08-004495 Marshall Meikle vs. Hotel Unlimited, Inc./Double Tree Status: Closed Recommended Order on Monday, November 23, 2009.

Summary: Petitioner demonstrated a prima facie case of retaliation; Respondent demonstrated a legitimate, non-discriminatory reason for termination; however, Petitioner did not demonstrate that the asserted reason was pretextual. Recommend dismissal of Petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHALL MEIKLE, )

)

Petitioner, )

)

vs. ) Case No. 08-4495

)

HOTELS UNLIMITED, INC./DOUBLE )

TREE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 4 and October 23, 2009, by video teleconference with

connecting sites in West Palm Beach and Tallahassee, Florida,

before Errol H. Powell, an Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marshall Meikle, pro se

416 Arabian Road

Palm Springs, Florida 33461

For Respondent: Thomas A. Groendyke, Esquire

Douberley & Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

an unlawful employment act by discriminating against Petitioner

on the basis of age and retaliating against Petitioner in

violation of the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

Marshall Meikle filed an employment discrimination

complaint against Hotels Unlimited, Inc./Double Tree (Hotels

Unlimited) on the basis of age and retaliation with the Florida

Commission on Human Relations (FCHR). The FCHR determined that

no reasonable cause existed to believe that an unlawful

employment practice occurred and issued a “Determination [of] No

Cause” and a “Notice of Determination [of] No Cause.”

Mr. Meikle timely filed a Petition for Relief. On September 16,

2008, FCHR referred this matter to the Division of

Administrative Hearings.

The final hearing was scheduled, but a continuance was

granted. The hearing was held on May 4, 2009, at which

testimony was taken and documentary evidence was admitted.

However, a controversy regarding one witness was brought before

this tribunal, which resulted in the re-opening and re-

scheduling of the final hearing in order to take the testimony

of the witness.

At hearing, Mr. Meikle withdrew his claim of employment

discrimination based on age, leaving his claim of retaliation.

Mr. Meikle presented the testimony of two witnesses, including

testifying on his own behalf, and entered three exhibits

(Petitioner's Exhibits numbered 1 through 3) into evidence.

Hotels Unlimited presented the testimony of two witnesses and

entered eight exhibits (Respondent's Exhibit numbered 1 through

8) 1 into evidence.

A transcript of the hearing was not ordered. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the

conclusion of the hearing. The parties timely filed their post

hearing submissions, which were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Mr. Meikle is an African-American male.

2. At hearing, Mr. Meikle withdrew his claim of age

discrimination.

3. Mr. Meikle is only pursuing the claim of retaliation.

4. Mr. Meikle was employed with the Radisson Hotel

(Radisson), which was owned by Hotels Unlimited.

5. Mr. Meikle’s supervisor at the Radisson was Harland

McPhun, who was the Assistant General Manager.

6. Mr. McPhun’s supervisor at the Radisson was Diane Gray,

who was the General Manager.

7. During his employment at the Radisson, Mr. Meikle was

promoted from a cook to the Kitchen Director. He was very proud

of being in the position of Kitchen Director.

8. Mr. McPhun had not encountered any problems with

Mr. Meikle being on time for work or being a “no-show” for work

as scheduled.

9. However, Mr. McPhun had encountered problems with

Mr. Meikle in other areas, such as Mr. Meikle's providing his

sister, who was employed at the front desk of the Radisson, with

larger portions of food than the other employees; and being in

places other than the kitchen area talking, i.e., at or near the

front desk. Mr. McPhun gave Mr. Meikle verbal warnings,

regarding the incidents, but never documented any of the verbal

warnings.

10. At some point in time, Hotels Unlimited decided to

convert the Radisson to a Double Tree Hotel (Double Tree). The

Double Tree’s structure required the position of a Food and

Beverage Manager, who would supervise the food and beverage

personnel, kitchen staff, and restaurant servers.

11. Gerald Brown was hired as the Food and Beverage

Manager in January 2008. Mr. Brown began his employment before

the completion of the conversion from the Radisson to the Double

Tree.

12. On February 14, 2008, Mr. Brown held his first staff

meeting with the entire staff over whom he had supervision.

Mr. Meikle was late for the staff meeting.

13. On February 16, 2008, Mr. Brown issued a “Disciplinary

Document” indicating that he was giving Mr. Meikle his first

written warning for being late at the meeting. Mr. Meikle

admits that he was late for the meeting. The Disciplinary

Document was signed by Mr. Meikle (the date of the signature was

not completed), by Mr. Brown, as the Manager (the date of the

signature was not completed), and by Ms. Gray, as the General

Manager, on February 18, 2008.

14. Additionally, on February 16, 2008, Mr. Brown issued

another Disciplinary Document indicating that he was giving

Mr. Meikle his first written warning for failing to follow rules

and direction involving four different matters about which

Mr. Brown had repeatedly counseled Mr. Meikle on several

occasions, but were not being adhered to by Mr. Meikle. The

Disciplinary Document was signed by Mr. Meikle (the date of the

signature was not completed), by Mr. Brown, as the Manager, on

February 16, 2008, and by Ms. Gray, as the General Manager, on

February 18, 2008.

15. On February 25, 2008, Mr. Brown issued a Disciplinary

Document for an incident that occurred on February 23, 2008, a

Saturday night. Mr. Meikle was scheduled to work, but he

departed the kitchen and the hotel property without informing

and obtaining permission from the manager. Hotels Unlimited’s

policy required the informing of the manager in order for the

manager to take appropriate steps to make adjustments to

accommodate the absence. Mr. Meikle was entitled to a break,

but he failed to notify the manager of his absence in accordance

with the policy. The Disciplinary Document included a statement

The Disciplinary Document was signed by Mr. Meikle on

February 26, 2008, by Mr. Brown, as the Manager, on February 25,

2008, and by Ms. Gray, as the General Manager, on February 26,

2008.

16. Regarding Mr. Meikle’s absence from work on Saturday

evening, February 23, 2008, he was working an 18-hour shift,

without anyone to relieve him, which meant that he was unable to

take a break. He was exhausted and needed to take a break.

Before Mr. Brown was hired, Mr. Meikle was working the 18-hour

shift, and after Mr. Brown was hired, Mr. Meikle agreed to

continue working the 18-hour shift. Mr. Brown did not wish to

disrupt what was already in place, so he agreed to allow

Mr. Meikle to keep the 18-hour shift. It was not unreasonable

for Mr. Brown to maintain Mr. Meikle on the 18-hour shift, as

Mr. Meikle requested.

17. On that same day, February 25, 2008, Mr. Brown issued

a Disciplinary Document for an incident that occurred on

February 25, 2008. Mr. Meikle raised his voice and became very

loud, resulting in guests being disturbed. As Mr. Meikle had

been absent from work on Saturday evening, February 23, 2008,

Mr. Brown was inquiring of Mr. Meikle the reason for his

(Mr. Meikle’s) absence. Further, during the conversation,

Mr. Brown raised several other concerns. Mr. Meikle raised his

voice and became very loud, which Mr. Brown determined was

disturbing the guests. Mr. Brown requested Mr. Meikle to remove

himself from the dining area. The Disciplinary Document was

signed by Mr. Brown on February 26, 2008. Mr. Meikle refused to

sign the Disciplinary Document where the employee’s signature is

indicated; but, he (Mr. Meikle) noted on it, “Refuse to sign

because I did what I was told,” and signed his name under the

statement.

18. Each Disciplinary Document indicated that Mr. Meikle’s

termination was effective “2/29/08.” Mr. Brown did not indicate

a date for termination on any Disciplinary Document and could

offer no explanation as to why or how each Disciplinary Document

contained such information. Furthermore, no testimony was

presented as to why or how each Disciplinary Document contained

such notation.

19. Mr. Brown contacted Ms. Gray, recommending the

termination of Mr. Meikle. Ms. Gray did not approve the

recommendation; she wanted to continue to work with Mr. Meikle.

20. On February 25, 2008, a letter, bearing the same date,

from Mr. Meikle was faxed to Hotels Unlimited’s Human Resources.

Among other things, Mr. Meikle notified Human Resources that he

was working in a hostile work environment created by Mr. McPhun,

providing examples of what he considered inappropriate action

and conduct by Mr. McPhun; that Mr. McPhun “strongly dislike[s]”

him “for whatever the reason”; that Mr. McPhun was taking food

from the hotel and that he (Mr. Meikle) had reported it to the

general manager; that all of his (Mr. Meikle’s) current problems

at work stemmed from Mr. McPhun, providing examples of the

problems that he (Mr. Meikle) had encountered 2 ; that Mr. McPhun

was the cause of all of his problems at work; that he

(Mr. Meikle) had no one to ask for help; that Mr. McPhun was out

to get him (Mr. Meikle) fired; that everyone was biased against

him (Mr. Meikle) because of Mr. McPhun; and that a copy of the

letter would be forwarded to the EEOC and the FCHR.

21. Ms. Gray was notified by her superior that Human

Resources had received a letter from Mr. Meikle, but she was not

notified of the content of the letter nor did she receive or

view a copy of the letter. Her superior told her to talk with

Mr. Meikle and resolve the problem.

22. Hotels Unlimited’s Employee Handbook, Employment

Policies & Practices section, provides in pertinent part:

Equal Employment

* * *

If you suspect discriminatory or harassing

actions on the part of the Company or any

other employee, you should immediately

notify your General Manager or Corporate

Department Head, as applicable, or, if you

prefer, a Company Officer. Such

notification will be held in confidence to

the extent possible. Discriminatory

behavior or action by any employee is cause

for discharge.

* * *

Sexual and Other Forms of Harassment

Policy Statement:

Hotels Unlimited, Inc. is committed to a

work environment in which all employees are

treated with respect and dignity. It is the

policy of Hotels Unlimited, Inc. to provide

a work environment that is free from

discrimination and harassment. Action,

words or comments based on an individual’s

sex, race, color, religion, sexual

orientation, national origin, age,

disability, marital status, citizenship or

any other characteristic protected by law –

either overt or subtle – are demeaning to

another person and undermine the integrity

of the employment relationship. . . .

* * *

Harassment on the basis of any other

protected characteristic is also strictly

prohibited. Such harassment is defined as

verbal or physical conduct that denigrates

or shows hostility toward an individual

because of his/her race, color religion,

sex, sexual orientation, national origin,

age, disability, marital status, citizenship

or any other characteristic protected by

law, and that has the purpose or effect of

creating an intimidating, hostile or

offensive work environment; has the purpose

or effect of unreasonably interfering with

an individual’s work performance; or

otherwise adversely affects an individual’s

employment opportunity.

* * *

Administration of Policy:

* * *

It is unlawful to retaliate in any way

against anyone who has complained about

harassment. Any incident of retaliation

should be reported in the same manner as an

incident of harassment. Any employee who

engages in such retaliation will be subject

to disciplinary action up to and including

discharge.

All allegations of discrimination,

harassment, or retaliation will be subject

to prompt, thorough and confidential

investigation. All investigations will be

designed to protect the privacy of, and

minimize suspicion toward, all parties

involved. . . .

23. The Employee Handbook provided protection against

employment practices for statuses beyond those set forth by law. 3

24. In the early morning hours of February 29, 2008,

Mr. Meikle was awoken by a telephone call from a co-worker

inquiring as to why he (Mr. Meikle) was not at work. Mr. Meikle

informed his co-worker that he was off that day, but his co-

worker advised that he (Mr. Meikle) was scheduled to work.

Mr. Meikle telephoned Mr. Brown, who informed Mr. Meikle to be

at work. Mr. Meikle reported to work, but failed to report for

his shift as scheduled.

25. Regarding Mr. Meikle’s failure to report to work on

time for his scheduled shift, all work schedules for Food and

Beverage, during Mr. Brown’s tenure, were typed and posted, one

week in advance. The work week for Food and Beverage was Monday

through Sunday. The posted work schedule for the week of

February 25, 2008, was prepared, typed, and posted by Mr. Brown

and indicated that Mr. Meikle was required to work on Monday,

February 25, 2008, and Tuesday, February 26, 2008; was not

required to work on Wednesday, February 27, 2008, and Thursday,

February 28, 2008; but, was required to work on Friday,

February 29, 2008, specifically, from 5:00 a.m. to

2:00 p.m.

26. Mr. Meikle reviewed a work schedule for the week of

February 25, 2008, that was typed and hand-written. The work

schedule indicated that it was prepared by Mr. McPhun and that

he (Mr. Meikle) was not required to work on Friday, February 29,

2008. Based on that work schedule, Mr. Meikle did not believe

that he had to report to work on February 29, 2008.

27. However, Mr. Meikle was required to report to work on

February 29, 2008, and work from 5:00 a.m. to 2:00 p.m. He

failed to report to work for his shift as scheduled. 4

28. No dispute exists that, at no time previously, had

Mr. Meikle failed to report to work for his shift as scheduled.

29. On February 29, 2008, Mr. Meikle was terminated for

failing “to be at work on time for [his] schedule [sic] shift.”

A Termination Report dated February 29, 2008, was signed by

Mr. Brown, by Mr. Meikle, and Ms. Gray.

30. Mr. Brown made the determination to terminate the

employment of Mr. Meikle, and Ms. Gray agreed.

31. Mr. McPhun did not participate with Mr. Brown and

Ms. Gray in the determination to terminate the employment of

Mr. Meikle.

32. At the time of Mr. Meikle’s termination, Mr. Brown was

not aware of Mr. Meikle’s letter to Hotels Unlimited’s Human

Resources.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11 and 120.569,

Florida Statutes (2009), and Subsection 120.57(1), Florida

Statutes (2009).

34. The standard of proof is preponderance of the

evidence. § 120.57(1)(j), Fla. Stat. (2009).

35. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2009).

36. Section 760.10, Florida Statutes, provides in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

* * *

(7) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section.

37. Mr. Meikle withdrew his claim of age discrimination,

leaving his claim of retaliation remaining.

38. Because the provision of Section 760.10(7), Florida

Statutes, is “almost identical to its federal counterpart, 42

U.S.C. § 2000e-3(a), Florida courts generally follow federal

case law when examining similar state claims. Hinton v.

Supervision Int’l, Inc. , 942 So. 2d 986, 989 (Fla. 5th DCA

2006).” Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926

(Fla. 5th DCA 2009).

39. To establish a prima facie case of retaliation under

Section 760.10(7), Florida Statutes, “a plaintiff must

demonstrate: (1) that he or she engaged in statutorily protected

activity; (2) that he or she suffered adverse employment action;

and (3) that the adverse employment action was causally related

to the protected activity. See Harper v. Blockbuster Entm’t

Corp. , 139 F.3d 1385 (11th Cir.), cert. denied , 525 U.S. 1000,

119 S. Ct. 509, 142 L. Ed. 2d 422 (1998). Once the plaintiff

makes a prima facie showing, the burden shifts and the defendant

must articulate a legitimate, nondiscriminatory reason for the

adverse employment action. Wells v. Colorado Dep’t of Transp. ,

325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then

respond by demonstrating that defendant's asserted reasons for

the adverse action are pretextual. Id. ” Blizzard at 926.

40. Section 760.10(7), Florida Statutes, has

“historically . . . been divided into the ‘opposition clause’

and the ‘participation clause.’” Blizzard v. Appliance Direct,

Inc. , 16 So. 3d 922, 926 (Fla. 5th DCA 2009). Mr. Meikle’s

claim falls under the participation clause. See Blizzard at

926.

41. As to the first element of a prima facie case,

Mr. Meikle’s letter to Hotels Unlimited’s Human Resources must

be examined. In the letter, Mr. Meikle charges Mr. McPhun with

harassment and creating a hostile work environment and reports

it to Hotels Unlimited, in accordance with Hotels Unlimited’s

Employee Handbook. In the letter, Mr. Meikle asserts what he

believes to be harassment against him, rising to the level of

creating a hostile work environment, and, also, indicates that a

copy of the letter would be forwarded to the EEOC and the FCHR.

Based on the Employee Handbook, Mr. Meikle had “a good faith,

reasonable belief” that Mr. McPhun was engaged in an unlawful

employment practice—harassment and creating a hostile work

environment. See Harper v. Blockbuster Entertainment

Corporation , 139 F.3d 1385, 1388 (11th Cir. 1998). But nowhere

in the letter does Mr. Meikle assert discrimination based on age

or any other statutorily protected status.

42. The second element, an adverse employment action, is

demonstrated in that Mr. Meikle was terminated.

43. The third element, adverse employment action’s causal

relationship to the protected activity, is demonstrated in that

Mr. Meikle was terminated after he complained to Hotels

Unlimited’s Human Resources.

44. Therefore, Mr. Meikle demonstrated a prima facie case.

45. Shifting the burden to Hotels Unlimited, as to

articulating a legitimate, non-discriminatory reason for

terminating Mr. Meikle, Hotels Unlimited has met its burden.

The evidence demonstrates that Mr. Meikle failed to report for

his shift as scheduled on February 29, 2008, and that Mr. Brown,

not Mr. McPhun, with the approval of Ms. Gray, terminated

Mr. Meikle.

46. Now, shifting the burden to Mr. Meikle, as to

Mr. Meikle's demonstrating that Hotels Unlimited’s asserted

reason for terminating him was pretextual, Mr. Meikle has failed

to meet his burden. The evidence demonstrates that Mr. Brown,

not Mr. McPhun, had disciplined Mr. Meikle several times within

the month of February 2008; and that, when Mr. Meikle failed to

report for his shift as scheduled on February 29, 2008,

Mr. Brown, not Mr. McPhun, with the approval of Ms. Gray,

terminated Mr. Meikle.

47. Hence, Mr. Meikle has failed to demonstrate that

Hotels Unlimited retaliated against him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that Hotels Unlimited/Double Tree

did not retaliate against Marshall Meikle in violation of the

Florida Civil Rights Act of 1992, as amended and dismissing his

petition for relief.

DONE AND ENTERED this 23rd day of November, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 23rd day of November, 2009.

ENDNOTES

1/ Respondent’s Exhibit numbered 1 was pre-marked as

Respondent’s Exhibit numbered 2; Respondent’s Exhibit numbered 2

was pre-marked as Respondent’s Exhibit numbered 3; Respondent’s

Exhibit numbered 3 was pre-marked as Respondent’s Exhibit

numbered 4; Respondent’s Exhibit numbered 4 was pre-marked as

Respondent’s Exhibit numbered 5; Respondent’s Exhibit numbered 5

was pre-marked as Respondent’s Exhibit numbered 6; Respondent’s

Exhibit numbered 6 was pre-marked as Respondent’s Exhibit

numbered 10; and Respondent’s Exhibit numbered 7 was pre-marked

as Respondent’s Exhibit numbered 15.

2/ The examples of the problems were the disciplinary actions

taken against Mr. Meikle by Mr. Brown.

3/ See Conclusion of Law 36.

4/ There is no doubt that Mr. Meikle believed that he was not

required to report to work on February 29, 2008. However,

considering the burden of proof and the standard of proof, the

evidence fails to demonstrate that it was reasonable for

Mr. Meikle to rely upon the work schedule that he reviewed.

COPIES FURNISHED :

Marshall Meikle

416 Arabian Road

Palm Springs, Florida 33461

Thomas A. Groendyke, Esquire

Douberley & Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

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.