09-004807 Douglas Foreman, Jr. vs. Daytona Ihop, Inc. Status: Closed Recommended Order on Thursday, December 31, 2009.

Summary: Petitioner did not prove racial discrimination by showing unlawful termination, failure to promote, or a hostile environment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS FOREMAN, JR., )

)

Petitioner, )

)

vs. ) Case No. 09-4807

)

DAYTONA IHOP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on November 13,

2009, by video teleconference at sites located in Tallahassee,

Florida, and Daytona Beach, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sebrina L. Wiggins, Esquire

Landis Graham French, P.A.

135 East Rich Avenue, Suite C

Deland, Florida 32721

For Respondent: Scott Studner

Corporate Representative

Daytona IHOP, Inc.

124 North Nova Road, Suite 112

Ormond Beach, Florida 32174

STATEMENT OF THE ISSUES

The issues are whether Respondent discriminated against

Petitioner based on his race, and if so, what relief should be

granted.

PRELIMINARY STATEMENT

On or about February 20, 2009, Petitioner Douglas Foreman,

Jr. (Petitioner) filed a Charge of Discrimination with the

Florida Commission on Human Relations (FCHR). The charge

alleged that Respondent Daytona IHOP, Inc. (Respondent) had

discriminated against him based on his race.

On August 6, 2009, FCHR issued a Determination: No Cause.

On September 2, 2009, Petitioner filed a Petition for Relief

with FCHR. The Petition for Relief was referred to the Division

of Administrative Hearings on September 4, 2009.

A Notice of Hearing by Video Teleconference dated

September 14, 2009, scheduled the hearing for November 13, 2009.

During the hearing, Petitioner testified on his own behalf.

Petitioner did not offer any exhibits for admission into the

record as evidence.

Respondent presented the testimony of four witnesses.

Respondent did not offer any exhibits for admission into the

record as evidence.

On November 19, 2009, Respondent's attorney filed a Notice

of Appearance.

On November 20, 2009, Respondent filed an Agreed Motion for

Extension of Time to File and Serve Proposed Recommended Order.

An Order Granting Extension of Time was issued that same day.

The parties declined to file a hearing transcript.

Respondent filed its Proposed Recommended Order on December 2,

2009. Petitioner filed his Proposed Recommended Order on

December 3, 2009.

Unless otherwise noted, citations are to Florida Statutes

(2007).

FINDINGS OF FACT

1. Respondent is a Florida corporation with its principal

business location in Ormond Beach, Florida. Respondent operates

a restaurant in Daytona Beach, Florida, known as IHOP 35. At

all times material here, IHOP 35 had a racially-diverse

workforce.

2. Scott Studner is Respondent's President. Mr. Studner

has direct supervisory authority over Respondent's management

employees and ultimate supervisory authority over the non-

management employees at IHOP 35. Mr. Studner is responsible for

making all decisions relating to promotions and terminations of

employees.

3. Petitioner is a single African-American male with a

minor son. Respondent hired him as a line cook in January 2007.

At that time, Petitioner did not have any management experience.

Petitioner worked as a cook on the day shift for approximately

15 months before Respondent terminated his employment.

4. Petitioner began working 40-hour weeks for $9.00 per

hour. He received at least five raises over a 12-month period,

increasing his hourly wage to $10.00. Petitioner and all of the

staff had to work some overtime during busy periods like "Race

Week."

5. Shortly after Petitioner began working, Mr. Studner

asked Petitioner if he had any interest in a future management

position. Mr. Studner routinely asks this question of all newly

hired cooks. Mr. Studner told Petitioner about Chester Taylor,

an African-American male, who began working for Mr. Studner as a

dish washer and now owns and operates two IHOP restaurants of

his own. Mr. Studner never made any representation or promise

regarding Petitioner's potential advancement into a management

position at IHOP 35.

6. Shortly after he was hired, Petitioner began to

demonstrate poor performance traits. He frequently arrived late

to work. Occasionally Petitioner called to say that he could

not work due to personal reasons.

7. While working for Respondent, Petitioner reported

several specific instances of racial hostility in the workplace

to the general manager, Kathy, who tried to correct each problem

as it arose. On one occasion, Petitioner discussed one incident

with Mr. Studner, months after it occurred.

8. In February 2007, Petitioner reported to Kathy that a

white server named Sharon Blyler had made an inappropriate

comment. Specifically, Petitioner accused Ms. Blyler of stating

that she would get her orders out faster if she was black like a

server named Angela. Kathy wrote Ms. Blyler up on a

disciplinary form, advising her that comments about someone's

race or color would not be tolerated. Mr. Studner was never

informed about this incident.

9. In April 2007, a white co-worker named Kevin called

Petitioner a "monkey" several times. The name calling initially

arose as a result of someone in the kitchen requesting a "monkey

dish," which is a term commonly used in restaurants to describe

a small round bowl for side items such as fruit. Petitioner

reported Kevin's inappropriate comments to Kathy, who wrote

Kevin up on a disciplinary form and suspended him for a week.

10. Apparently, Kevin continued to work in one of

Mr. Studner's restaurants but did not return to work at IHOP 35.

Three or four months after Kevin was suspended, Mr. Studner

asked Petitioner if Kevin could return to work at IHOP 35. When

Petitioner objected, Mr. Studner said he would put Kevin on the

night shift. During the conversation, Mr. Studner told

Petitioner that he should have punched Kevin in the face for

calling him a monkey.

11. In the summer of 2007, there was an ordering mix-up

involving a Caucasian server named Tiffany. When Tiffany became

upset, Petitioner told her to calm down. Tiffany then called

Petitioner a "fucking nigger." Kathy immediately had a talk

with Tiffany, who then quit her job. Mr. Studner was never

informed that Tiffany used a racial slur in reference to

Petitioner.

12. In August 2007, Petitioner received a formal verbal

warning that was memorialized on a disciplinary form. The

warning related to Petitioner's tardiness for work and for not

maintaining his work area.

13. When Kathy left her job as general manager of IHOP 35

in October 2007, there was no one person in charge of the

kitchen. Petitioner and the other cooks continued to do their

previously assigned jobs.

14. On one occasion, Petitioner and another African-

American male cook got into an argument. Someone at the

restaurant called the police to intervene. Petitioner denies

that he picked up a knife during the confrontation.

15. At some point, Mr. Studner began working in the

kitchen with Petitioner. Mr. Studner worked there for

approximately five straight weeks.

16. While Mr. Studner was working in the kitchen, he never

saw any signs of racial hostility. However, Mr. Studner was

aware that Petitioner could not get along with the rest of the

staff. Mr. Studner realized that the staff resented

Petitioner's habit of talking on his cell phone and leaving the

line to take breaks during peak times.

17. Respondent had an established and disseminated work

policy that employees are not allowed to take or make cell phone

or other telephone calls during work hours except in

emergencies. Compliance with the policy is necessary because

telephone calls to or from employees during paid working time

disrupt the kitchen operation. Petitioner does not dispute that

he made and received frequent calls on company time for personal

reasons.

18. Sometimes Mr. Studner would enter the restaurant and

see Petitioner talking on the phone. Mr. Studner would

reprimand Petitioner, reminding him that phone calls on company

time were restricted to emergency calls only.

19. Mr. Studner had video surveillance of the kitchen at

IHOP 35 in his corporate office in Ormond Beach, Florida.

Mr. Studner and his bookkeeper, Steven Skipper, observed

Petitioner talking on his cell phone when Mr. Studner was not in

the restaurant.

20. Eventually, Mr. Studner decided to transfer Petitioner

to another one of his restaurants to alleviate the tension

caused by Petitioner at IHOP 35. After one day at the other

restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because

he realized that Petitioner was unable to get along with the

staff at the new location.

21. Respondent never gave Petitioner any managerial

responsibilities. Petitioner did not approach Mr. Studner or

otherwise apply for the position of Kitchen Manager or any

position other than cook. Respondent never denied Petitioner a

promotion.

22. In December or January 2007, Respondent hired Larry

Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not

previously worked with Respondent, but he had extensive

management experience at three different restaurants.

23. When Mr. Delucia began working at IHOP 35, Petitioner

and the other cooks were asked to help familiarize him with the

menu and the set-up of the kitchen and coolers. They were not

asked to train Mr. Delucia, whose job included scheduling and

working on the computer, as well as supervising the kitchen.

24. In February 2008, Petitioner told a white busboy named

John to bring him some plates. John then told Petitioner that

he was not John's boss and called Petitioner a "fucking nigger."

The front-end manager, Pam Maxwell, immediately suspended John

for a week but allowed him to return to work after two days.

Mr. Studner was not aware of the incident involving John.

25. Petitioner then asked Mr. Delucia and Ms. Maxwell for

the telephone number of Bob Burns, the district manager for the

International House of Pancakes, Inc. Mr. Studner was not aware

of Petitioner's request for Mr. Burns' telephone number.

26. Days later, Mr. Studner instructed Mr. Delucia to

terminate Petitioner's employment. The greater weight of the

evidence indicates that Mr. Studner decided to terminate

Petitioner solely because of his continued cell phone usage on

company time as observed in person and on surveillance tapes.

27. At first, Petitioner did not realize he had been

permanently terminated. During the hearing, Petitioner

testified that he tried to return to work by talking to

Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did

not return Petitioner's calls.

28. For years, Mr. Studner has employed African-Americans

to work as servers, cooks, hostesses, kitchen managers, front-

end managers, and general managers. Mr. Studner owns five other

restaurants, including two other IHOPs. Over the last two

years, Mr. Studner has hired three African-American general

managers.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes (2009).

30. It is unlawful for an employer to discriminate against

any individual based on such individual's race. See

§ 760.10(1)(a), Fla. Stat.

31. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes, as amended, was patterned

after Title VII of the Civil Rights Act of 1964, 42 U.S.C.S.

2000e et seq. , and federal case law interpreting Title VII is

applicable to cases arising under the FCRA. See Green v. Burger

King Corp. , 728 So. 2d 369, 370-371 (Fla. 3rd DCA 1999); Florida

State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996).

32. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against him. See Florida Dep't of Transportation v. J.W.C.

Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1991).

33. Petitioner can establish a case of discrimination

through direct evidence, statistical evidence, or circumstantial

evidence. See Holifield v. Reno , 115 F.3d 1555, 1561-1562 (11th

Cir. 1997). Petitioner has not presented any statistical

evidence.

34. Petitioner also failed to produce any direct evidence

of race discrimination. Direct evidence of discrimination is

evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without any

inference or presumption. See Maynard v. Board of Regents of

the Division of Universities of the Florida Department of

Education , 342 F.3d 1281, 1289 (11th Cir. 2003); Merritt v.

Dillard Paper Co. , 120 F.3d 1181, 1189 (11th Cir. 1997);

Chambers v. Walt Disney World Co. , 132 F. Supp. 2d 1356 (M.D.

Fla. 2001). Evidence that only suggests discrimination, or that

is subject to more than one interpretation, does not constitute

direct evidence of discrimination. Id.

35. Additionally, in order for a statement to constitute

direct evidence of discrimination, it must be made by the

employer or its agents, must specifically relate to the

challenged employment decision and must reveal blatant

discriminatory animus. See Jones v. Bessemer Carraway Medical

Center , 151 F.3d 132 (11th Cir. 1998).

36. In this case, the racial slurs were made by co-workers

with no supervisory authority. Mr. Studner was aware of only

one such comment months after it happened. Each of the co-

workers was disciplined for his or her highly offensive remarks

that were unrelated to any adverse employment decision by

Mr. Studner. Petitioner failed to show direct evidence of

discrimination. To the contrary, Petitioner received raises

based on objective measures.

37. In a case lacking direct evidence of discrimination,

the burden of proof is allocated as set forth in McDonnell

Douglas Corp. v. Green , 441 U.S. 792, 802-805 (1973). That case

states that an employment discrimination case based on

circumstantial evidence involves the following analysis:

(a) the employee must first establish a prima facie case of

discrimination; (b) the employer may then rebut the prima facie

case by articulating a legitimate, nondiscriminatory reason for

the employment action in question; and (c) the employee then

bears the ultimate burden of persuasion to establish that the

employer's proffered reason for the action taken is merely a

pretext for discrimination.

Failure to Promote

38. To establish a prima facie case of discrimination for

failure to promote, Petitioner must show the following: (a) he

is a member of a protected group; (b) he was qualified and

applied for the promotion; (c) he was rejected despite his

qualifications; and (d) other equally or less qualified

employees who were not members of the protected class were

promoted. See Welch v. Mercer Univ. , 2008 U.S. App. LEXIS 26291

(11th Cir. Dec. 24, 2008).

39. Petitioner presented no evidence to show that he

requested consideration for the position of kitchen manager or

that he had the necessary experience for the job. He certainly

did not prove that Mr. Delucia was equally or less qualified.

There is no merit to Petitioner's claim that Respondent

unlawfully failed to promote him.

Termination

40. To establish discrimination in discipline, Petitioner

must show the following: (a) he belongs to a protected group

such as a minority race; (b) he was qualified for the job;

(c) he was subjected to an adverse employment action; and (c) a

similarly-situated employee engaged in the same or similar

misconduct but did not receive similar discipline or

termination. See Nicholas v. Board of Trustees , 251 Fed Appx.

637, 642 (11th Cir. 2007).

41. To determine whether employees are similarly situated,

one must consider whether "the employees are involved in or

accused of the same or similar conduct and are disciplined in

different ways." See Maniccia v. Brown , 171 F.3d 1364, 1368

(11th Cir. 1999).

42. In order to make that determination, courts "require

that the quantity and quality of the comparator's misconduct be

nearly identical to prevent . . . second-guessing employers'

reasonable decisions and confusing apples with oranges.” Id. at

1368.

43. Petitioner failed to present evidence that he was

similarly situated with any other employee relative to his cell

phone use on company time. Therefore, he has not proven his

prima facie case of unlawful termination.

44. Moreover, Respondent had a legitimate non-

discriminatory reason for terminating Petitioner's employment.

That reason was Petitioner's refusal to follow the policy

prohibiting personal calls on company time. Petitioner has not

proved that Respondent's reason for terminating him was a

pretext for discrimination.

Hostile Work Environment

45. To prove a case of hostile work environment,

Petitioner must establish the following: (a) he belongs to a

protected group; (b) he was subjected to unwelcome harassment;

(c) the harassment was based on the protected characteristic of

race; (d) the harassment was sufficiently severe or pervasive to

alter the terms and conditions of employment and thus, create a

discriminatorily abusive work environment; and (e) the employer

is responsible for that environment under a theory of either

direct or vicarious liability. Miller v. Kenworth of Dothan ,

277 F.3d (11th Cir. 2002).

46. In this case, Petitioner has not shown that his co-

workers' conduct was so severe or pervasive to create an

objectively hostile or abusive work environment. See Watkins v.

Bowden , 105 F.3d 1344, 1355 (11th Cir. 1997).

47. In determining whether harassment objectively alters

an employee's terms or conditions of employment, the following

factors must be considered: (a) the frequency of the conduct;

(b) the severity of the conduct; (c) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (d) whether the conduct unreasonably interferes

with the employee's job performance. See Harris v. Forklift

Systems, Inc. , 510 U.S. 17, 23 (1993).

48. Here, the alleged harassment occurred in isolated

incidences over a 15-month period and was intermittent at most.

It was Petitioner's habit of talking on his cell phone and

taking breaks at peak times and not his co-workers' name calling

that interfered with his job performance and harmony in the

kitchen.

49. Furthermore, Petitioner has not shown that Respondent

is liable for the co-workers’ statements. If an alleged

harasser is not the employee's supervisor, then the employer may

only be held liable for the harasser's conduct if the employer

knew or should have known of the harassment and failed to take

prompt remedial action. See Watson v. Blue Circle, Inc. , 324

F.3d 1252, 1259 (11th Cir. 2003).

50. Remedial action that results in the cessation of

harassment precludes any recovery by an employee. See Bryant v.

School Bd. of Miami Dade County , 142 Fed. Appx. 382, 385 (11th

Cir. 2005).

51. In this case, Petitioner's co-workers did not have

power to take any tangible, adverse employment action against

Petitioner. Petitioner's supervisors always took action to

correct problems as they arose. There is no persuasive evidence

that Petitioner's co-workers continued to use racial slurs when

referring to Petitioner after receiving appropriate discipline.

52. Mr. Studner was only aware of one racial slur

involving Kevin. Mr. Studner removed Kevin from IHOP 35 and

bought him back months later to the night shift because

Petitioner objected to working with Kevin on the day shift

again.

53. Finally, Petitioner was eager to return to his job

after being told to go home in February 2008. He has not proved

that he worked in a hostile environment, subjectively or

objectively.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Complaint and Petition for

Relief.

DONE AND ENTERED this 31st day of December, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this day of , .

COPIES FURNISHED :

Sebrina L. Wiggins, Esquire

Landis, Graham French

145 East Rich Avenue, Suite C

Deland, Florida 32721

Paul J. Scheck, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue, Suite 1000

Post Office Box 4956

Orlando, Florida 32802

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.