Espino and Sigfredo

Gomez, were near the counter in the electronics department when

Petitioner requested assistance.

10. In response to Petitioner's request for help,

Mr. Espino and Mr. Gomez went to the locked display cabinet to

get two black ink cartridges for Petitioner, with Petitioner

following behind them.

11. Ms. Castillo and Mr. Fair remained at the counter and

continued their lighthearted conversation, as Ms. Castillo was

finishing up with Lieutenant Fojo.

12. Petitioner was offended by Ms. Castillo's and

Mr. Fair's laughter. She thought that they were laughing at her

because she was black (despite her not having any reasonable

basis to support such a belief). She turned around and loudly

and angrily asked Ms. Castillo and Mr. Fair what they were

laughing at. After receiving no response to her inquiry, she

continued on her way behind Mr. Espino and Mr. Gomez to the

display cabinet containing the ink cartridges.

13. When Mr. Espino arrived at the cabinet, he unlocked

and opened the cabinet door and removed two black ink

cartridges, which he handed to Mr. Gomez.

14. Petitioner took the cartridges from Mr. Gomez and

placed them in her shopping cart.

15. Mr. Espino tried to explain to Petitioner that, in

accordance with Store policy, before doing anything else, she

needed to go the register in the electronics department and pay

for the ink cartridges.

16. Petitioner responded by yelling at Mr. Espino and

Mr. Gomez. In a raised voice, she proclaimed that she was "no

thief" and "not going to steal" the ink cartridges, and she

"repeated[ly]" accused Mr. Espino and Mr. Gomez of being

"racist."

17. Instead of going directly to the register in the

electronics department to pay for the cartridges (as she had

been instructed to do by Mr. Espino), Petitioner took her

shopping cart containing the ink cartridges and the other items

she intended to purchase and "proceeded over to the CD aisle" in

the electronics department. Mr. Espino "attempt[ed] to speak to

her," but his efforts were thwarted by Petitioner's "screaming

at [him and Mr. Gomez as to] how racist they were."

18. Lieutenant Fojo, who had completed his DVD purchase,

heard the commotion and walked over to the "CD aisle" to

investigate.

19. When he got there, he approached Petitioner and asked

her, "What's the problem?" She responded, "Oh, I see you too

are racist and I see where this is coming from."

20. Lieutenant Fojo went on to tell Petitioner the same

thing that Mr. Espino had: that the ink cartridges had to be

taken to the register in the electronics department and paid for

immediately ("just like he had paid for his [DVD]").

21. Petitioner was defiant. She told Lieutenant Fojo that

she would eventually pay for the cartridges, but she was "still

shopping."

22. Moreover, she continued her rant that Lieutenant Fojo

and the Store employees were "racist."

23. "[C]ustomers in the area were gathering" to observe

the disturbance.

24. To avoid a further "disrupt[ion] [of] the normal

business affairs of the [S]tore," Lieutenant Fojo directed

Petitioner to leave and escorted her outside the Store.

25. In taking such action, Lieutenant Fojo was acting

solely in his capacity as a law enforcement officer with the

Hialeah Gardens Police Department.

26. Once outside the Store, Lieutenant Fojo left

Petitioner to go to his vehicle.

27. Petitioner telephoned the Hialeah Gardens Police

Department to complain about the treatment she had just received

and waited outside the Store for a police officer to arrive in

response to her call.

28. Officer Lawrence Perez of the Hialeah Gardens Police

Department responded to the scene and met Petitioner outside the

Store.

29. After conducting an investigation of the matter,

Officer Perez issued Petitioner a trespass warning, directing

that she not return to the Store.

30. At no time subsequent to the issuance of this trespass

warning has Petitioner returned the Store (although she has

shopped at other Wal-Mart stores in the area).

31. While Petitioner has been deprived of the opportunity

to shop at the Store, it has been because of action taken, not

by any Store employee, but by Hialeah Gardens law enforcement

personnel. Moreover, there has been no showing that

Petitioner's race was a motivating factor in the taking of this

action. 3

CONCLUSIONS OF LAW

32. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes, and Section

509.092, Florida Statutes. § 760.01(1), Fla. Stat.

33. The Act was "patterned after Title VII of the Civil

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well

as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §

623. Federal case law interpreting [these federal statutory

provisions] is applicable to cases arising under the Florida

Act." Florida State University v. Sondel , 685 So. 2d 923, 925

(Fla. 1st DCA 1996); see also Velez v. Levy World L.P. , 182 Fed.

Appx. 929, 932 (11th Cir. 2006)("Plaintiffs' failure to

establish a prima facie federal case of public accommodations

discrimination also applies to their state-law claims under Fla.

Stat. §§ 509.092, 760.11."); and Stevens v. Steak N Shake, Inc. ,

35 F. Supp. 2d 882, 886 (M.D. Fla. 1998)("[T]his Court looks to

established federal public accommodation law in order to

determine the meaning of the term 'such refusal may not be based

upon race, creed, [or] color. . .' in Fla. Stat. § 509.092, and

to determine the elements of Stevens' and Harris' civil rights

claims under the Florida statute.").

34. "The general purposes of the [Act] are to secure for

all individuals within the state freedom from discrimination

because of race, color, religion, sex, national origin, age,

handicap, or marital status and thereby to protect their

interest in personal dignity, to make available to the state

their full productive capacities, to secure the state against

domestic strife and unrest, to preserve the public safety,

health, and general welfare, and to promote the interests,

rights, and privileges of individuals within the state."

§ 760.01(2), Fla. Stat.

35. The FCHR is empowered "[t]o receive, initiate,

investigate, seek to conciliate, hold hearings on, and act upon

complaints alleging any discriminatory practice, as defined by

the Florida Civil Rights Act of 1992." § 760.06(5), Fla. Stat.

If it finds, following an administrative hearing conducted

pursuant to Sections 120.569 and 120.57, Florida Statutes, that

a "discriminatory practice" has been committed, it must issue a

final order "prohibiting the practice and providing affirmative

relief from the effects of the practice." 4 § 760.11(6), Fla.

Stat. A prerequisite to obtaining such relief is the filing of

a timely complaint. § 760.11(1), Fla. Stat.

36. "[T]o prevent circumvention of the [FCHR's]

investigatory and conciliatory role, only those claims that are

fairly encompassed within a [timely-filed complaint] can be the

subject of [an administrative hearing conducted pursuant to

Sections 120.569 and 120.57, Florida Statutes]" and any

subsequent FCHR award of relief to the complainant. Chambers v.

American Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

37. A "discriminatory practice," as that term is used in

the Act, "means any practice made unlawful by the [Act]."

§ 760.02(4), Fla. Stat.

38. Such "discriminatory practices" include those

described in Section 509.092, Florida Statutes (dealing with

"public lodging establishments" and "public food service

establishments") and Section 760.08, Florida Statutes (dealing

with "places of public accommodation"), which provide as

follows:

§ 509.092. Public lodging establishments

and public food service establishments;

rights as private enterprises

Public lodging establishments and public

food service establishments 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, or 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.

§ 760.08. Discrimination in places of

public accommodation

All persons shall be entitled to the full

and equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation, as defined in this chapter,

without discrimination or segregation on the

ground of race, color, national origin, sex,

handicap, familial status, or religion.

39. A "public lodging establishment," as that term is used

in Section 509.092, Florida Statutes, is defined in Section

509.013,(4), Florida Statutes, as follows:

(a) "Public lodging establishment" means

any unit, group of units, dwelling,

building, or group of buildings within a

single complex of buildings, which is rented

to guests more than three times in a

calendar year for periods of less than 30

days or 1 calendar month, whichever is less,

or which is advertised or held out to the

public as a place regularly rented to

guests. License classifications of public

lodging establishments, and the definitions

therefor, are set out in s. 509.242. For

the purpose of licensure, the term does not

include condominium common elements as

defined in s. 718.103.

(b) The following are excluded from the

definition in paragraph (a):

1. Any dormitory or other living or

sleeping facility maintained by a public or

private school, college, or university for

the use of students, faculty, or visitors;

2. Any hospital, nursing home, sanitarium,

assisted living facility, or other similar

place;

3. Any place renting four rental units or

less, unless the rental units are advertised

or held out to the public to be places that

are regularly rented to transients;

4. Any unit or group of units in a

condominium, cooperative, or timeshare plan

and any individually or collectively owned

one-family, two-family, three-family, or

four-family dwelling house or dwelling unit

that is rented for periods of at least 30

days or 1 calendar month, whichever is less,

and that is not advertised or held out to

the public as a place regularly rented for

periods of less than 1 calendar month,

provided that no more than four rental units

within a single complex of buildings are

available for rent;

5. Any migrant labor camp or residential

migrant housing permitted by the Department

of Health; under ss. 381.008-381.00895; and

6. Any establishment inspected by the

Department of Health and regulated by

chapter 513.

40. A "public food service establishment," as that term is

used in Section 509.092, Florida Statutes, is defined in Section

509.013(5), Florida Statutes, as follows:

(a) "Public food service establishment"

means any building, vehicle, place, or

structure, or any room or division in a

building, vehicle, place, or structure where

food 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.

(b) The following are excluded from the

definition in paragraph (a):

1. Any place maintained and operated by a

public or private school, college, or

university:

a. For the use of students and faculty; or

b. Temporarily to serve such events as

fairs, carnivals, and athletic contests.

2. Any eating place maintained and operated

by a church or a religious, nonprofit

fraternal, or nonprofit civic organization:

a. For the use of members and associates;

or

b. Temporarily to serve such events as

fairs, carnivals, or athletic contests.

3. Any eating place located on an airplane,

train, bus, or watercraft which is a common

carrier.

4. Any eating place maintained by a

hospital, nursing home, sanitarium, assisted

living facility, adult day care center, or

other similar place that is regulated under

s. 381.0072.

5. Any place of business issued a permit or

inspected by the Department of Agriculture

and Consumer Services under s. 500.12.

6. Any place of business where the food

available for consumption is limited to ice,

beverages with or without garnishment,

popcorn, or prepackaged items sold without

additions or preparation.

7. Any theater, if the primary use is as a

theater and if patron service is limited to

food items customarily served to the

admittees of theaters.

8. Any vending machine that dispenses any

food or beverages other than potentially

hazardous foods, as defined by division

rule.

9. Any vending machine that dispenses

potentially hazardous food and which is

located in a facility regulated under s.

381.0072.

10. Any research and development test

kitchen limited to the use of employees and

which is not open to the general public.

41. "Public accommodations," as that term is used in

Section 760.08, Florida Statutes, is defined in Section

760.02(11), Florida Statutes, as follows:

"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 other 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,

lunch 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 premises of which

is physically located any such covered

establishment, and which holds itself out as

serving patrons of such covered

establishment.

42. 42 U.S.C. § 2000a, the federal counterpart of Section

760.08, Florida Statutes, contains a substantially identical

description of the term "place of public accommodation." It

provides, in pertinent part, as follows:

(a) Equal access. All persons shall be

entitled to the full and 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 race, color,

religion, or national origin.

(b) Establishments affecting interstate

commerce or supported in their activities by

State action as places of public

accommodation; lodgings; facilities

principally engaged in selling food for

consumption on the premises; gasoline

stations; places of exhibition or

entertainment; other covered establishments.

Each of the following establishments which

serves the public is a place of public

accommodation within the meaning of this

title [42 U.S.C. §§ 2000a-2000a-6] if its

operations affect commerce, or if

discrimination or segregation by it is

supported by State action:

(1) 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 five rooms for

rent or hire and which is actually occupied

by the proprietor of such establishment as

his residence;

(2) any restaurant, cafeteria, lunchroom,

lunch 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;

(3) any motion picture house, theater,

concert hall, sports arena, stadium or other

place of exhibition or entertainment; and

(4) any establishment (A)(i) which is

physically located within the premises of

any establishment otherwise covered by this

subsection, or (ii) within the premises of

which is physically located any such covered

establishment, and (B) which holds itself

out as serving patrons of such covered

establishment.

Federal courts construing the language of 42 U.S.C. § 2000a(b)

have held that retail establishments not selling food for on-

premises consumption are not "places of public accommodation"

covered by 42 U.S.C. § 2000a. See , e.g. , Rousseve v. Shape Spa

for Health and Beauty, Inc. , 516 F.2d 64, 70 (5th Cir. 1975)("In

enacting the public accommodations section of the 1964 Act,

Congress did not intend to regulate all establishments that it

had the power to regulate. Broad coverage of retail

establishments was originally contemplated, H.R. 7152, but that

coverage was deleted when the House Judiciary Committee reported

the bill. . . . Congress intended to limit coverage to 'those

business establishments which on the basis of current experience

have proven to be the most important sources of discrimination

and, therefore, the focal point of most discriminations.'");

Taylor v. Volkswagen of America, Inc. , No. C07-1849RSL, 2008

U.S. Dist. LEXIS 20298 *6-7 (W.D. Wash. March 3, 2008)("As for

the dealerships, it does not appear that Congress intended to

cover retail establishments. First, the definition section

above includes a detailed list of establishments, none of which

is a retail store. Second, the definition includes cafeterias,

lunchrooms, and any facility 'located on the premises of any

retail establishment . . . .' The clear implication of this

provision is that Congress did not intend to include retail

establishments. If it had, there would be no need to state that

restaurants within retail establishments are covered.");

Brackens v. Big Lots, Inc. , No. A-06-CA-532, 2007 U.S. Dist.

LEXIS 5021 *5-7 (W.D. Tex. January 24, 2007)("The statutory

framework of Title II is such that retail stores, in and of

themselves, are specifically not included under Title II. 42

U.S.C. § 2000a(b). . . . Big Lots, a retail store that is not

'principally engaged in selling food for consumption on

premises' 42 U.S.C. § 2000a(b)(2), is not covered by Title

II."); Hickman v. Burlington Coat Factory of Kansas, LLC , No.

07-2101-JWL , 2007 U.S. Dist. LEXIS 38751 *5 (D. Kan. May 24,

2007)("BCF, as a retail store, is simply not a 'public

accommodation' within the meaning of 42 U.S.C. § 2000a.");

Darden v. E-Z Mart Stores, Inc. , No. 2-05-CV-64 (TJW), 2006 U.S.

Dist. LEXIS 4353 *10-11 (E.D. Tex. January 20, 2006)("It is

undisputed that E-Z Mart is a convenience store. Further,

Plaintiffs admitted in their depositions that E-Z Mart was not a

restaurant and that food was not served for consumption on the

premises. In light of Plaintiffs' own admissions and the weight

of authority establishing that convenience stores are not

principally engaged in selling food for consumption on the

premises, E-Z Mart is therefore not a place of public

accommodation. Accordingly, the Court grants Defendants' Motion

for Summary Judgment regarding Plaintiffs' claims of violations

of 42 U.S.C. § 2000a."); Kelly v. Yorktown Police Department ,

No. 05 Civ. 6984 (DC), 2006 U.S. Dist. LEXIS 83223 *15 (S.D.

N.Y. November 13, 2006)("The text of § 2000a does not explicitly

include retail establishments. Case law confirms that retail

stores are not places of public accommodation with the meaning

of § 2000a."); McCrea v. Saks, Inc. , No. 00-CV-1936, 2000 U.S.

Dist. LEXIS 18990 *5 (E.D. Pa. December 2, 2000)("It is clear

that Congress did not intend for retail establishments such as

Saks to be covered by this section."); Gigliotti v. Wawa Inc. ,

NO. 99-3432, 2000 U.S. Dist. LEXIS 1021 *4 (E.D. Pa. February 4,

2000)("Retail establishments are not 'places of public

accommodation' under § 2000a."); Haywood v. Sears, Roebuck, &

Co. , No. 7:94-CV-106-BR2, 1996 U.S. Dist. LEXIS 11954 *7 (E.D.

N.C. July 18, 1996)("As to plaintiffs' claim under § 2000a, the

court concludes that defendant's retail store is not a place of

'public accommodation' as defined by 2000a(b)."); and Priddy v.

Shopko Corp. , 918 F. Supp. 358, 359 (D. Utah 1995)("It is clear

that Congress did not intend for retail establishments such as

Shopko to be included in § 2000a. Section 2000a(b)(2) lists

cafeterias, lunchrooms, etc. as establishments which are

considered as 'places of public accommodation.' This subsection

goes on to include any facility (e.g., restaurants) '. . .

located on the premises of any retail establishment . . . .'

The clear implication of this provision is that Congress did not

intend to include retail establishments--thus the need to make

clear that restaurant type facilities within a retail

establishment were covered under 42 U.S.C. § 2000a(b)(2). If

retail establishments were also intended to be covered, there

would be no need for this provision.").

43. In the Public Accommodation Complaint of

Discrimination she filed with FCHR in the instant case,

Petitioner alleged that on March 27, 2007, while she was

attempting to shop at the Hialeah Gardens Super Wal-Mart,

Respondent engaged in practices made unlawful by the Act by

"harass[ing] [her] and den[ying] [her] service because of [her]

race (black)."

44. The burden was on Petitioner to prove by a

preponderance of the evidence adduced at the final hearing that

she was the victim of such public accommodation discrimination

at the hands of Respondent, as alleged in her complaint. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996)("'The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.'"); Espinoza v. Department

of Business and Professional Regulation, Florida Board of

Professional Engineers , 739 So. 2d 1250, 1251 (Fla. 3rd DCA

1999)("The general rule is that, apart from statute, the burden

of proof is on the party asserting the affirmative of an issue

before an administrative tribunal."); and Florida Department of

Health and Rehabilitative Services v. Career Service Commission ,

289 So. 2d 412, 415 (Fla. 4th DCA 1974)("As a general rule the

comparative degree of proof by which a case must be established

is the same before an administrative tribunal as in a judicial

proceeding - that is, a preponderance of the evidence.").

45. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

46. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa-De Varadero

Restaurant , No. 02-2502, slip op. at 15 n.9 (Fla. DOAH

February 19, 2003)(Recommended Order); see also Wilson v. B/E

Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004)("Direct

evidence is 'evidence, that, if believed, proves [the] existence

of [a] fact without inference or presumption.'"). "If the

[complainant] offers direct evidence and the trier of fact

accepts that evidence, then the [complainant] has proven

discrimination." Maynard v. Board of Regents , 342 F.3d 1281,

1289 (11th Cir. 2003).

47. "[D]irect evidence is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor. . . .

If an alleged statement at best merely suggests a discriminatory

motive, then it is by definition only circumstantial evidence."

Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

Likewise, a statement "that is subject to more than one

interpretation . . . does not constitute direct evidence."

Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189 (11th Cir.

1997).

48. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

49. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, "the Supreme

Court's shifting-burden analysis adopted in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 802-804, 36 L. Ed. 2d 668, 93 S.

Ct. 1817 (1973), . . . is applicable." Laroche v. Denny's Inc .,

62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999); see also Feacher v.

Intercontinental Hotels Group , No. 06-CV-877, 2008 U.S. Dist.

LEXIS 43779 *21 (N.D. N.Y June 3, 2008)("Section 2000a claims

are analyzed similarly, also using the McDonnell-Douglas burden-

shifting framework when the case is based upon circumstantial

evidence of discrimination."). "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination.[ 5 ] If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the [respondent] to 'articulate' a legitimate, non-

discriminatory reason for its action.[ 6 ] If the [respondent]

successfully articulates such a reason, then the burden shifts

back to the [complainant] to show that the proffered reason is

really pretext for unlawful discrimination." Schoenfeld , 168

F.3d at 1267 (citations omitted).

50. "The analysis of pretext focuses only on what the

decisionmaker, and not anyone else, sincerely believed." Little

v. Illinois Department of Revenue , 369 F.3d 1007, 1015 (7th Cir.

2004).

51. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the [respondent] intentionally discriminated against

the [complainant] remains at all times with the [complainant]."

EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007)("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times."); and Brand v. Florida Power Corp. , 633 So. 2d

504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant

satisfies its burden of production showing legitimate,

nondiscriminatory reasons for the action taken is immaterial

insofar as the ultimate burden of persuasion is concerned, which

remains with the plaintiff.").

52. Where the administrative law judge does not halt the

proceedings "for lack of a prima facie case and the action has

been fully tried, it is no longer relevant whether the

[complainant] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . . [W]hether or not [the

complainant] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green

v. School Board of Hillsborough County , 25 F.3d 974, 978 (11th

Cir. 1994)(citation omitted); see also Aikens , 460 U.S. at 713-

715 ("Because this case was fully tried on the merits, it is

surprising to find the parties and the Court of Appeals still

addressing the question whether Aikens made out a prima facie

case. We think that by framing the issue in these terms, they

have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W]hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejection

[as a candidate for promotion], the factfinder must then decide

whether the rejection was discriminatory within the meaning of

Title VII. At this stage, the McDonnell-Burdine presumption

'drops from the case,' and 'the factual inquiry proceeds to a

new level of specificity.' After Aikens presented his evidence

to the District Court in this case, the Postal Service's

witnesses testified that he was not promoted because he had

turned down several lateral transfers that would have broadened

his Postal Service experience. The District Court was then in a

position to decide the ultimate factual issue in the case. . . .

Where the defendant has done everything that would be required

of him if the plaintiff had properly made out a prima facie

case, whether the plaintiff really did so is no longer relevant.

The district court has before it all the evidence it needs to

decide whether 'the defendant intentionally discriminated

against the plaintiff.'")(citation omitted); Beaver v. Rayonier,

Inc. , 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter,

Rayonier argues it is entitled to judgment as a matter of law

because Beaver failed to establish a prima facie case. That

argument, however, comes too late. Because Rayonier failed to

persuade the district court to dismiss the action for lack of a

prima facie case and proceeded to put on evidence of a non-

discriminatory reason--i.e., an economically induced RIF--for

terminating Beaver, Rayonier's attempt to persuade us to revisit

whether Beaver established a prima facie case is foreclosed by

binding precedent."); and Carmichael v. Birmingham Saw Works ,

738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed

his attack on the trial court's findings largely in terms of

whether the plaintiff made out a prima facie case of

discrimination. We are mindful, however, of the Supreme Court's

admonition that when a disparate treatment case is fully tried,

as this one was, both the trial and the appellate courts should

proceed directly to the 'ultimate question' in the case:

'whether the defendant intentionally discriminated against the

plaintiff.'").

53. The instant case was "fully tried," with Petitioner

and Respondent having both presented evidence.

54. A review of the evidentiary record reveals that

Petitioner failed to meet her burden of proving that Respondent

engaged in the race-based public accommodation discrimination

that she alleged in her complaint. Her proof was lacking in

three respects.

55. Firstly, Petitioner did not establish that the Wal-

Mart store at which she was allegedly "harassed and denied

service because of [her] race" was a "public lodging

establishment" or a "public food service establishment" (as

described by Section 509.092, Florida Statutes) or a "place of

public accommodation" (as described in Section 760.08, Florida

Statutes). There was no evidence presented that the goods

offered for sale at the store included food intended for on-

premises consumption. Absent such proof, the record is

insufficient to support a finding that the store was a retail

establishment covered by the Act. Accordingly, Respondent could

not have committed the public accommodation discrimination

alleged in Petitioner's complaint.

56. Secondly, there is no proof that Respondent or anyone

acting on its behalf deprived Petitioner of the opportunity to

shop at, or otherwise enjoy the facilities and services, of the

Store on the same terms as other members of the public. It is

true that, on March 27, 2007, Petitioner was escorted from the

Store before completing her purchases and told not to return;

however, this removal and banning of Petitioner from Store was

action taken, not by any Store employee or agent, but by Hialeah

Gardens law enforcement personnel.

57. Thirdly, there has been no showing made that at any

time material to the instant case Petitioner was discriminated

against because of her race. While Petitioner may sincerely

believe that she was the victim of such discrimination, she

failed to present sufficient evidence to back up this belief.

"Mere speculation and conjecture [on a complainant's part

regarding the motives of others] are wholly inadequate to

support a claim of intentional discrimination." Barber v. City

of Conover , 73 F. Supp. 2d 576, 587 (W.D. N.C. 1999).

58. In light of the foregoing, Petitioner's complaint

should be dismissed in its entirety.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the FCHR issue a final order dismissing

Petitioner's Public Accommodations Complaint of Discrimination .

DONE AND ENTERED this 10th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September, 2006.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2007).

2 The hearing was originally scheduled to commence on April 28,

2008, but was continued twice (the first time at Respondent's

request and the second time at Petitioner's request).

3 Petitioner would have been able to continue shopping at the

Store had she, during her March 27, 2007, visit, simply followed

the instructions she had been given regarding payment for the

ink cartridges and not created a scene.

4 The FCHR, however, has no authority to award monetary relief

for non-quantifiable damages. See City of Miami v. Wellman , 976

So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on-quantifiable

damages . . . are uniquely within the jurisdiction of the

courts."); and Simmons v. Inverness Inn , No. 93-2349, 1993 Fla.

Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27,

1993)(Recommended Order)("In this case, petitioner does not

claim that she suffered quantifiable damages, that is, damages

arising from being terminated from employment, or from being

denied a promotion or higher compensation because of her race.

Rather, through argument of counsel she contends that she

suffered pain, embarrassment, humiliation, and the like (non-

quantifiable damages) because of racial slurs and epit[he]ts

made by respondents. Assuming such conduct occurred, however,

it is well-settled in Florida law that an administrative agency

(as opposed to a court) has no authority to award money damages.

See , e.g. , Southern Bell Telephone & Telegraph Co. v. Mobile

America Corporation, Inc. , 291 So. 2d 199 (Fla. 1974); State,

Dept. of General Services v. Biltmore Construction Co. , 413 So.

2d 803 (Fla. 1st DCA 1982); Laborers International Union of

N.A., Local 478 v. Burroughs , 541 So. 2d 1160 (Fla. 1989). This

being so, it is concluded that the Commission cannot grant the

requested relief, compensatory damages.").

5 Complainants may establish a prima facie case of public

accommodation discrimination by proving 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 accommodation; (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 received full benefits or

enjoyment, or were treated better." Laroche , 62 F. Supp. 2d at

1382. "'Similarly situated' means similar in all relevant

respects." Afkhami v. Carnival Corp. , 305 F. Supp. 2d 1308,

1322 (S.D. Fla. 2004).

6 " To 'articulate' does not mean 'to express in argument.'"

Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th

Cir. 1990). "It means to produce evidence." Id. ; see also

Mont-Ros v. City of West Miami , 111 F. Supp. 2d 1338, 1349 (S.D.

Fla. 2000)("This burden is merely one of production, not

persuasion, and is exceedingly light.").

COPIES FURNISHED:

Mattie Lomax

Post Office Box 015262

Miami, Florida 33101

Scott A. Forman, Esquire

Linda Noel Fleurimond, Esquire

Littler Mendelson, P.C.

Two South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

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

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.