08-004873 Brunel Dangervil vs. Trump International Sonesta Beach Resort Status: Closed Recommended Order on Friday, February 27, 2009.

Summary: Petitioner did not establish he was treated disparately or terminated based upon his national origin. One comment uttered by a person without authority to discipline the Petitioner does not constitute discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUNEL DANGERVIL, )

)

Petitioner, )

)

vs. ) Case No. 08-4873

)

TRUMP INTERNATIONAL BEACH )

RESORT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this

case before J. D. Parrish, a duly-designated administrative

law judge of the Division of Administrative Hearings, on

December 9, 2008, by video teleconference at sites in Miami

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

For Respondent: Warren Jay Stamm, Esquire

Trump International Beach Resort

18001 Collins Avenue, 31st Floor

Sunny Isles Beach, Florida 33160

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

practice alleged in the Employment Complaint of

Discrimination filed with the Florida Commission on Human

Relations (FCHR) and, if so, what relief should Petitioner

be granted.

PRELIMINARY STATEMENT

On April 22, 2008, the Petitioner, Brunel Dangervil,

filed an Employment Complaint of Discrimination with the

FCHR, alleging that his former employer, the Respondent,

Trump International Sonesta Beach Resort, had discriminated

against him based on his national origin (Haitian).

According to the complaint, which contained the following

"discrimination statement," the "most recent discrimination

took place" on April 22, 2007:

I believe I was subjected to disparate

terms and conditions, harassment, and

wrongfully terminated because of my

National Origin (Haitian). My

supervisor Elisabeth Cortez (Hispanic)

removed me from my 6 am work shift, and

replaced me with Luis who is Hispanic,

and had less seniority. On numerous

occasions, I heard security officer

Curtis (Black-American), use the phrase

"fucking Haitian" when I walked by. On

April 22, 2008, Assistant Manager Luis

Santana (Hispanic) terminated me. Mr.

Santana did not give me a reason for my

termination. He told me to never come

back on the hotel premises, and had

security escort me off the property.

On September 10, 2008, following the completion of its

investigation of Petitioner's complaint, the FCHR issued a

Notice of Determination: No Cause, advising the Petitioner

that a determination had been made that "no reasonable

cause exists to believe that an unlawful employment

practice occurred." Thereafter, on or about September 29,

2008, the Petitioner filed a Petition for Relief. The case

was forwarded to the Division of Administrative Hearings

for formal proceedings on September 30, 2008.

At the hearing, the Petitioner testified in his own

behalf and presented testimony from: Wilfrid Lazarre, a

former co-worker; Curtis Butler, a security guard;

Elizabeth Cortes, a former director of housekeeping for the

Trump Resort; Lewis Saldana, the housekeeping manager at

the Trump Resort; Eddie Lugo, a security supervisor at the

Trump Resort; and Esther Sandino, director of human

resources for the Respondent who also testified on behalf

of the Respondent. The Respondent's Exhibits 1-6 were

admitted into evidence.

In accordance with the directions of the undersigned

at the conclusion of the hearing, the parties' proposed

recommended orders were to be filed within ten days of the

hearing. By Order entered December 16, 2008, the parties

were granted leave until December 31, 2008, to file their

proposed orders. The Respondent timely filed a proposed

order. The Transcript of the final hearing (consisting of

one volume) was filed on December 31, 2008.

The Petitioner did not file a proposed order but filed

a Motion for Judicial Notice of March 13, 2008 Decision of

Appeals Referee on January 6, 2009. Thereafter, the

Respondent filed a Response to that request on January 29,

2009. Judicial review of the ruling of another tribunal

unrelated to the issues of this case is immaterial.

Presuming the Petitioner was entitled to unemployment

compensation does not, as a matter of law, establish the

necessary criteria to support a claim of employment

discrimination. The burden of proof and the requisites of

proof pertinent to this case are more fully addressed in

the conclusions of law below.

FINDINGS OF FACT

1. The Petitioner began his employment with the

Respondent on or about April 9, 2004. The Petitioner

worked as a houseman. This job description was within the

Respondent's housekeeping section. His original schedule

required him to work a shift that ran from 6:00 a.m. until

2:00 p.m.

2. In October or November of 2004, the Petitioner's

work schedule changed and he was directed to work the

overnight shift. The overnight shift personnel reported

for duty from 11:00 p.m. until 7:30 a.m. The Petitioner

accepted this re-assignment. The change in shift

assignment was requested by Elizabeth Cortes' predecessor.

3. Some time after December 2004, the Petitioner's

supervising manager changed and Elizabeth Cortes became the

director or manager for housekeeping. The Petitioner asked

Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m.

shift. That request was not approved. The Petitioner

accepted this decision and continued to work as scheduled.

Ms. Cortes told the Petitioner at that time that she did

not have another employee who would be available to take

the night shift.

4. In 2007 the Petitioner enrolled in school and

requested that his shift be changed to a 9:00 p.m. to

5:00 a.m. shift so that he could attend school at Miami

Dade. That request was approved. From the time of

approval, the Petitioner was permitted to work three days

from 9:00 p.m. to 5:00 a.m. (his school days) and two days

from 11:00 p.m. to 7:30 a.m. The modification of the

schedule allowed the Petitioner sufficient time to get to

school in the morning. The Petitioner continued to work

these shift times without complaint or issue.

5. In November or December of 2006, the Petitioner

made an application to become a banquet server for the

Respondent's restaurant. He alleged that he gave the

application to Elizabeth Cortes who was to sign it and

forward it to Human Resources. According to Esther

Sandino, the Petitioner did not file an application for

restaurant server. Further, Ms. Cortes did not recall the

matter. The Petitioner did not file a claim of

discrimination for this alleged incident but presumably

alleged that this incident demonstrates an on-going

disparate treatment. There was no evidence that a non-

Haitian was hired for the job as banquet server. There was

no evidence any banquet servers were hired. Ms. Cortes did

not hire banquet servers. Her responsibilities were

directed at housekeeping.

6. During the time Ms. Cortes was the housekeeping

supervisor, the Respondent employed approximately 90

employees within the housekeeping section. Of those

employees approximately 70 were Haitian. The remainder

were Hispanic, Jamaican, Filipino, and other. Of the five

persons who held supervisory positions, one was Haitian,

two were Hispanic, one was from Czechoslovakia, and the

country of origin of the fifth supervisor was unknown to

Ms. Cortes.

7. Ms. Cortes did not have the authority to terminate

the Respondent's employees. Standard procedure would cause

any allegation of improper conduct to be referred to the

Human Resources office for follow up and investigation.

There were two incidents referred for investigation

regarding the Petitioner prior to the incident of April 22,

2007. Neither of them resulted in suspension or

termination of the Petitioner's employment with the

Respondent.

8. On April 22, 2007, a security officer reported to

the hotel manager on duty, Bingina Lopez, that the

Petitioner was discovered sleeping during his work shift.

Based upon that report, Ms. Lopez sent an e-mail to the

housekeeping department to alert them to the allegation.

When the Petitioner next reported for work, Mr. Saldana

told the Petitioner to leave the property and to report to

the Human Resources office the next day to respond to the

allegation. The Petitioner did not report as directed and

did not return to the property.

9. Mr. Saldana did not have the authority to suspend

or terminate the Petitioner's employment. Moreover, the

Respondent did not send a letter of suspension or

termination to the Petitioner. In fact, the Respondent

assumed that the Petitioner had abandoned his position with

the company.

10. Ms. Cortes presumed the Petitioner abandoned his

position because all of his uniforms were returned to the

company. To avoid having the final paycheck docked, the

Respondent required that all uniforms issued to an employee

be returned upon separation from employment. The

Petitioner acknowledged that he had his brother return the

uniforms to the Respondent for him. The Respondent

considered turning in uniforms to be an automatic

resignation of employment.

11. To fill the Petitioner's position (to meet

housekeeping needs), the Respondent contacted an agency

that provides temporary staffing. The person who came from

the agency for the assignment was a male Hispanic. The

male (who may have been named Lewis Diaz) arrived at the

Trump Resort for work about ten days after the Petitioner

left. The replacement employee's schedule was from 4:00

p.m. to midnight or 1:00 a.m. The temporary replacement

remained with the Respondent until a permanent replacement

for the Petitioner could be hired. It is unknown how long

that was or who the eventual permanent employee turned out

to be.

12. Because the Petitioner never returned to the

Trump Resort as directed, he was not disciplined for any

behavior that may have occurred on April 22, 2007.

13. The Petitioner's Employee Return Uniform Receipt

was dated April 25, 2007.

14. Prior to the incident alleged for April 22, 2007,

the Petitioner had been investigated in connection with two

other serious charges. Neither of those incidents resulted

in discipline against the Petitioner. Both of the

incidents claimed improper conduct that was arguably more

serious than the allegation of April 22, 2007.

15. Of the 400 plus employees at the Respondent's

resort, the majority are Haitians. The Respondent employs

persons from 54 different countries.

16. The Petitioner's claim that he was referred to as

a "fucking Haitian" by a security guard has not been deemed

credible. The Petitioner was unable to indicate when the

comment was made. Moreover, the Petitioner did not

complain to anyone at the time the comment was allegedly

made. Finally, no other employee could corroborate that

the comment was made. One former employee testified that

the Petitioner told him about the alleged comment. At best

it was one offensive statement made on one occasion.

17. There is no evidence that the Petitioner was

treated in a disparate or improper manner based upon his

national origin.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter

of, these proceedings. §§ 120.57(1) and 760.11, Fla. Stat.

(2008).

19. The Florida Civil Rights Act of 1992 (the Act) is

codified in Sections 760.01 through 760.11, Florida

Statutes (2008). "The Act, as amended, was [generally]

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 [provisions of] Title VII and

the ADEA is [therefore] applicable to cases [involving

counterpart provisions of] the Florida Act." Florida State

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

1996); see also Joshua v. City of Gainesville , 768 So. 2d

432, 435 (Fla. 2000)("The [Act's] stated purpose and

statutory construction directive are modeled after Title

VII of the Civil Rights Act of 1964.").

20. The Act makes certain acts prohibited "unlawful

employment practices," including those described in Section

760.10, Florida Statutes (2008), which provides:

(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.

(2) It is an unlawful employment

practice for an employment agency to

fail or refuse to refer for employment,

or otherwise to discriminate against,

any individual because of race, color,

religion, sex, national origin, age,

handicap, or marital status or to

classify or refer for employment any

individual on the basis of race, color,

religion, sex, national origin, age,

handicap, or marital status.

(3) It is an unlawful employment

practice for a labor organization:

(a) To exclude or to expel from its

membership, or otherwise to

discriminate against, any individual

because of race, color, religion, sex,

national origin, age, handicap, or

marital status.

(b) To limit, segregate, or classify

its membership or applicants for

membership, or to classify or fail or

refuse to refer for employment any

individual, 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 or as an

applicant for employment, because of

such individual's race, color,

religion, sex, national origin, age,

handicap, or marital status.

(c) To cause or attempt to cause an

employer to discriminate against an

individual in violation of this

section.

(4) It is an unlawful employment

practice for any employer, labor

organization, or joint labor-management

committee controlling apprenticeship or

other training or retraining, including

on-the-job training programs, to

discriminate against any individual

because of race, color, religion, sex,

national origin, age, handicap, or

marital status in admission to, or

employment in, any program established

to provide apprenticeship or other

training.

(5) Whenever, in order to engage in a

profession, occupation, or trade, it is

required that a person receive a

license, certification, or other

credential, become a member or an

associate of any club, association, or

other organization, or pass any

examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, or

other credential, seeking to become a

member or associate of such club,

association, or other organization, or

seeking to take or pass such

examination, because of such other

person's race, color, religion, sex,

national origin, age, handicap, or

marital status.

(6) It is an unlawful employment

practice for an employer, labor

organization, employment agency, or

joint labor-management committee to

print, or cause to be printed or

published, any notice or advertisement

relating to employment, membership,

classification, referral for

employment, or apprenticeship or other

training, indicating any preference,

limitation, specification, or

discrimination, based on race, color,

religion, sex, national origin, age,

absence of handicap, or marital status.

(7) It is an unlawful employment

practice for an employer, an employment

agency, a joint labor-management

committee, or a labor organization 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.

(8) Notwithstanding any other

provision of this section, it is not an

unlawful employment practice under ss.

760.01 -760.10 for an employer,

employment agency, labor organization,

or joint labor-management committee to:

(a) Take or fail to take any action on

the basis of religion, sex, national

origin, age, handicap, or marital

status in those certain instances in

which religion, sex, national origin,

age, absence of a particular handicap,

or marital status is a bona fide

occupational qualification reasonably

necessary for the performance of the

particular employment to which such

action or inaction is related.

(b) Observe the terms of a bona fide

seniority system, a bona fide employee

benefit plan such as a retirement,

pension, or insurance plan, or a system

which measures earnings by quantity or

quality of production, which is not

designed, intended, or used to evade

the purposes of ss. 760.01 -760.10.

However, no such employee benefit plan

or system which measures earnings shall

excuse the failure to hire, and no such

seniority system, employee benefit

plan, or system which measures earnings

shall excuse the involuntary retirement

of, any individual on the basis of any

factor not related to the ability of

such individual to perform the

particular employment for which such

individual has applied or in which such

individual is engaged. This subsection

shall not be construed to make unlawful

the rejection or termination of

employment when the individual

applicant or employee has failed to

meet bona fide requirements for the job

or position sought or held or to

require any changes in any bona fide

retirement or pension programs or

existing collective bargaining

agreements during the life of the

contract, or for 2 years after

October 1, 1981, whichever occurs

first, nor shall this act preclude such

physical and medical examinations of

applicants and employees as an employer

may require of applicants and employees

to determine fitness for the job or

position sought or held.

(c) Take or fail to take any action on

the basis of age, pursuant to law or

regulation governing any employment or

training program designed to benefit

persons of a particular age group.

(d) Take or fail to take any action on

the basis of marital status if that

status is prohibited under its

antinepotism policy.

(9) This section shall not apply to

any religious corporation, association,

educational institution, or society

which conditions opportunities in the

area of employment or public

accommodation to members of that

religious corporation, association,

educational institution, or society or

to persons who subscribe to its tenets

or beliefs. This section shall not

prohibit a religious corporation,

association, educational institution,

or society from giving preference in

employment to individuals of a

particular religion to perform work

connected with the carrying on by such

corporations, associations, educational

institutions, or societies of its

various activities.

(10) Each employer, employment agency,

and labor organization shall post and

keep posted in conspicuous places upon

its premises a notice provided by the

commission setting forth such

information as the commission deems

appropriate to effectuate the purposes

of ss. 760.01 -760.10.

21. The Act gives the FCHR the authority to issue an

order prohibiting the practice and providing affirmative

relief from the effects of the practice, including back

pay, if it finds following an administrative hearing that

an unlawful employment practice has occurred. See §

760.11, Fla. Stat (2008). To obtain relief from the FCHR,

a person who claims to have been the victim of an "unlawful

employment practice" must, "within 365 days of the alleged

violation," file a complaint ("contain[ing] a short and

plain statement of the facts describing the violation and

the relief sought") with the FCHR. § 760.11(1), Fla. Stat.

(2008). It is concluded the Petitioner filed a complaint

within the statutory time limitation.

22. The Plaintiff's complaint alleged that he was

subjected to "disparate terms and conditions, harassment,

and wrongfully terminated because of" his national origin.

As each claim may stand alone as a basis for discriminatory

conduct, each claim is addressed individually.

23. It is concluded the Petitioner was not subjected

to disparate terms and conditions of his employment. There

is no evidence that the Petitioner was paid differently or

given conditions disparate than other employees within his

category of employment. The Respondent demonstrated a

strong record of hiring and retaining Haitian employees at

the pertinent period of time. Additionally, one of five

supervisors was Haitian. Although he was originally

scheduled to the night shift to meet the employer's needs,

the Petitioner was retained on his work schedule to

accommodate his desire to attend school. The Petitioner

did not complain regarding the work schedule assignment,

and there is no evidence that Haitian employees were

scheduled in a disparate manner. To the contrary,

employees on the night shift received a higher hourly rate

of pay.

24. Next, as to a claim of harassment, the Petitioner

has failed to present any credible evidence that he was

harassed at the work site. "A hostile work environment

cannot be identified by a mathematically precise test, but

rather must be determined from the totality of the

circumstances taking into consideration such factors as the

frequency of the discriminatory conduct, its severity,

whether it is physically threatening or humiliating or a

mere offensive utterance and whether it unreasonably

interferes with an employee's work performance." Smith v.

Mount Sinai Medical Center of Greater Miami, Inc. , 36 F.

Supp. 2d 1341 (So. Dist. Fla. 1998). One alleged insult

that did not impact the Petitioner's work performance

hardly qualifies as a hostile, harassing environment.

Assuming, arguendo, the alleged incident occurred, the

Petitioner did not complain that the security guard had

insulted him. Even if true the conduct did not rise to the

level that the Respondent would be held accountable for the

rude behavior of a single employee for a single incident.

Racial or ethnic slurs must be commonplace, overt and

denigrating in order to create an atmosphere of hostility.

See E.E.O.C. v. Beverage Canners, Inc. , 897 F.2d 1067, 1068

(11th Cir. 1990).

25. As to the Petitioner's claim that he was

wrongfully terminated because of his national origin, that

allegation also fails. Simply stated, the Respondent did

not terminate the Petitioner. The Petitioner's assumption

that he had been terminated is not supported by the weight

of the credible evidence presented in this cause. Further,

that another tribunal might have determined Petitioner

should collect unemployment compensation does not address

the standards of law applicable to this matter.

26. Petitioner has the burden of proving the

allegations asserted. "Discriminatory intent may be

established through direct or indirect circumstantial

evidence." Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377

(N.D. Ga. 2001).

27. "Direct evidence is evidence that, if believed,

would prove the existence of discriminatory intent without

resort to inference or presumption." See 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). In this case, the

Petitioner failed to prove discrimination either by direct

or indirect evidence. He proved he is Haitian but little

else.

28. Moreover, although victims of discrimination may

be "permitted to establish their cases through inferential

and circumstantial proof," the Petitioner similarly failed

to present credible inferential or circumstantial proof.

See Kline v. Tennessee Valley Authority , 128 F.3d 337, 348

(6th Cir. 1997).

29. Had the Petitioner established circumstantial

evidence of discrimination, the burden would have shifted

to the Respondent to articulate a legitimate, non-

discriminatory reason for its action. If the employer

successfully articulates a reason for its action, then the

burden shifts back to the complainant to establish that the

proffered reason was a pretext for the unlawful

discrimination. See Malu v. City of Gainesville , 270 Fed.

Appx. 945; 2008 U.S. App. LEXIS 6775 (11th Cir. 2008). In

this case, the persuasive evidence established that the

Petitioner was not terminated. Under the guidelines of

this employer, the Petitioner was presumed to have

abandoned his job. He returned his uniforms, he failed to

report to the human resources office, and he failed to

report for work. The replacement employee was a temporary

person supplied through an agency. A non-Haitian was not

given preferred treatment to the Petitioner's detriment.

The vast majority of the housekeeping workers are Haitian.

A Haitian was also a housekeeping supervisor. The

Petitioner did not establish anyone treated him differently

based upon his national origin.

30. In light of the foregoing, Respondent's employment

discrimination complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and

Conclusions of Law, it is

RECOMMENDED that the FCHR issue a final order finding

no cause for an unlawful employment practice as alleged by

the Petitioner, and dismissing his employment

discrimination complaint.

DONE AND ENTERED this 27th day of February, 2009, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

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 27th day of February, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Erwin Rosenberg, Esquire

Post Office Box 416433

Miami Beach, Florida 33141

Warren Jay Stamm, Esquire

Trump International Beach Resort

18001 Collins Avenue, 31st Floor

Sunny Isles, Florida 33160

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director

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.