08-002379 Michel J. Thermitus vs. Tri-Management Company, D/B/A Burger King Status: Closed Recommended Order on Friday, October 17, 2008.

Summary: Customer who purchases food and receives requested refund is not discriminated against on the basis of race or national origin when customer complains about service and restaurant manager asks customer to leave restaurant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHEL J. THERMITUS, )

)

Petitioner, )

)

vs. ) Case No. 08-2379

)

TRI-MANAGEMENT COMPANY, d/b/a )

BURGER KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on September 5, 2008, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Michel J. Thermitus, pro se

Post Office Box 525

Immokalee, Florida 34143

For Respondent: J. Scott Hudson, Esquire

Hudson Law Firm

SunTrust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of national origin or race in violation

of Section 760.08, Florida Statutes (2005), 1 during Petitioner’s

visit to a Burger King Restaurant on June 3, 2006.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination with the

Florida Commission on Human Relations (the Commission) on

May 25, 2007. On January 24, 2008, the Commission issued a

Notice of Determination: Cause. Petitioner timely filed a

Petition for Relief, and the Commission referred the matter to

DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified, but did not call any

witnesses or submit any exhibits. Respondent called one witness

and submitted three exhibits. The identity of the witnesses and

exhibits and any associated rulings are reported in the

Transcript of the hearing filed with DOAH on September 19, 2008.

FINDINGS OF FACT

1. Petitioner is in a protected class within the meaning

of Subsection 760.02(6). Petitioner’s national origin is

Haitian, and his race is Black.

2. Respondent operates a Burger King restaurant located at

1260 North Fifteenth Street, Immokalee, Florida 34142 (the

Restaurant). The Restaurant is a place of public accommodation,

defined in Subsection 760.02(11)(b).

3. Petitioner and two friends visited the Restaurant on

June 3, 2006, for the purpose of purchasing and consuming food

served by the Restaurant. Petitioner waited in line to order

food for himself and his two friends.

4. Petitioner placed his order and paid for the food he

ordered. The cashier and food service employee on duty at the

Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman

who is married to a Haitian man.

5. At the time the food was ready, Ms. Lopez called the

order number. Petitioner attempted to retrieve the food and

Ms. Lopez asked him for his receipt with the order number on it.

Petitioner indicated that he did not have the receipt.

Ms. Lopez directed Petitioner’s attention to a sign stating that

customers must have a receipt in order to be served. After a

short conversation about the store’s policy and requirement to

have a receipt, Ms. Lopez served Petitioner his food.

6. The food order was correct, but Petitioner objected to

the manner in which Ms. Lopez placed his food service tray on

the counter. Petitioner claims that Ms. Lopez threw the tray on

the counter. None of the food spilled out of containers or off

the tray.

7. Petitioner demanded that she serve him correctly or

refund his money. Ms. Lopez refunded Petitioner’s money.

8. It is undisputed that Petitioner had concluded his

business transaction with the Restaurant after requesting the

refund. Petitioner intended to leave the Restaurant.

9. Petitioner claims that before he left the Restaurant,

Ms. Lopez cursed at him and referred to his national origin by

saying, “Get the fuck out, fucking Haitians.” Ms. Lopez

testified that she may have cursed at him at the time she

refunded the money. However, Ms. Lopez denied making any

comments related to national origin. The fact-finder finds the

testimony of Ms. Lopez to be credible and persuasive.

10. During the incident at the Restaurant, Petitioner’s

two friends and another gentleman joined Petitioner at the

counter as he argued with Ms. Lopez. None of the men testified

at the hearing. It is undisputed that the alleged comments by

Ms. Lopez are the only alleged references to the national origin

or race of Petitioner by any employee or manager at the

Restaurant.

11. Respondent’s store manager, Mr. Lewis Sowers, a

Caucasian male, heard the disturbance at the counter of the

Restaurant. Mr. Sowers asked Petitioner and the other gentlemen

to leave the Restaurant.

12. Mr. Sowers contacted the police department regarding

the disturbance, and the officer on the scene completed a police

report. A copy of the police report was admitted into evidence

as Respondent’s Exhibit 2 without objection.

13. The alleged discrimination by Ms. Lopez did not impede

Petitioner’s ability to contract for goods or services at the

Restaurant. The absence of a receipt did not prevent

Respondent’s employee from serving Petitioner his food order,

and the order appeared to be correct.

14. Once Petitioner received his refund, Petitioner had no

intention of staying in the Restaurant and does not have a

practice of visiting Burger King restaurants unless he is eating

there. Thus, any attempt to contract for goods and services

with Respondent had terminated before the alleged

discrimination.

15. Petitioner did not see any other customers who lost or

did not produce their receipts. Petitioner did not recall the

race or national origin of any other customers who may have had

their food order served in a different manner.

16. Petitioner presented no evidence of any damages

sustained as a result of the alleged discrimination. Petitioner

failed to answer Respondent’s Request for Documents evidencing

mental anguish, suffering or punitive damage awards he believed

to be appropriate.

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the subject matter of and

(2008). It is an unlawful practice for a place of public

accommodation to discriminate against or segregate individuals

on the basis of race or national origin. § 760.08.

18. Chapter 760, The Florida Civil Rights Act (FCRA), is

patterned after federal civil rights legislation. Cases

construing federal civil rights legislation can be used to

interpret the FCRA. Bass v. Board of County Commissioners,

Orange County, Florida , 256 F.3d 1095, 1109 (11th Cir. 2001);

Stevens v. Steak n Shake, Inc. , 35 F. Supp. 2d 882, 886

(M.D. Fla. 1998); Brand v. Florida Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

19. Petitioner has the ultimate burden of proof in this

proceeding. Petitioner must prove the alleged discrimination by

a preponderance of the evidence. McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); Department of Community Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

20. Petitioner has the initial burden of establishing a

prima facie case that the alleged discrimination occurred. In

order to satisfy the requirement for a prima facie showing of

discrimination, Petitioner must present evidence that:

(1) He is a member of a protected class;

(2) He attempted to contract for services

and to afford himself the full benefits and

enjoyment of a public accommodation;

(3) He was denied the right to contract for

those services and, therefore, was denied

the full benefits and enjoyment of a public

accommodation; and

(4) Such benefits and services were

available to similarly situated persons

outside the protected class who received

full benefits or enjoyment, or were treated

better.

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973); United

States v. Lansdowne Swim Club , 894 F.2d 83, 88 (3rd Cir. 1990);

LaRoche v. Denny’s, Inc. , 62 F. Supp. 2d 1375, 1382 (S.D. Fla.

1999).

21. Petitioner satisfied the first two requirements for a

prima facie showing of discrimination. It is undisputed that

Petitioner is a member of a protected class, based on his

national origin and race, and that Petitioner attempted to

contract for services and afford himself the full benefits and

enjoyment of a public accommodation.

22. Petitioner did not satisfy the third requirement for a

prima facie showing of discrimination. Petitioner admits he was

not denied the right to contract for food and services served at

the Restaurant and in fact paid for and received food and

services for which he contracted. See Stevens v. Steak n Shake,

Inc. , 35 F. Supp. 2d 882, 890 (M.D. Fla. 1998) (no prima facie

case of racial discrimination where the complaining party is not

denied service).

23. Petitioner complains that he received poor service.

However, poor service or slow service is not tantamount to the

denial of service and does not represent a basis to assert a

violation of Petitioner’s civil rights. See Robertson v. Burger

King, Inc. , 848 F. Supp 78 (E.D. La. 1994)(no showing of

discrimination where Caucasian customers, arriving later than

the plaintiff, were served first). The alleged comment by

Ms. Lopez, if proven, may demonstrate gross insensitivity, but

in and of itself, does not establish a claim under the civil

rights laws. Petitioner was still required to show that he was

refused service or admittance on the basis of race or national

origin. See Stearnes v. Baur’s Opera House, Inc. , 788 F. Supp.

375, 378 (C.D. Ill. 1992).

24. The request for Petitioner to leave the Restaurant did

not deny Petitioner the right to contract for food and services.

Petitioner successfully contracted for food and services,

received a refund, and intended to leave the Restaurant before

management requested Respondent to leave the Restaurant. The

contract for goods or services ended well before management

asked Petitioner to leave the Restaurant.

25. Petitioner also failed to meet the fourth requirement

for a prima facie showing of discrimination. A preponderance of

the evidence does not support a finding that similarly situated

individuals of a different national origin or race received

services or benefits that were denied to Petitioner. Petitioner

did not show there were any other customers who failed to retain

their receipts or the race or national origin of other customers

in the Restaurant who may have received better treatment.

Stevens v. Steak n Shake, Inc. , 35 F. Supp. 2d at 890. Deshawn

v. Denny’s, Inc. , 918 F. Supp 1418, 1424 (D. Colo. 1996).

26. With regard to purported damages, in the final

hearing, Petitioner asserted that he wanted to be “compensated”

in the form of “money.” Subsection 760.11(6) states that the

“administrative law judge shall issue an appropriate recommended

order in accordance with chapter 120 prohibiting the practice

and providing affirmative relief from the effects of the

practice, including back pay.” Since back pay is not at issue

in a public accommodation case, DOAH is authorized to afford

remedies that work to prohibit the practice and provide

affirmative relief to that end. In cases where Petitioner’s

have proven discrimination, some ALJ’s have held that

affirmative relief could include compensatory damages. Vanessa

Brown v. Capital Circle Hotel Company , Case No. 01-3882 (DOAH

October 17, 2002). However, in this case Petitioner has not

provided any evidence that he sustained damages nor has he

sought affirmative relief.

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 Respondent not guilty of the alleged

discrimination and dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 17th day of October, 2008.

ENDNOTE

1/ References to chapters, sections, and subsections are to

Florida Statutes (2005), unless otherwise stated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

J. Scott Hudson, Esquire

Hudson Law Firm

SunTrust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

Michel J. Thermitus

Post Office Box 525

Immokalee, Florida 34143

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.