09-005221 Michael Hogg vs. Arena Sports Cafe Status: Closed Recommended Order on Wednesday, March 31, 2010.

Summary: Petitioner did not prove a prima facie case of race discrimination. Respondent demonstrated a legitimate, non-discriminatory reason for Petitioner's termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL HOGG, )

)

Petitioner, )

)

vs. ) Case No. 09-5221

)

ARENA SPORTS CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on February 2, 2010,

in Deland, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: David Glasser, Esquire

Glasser & Handel

116 Orange Avenue

Daytona Beach, Florida 32114

For Respondent: Steven deLaroche, Esquire

1005 South Ridgewood Avenue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Complaint of Discrimination

filed by Petitioner on April 22, 2009.

PRELIMINARY STATEMENT

On April 22, 2009, Petitioner, Michael Hogg, filed an

Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR), which alleged that Arena

Sports Cafe violated Section 760.10, Florida Statutes, by

discriminating against him on the basis of race and retaliation,

which resulted in his termination. The Employment Complaint of

Discrimination alleged that Petitioner was subjected to a

disparaging racial slur, complained about it, and was ultimately

terminated and replaced by a Caucasian male.

The allegations were investigated and on August 17, 2009,

FCHR issued its Determination: No Cause. A Petition for Relief

was filed by Petitioner on September 21, 2009.

FCHR transmitted the case to the Division of Administrative

Hearings on or about September 23, 2009. A Notice of Hearing

was issued setting the case for formal hearing on December 3 and

4, 2009. A Motion for Continuance was granted and the case

rescheduled for February 2 and 3, 2010. The hearing proceeded

as scheduled, and concluded in one day.

At hearing, Petitioner testified on his own behalf and

presented the testimony of Robert Preeper. Petitioner’s

Exhibits numbered 1 through 3 were admitted into evidence.

Respondent presented the testimony of Anthony Cyr,

Warren Fisher, Joe Rotondi, and Trisha Lawrence. Respondent’s

Composite Exhibit 1 was admitted into evidence.

The hearing was not transcribed. The parties timely filed

Proposed Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African-American male who was employed

by Respondent from August 2008 until his termination on or about

January 9, 2009.

2. Respondent, Arena Sports Café (Arena), is an employer

within the meaning of the Florida Civil Rights Act. Arena is a

restaurant/night club which offers the viewing of televised

sporting events, and is generally known as a sports bar. Arena

is adjacent to The Coliseum, another establishment with the same

owners, Trisha Lawrence and Randy Berner. The owners are

Caucasian. The Coliseum is an entertainment venue with live and

recorded music, dancing, and stage acts. The Coliseum does not

serve food, and does not have a kitchen.

3. When hired in August 2008, Petitioner worked as a prep

cook as part of the kitchen staff. He performed various duties

including preparation of meals in the kitchen as well as

preparing food for Respondent’s large salad bar. Petitioner

holds a Food Handling Certificate and a Safe Serve Certificate,

which he attained through a local college. Petitioner was paid

$12.00 per hour, and generally worked a 40-hour work week. At

the time Petitioner was hired, the Arena was brand new and very

popular.

4. When the Arena opened in August 2008, it featured lunch

and dinner seven days per week. Weekends were particularly busy

because college and pro football games were televised in the

fall. However, the Arena saw a drop in demand for weekday

lunches.

5. During the fall of 2008, Anthony Cyr, a Caucasian, was

employed by Arena as its general manager. Petitioner was

already employed by Respondent when Mr. Cyr began employment

there.

6. According to Petitioner, Mr. Cyr used the word “nigger”

(the "N" word) in the context of telling a joke on three

occasions in October and November 2008. Mr. Cyr used this word

in the presence of the kitchen staff, including Petitioner.

Petitioner informed Mr. Cyr that this was offensive and

objected. Mr. Cyr did not use the "N" word other than these

three occasions, and did not use it again after Petitioner

objected. Petitioner did not report this incident to anyone,

including the owners of Arena.

7. As one of the owners of Arena, Ms. Lawrence would

sometimes eat meals at Arena. At some point in January 2009,

she voiced her displeasure to Mr. Cyr as to meals which she

believed to have been prepared by Petitioner. She was never

made aware of Petitioner’s allegations regarding the use of

racial slurs by Mr. Cyr.

8. According to Ms. Lawrence, she instructed Mr. Cyr to

terminate Petitioner from employment because of his cooking

abilities. Mr. Cyr informed Petitioner that his employment was

terminated, and informed him that it was due to his job

performance. Mr. Cyr also informed Petitioner that the decision

to terminate Petitioner was Ms. Lawrence’s, not his.

9. Mr. Cyr’s testimony regarding using the “N” word

contradicts Petitioner’s testimony, and is somewhat inconsistent

with Ms. Lawrence’s testimony regarding the reason Petitioner

was fired. That is, Mr. Cyr denies using the “N” word in front

of Petitioner. As for the reason he fired Petitioner, Mr. Cyr

testified that it was due to a reduction in business following

football season. There is no dispute, however, that

Ms. Lawrence was the decisionmaker regarding the decision to

fire Petitioner.

10. Regarding the conflicting testimony as to whether

Mr. Cyr used the “N” word, the undersigned finds Petitioner’s

testimony in this regard to be credible and more persuasive.

That is, the undersigned finds that Mr. Cyr did use the “N” word

in front of Petitioner in the workplace.

11. As for the reason Petitioner was fired, Ms. Lawrence

did acknowledge that business slowed down at Arena around the

time she instructed Mr. Cyr to fire Petitioner, and that the

salad bar was phased out the month after Petitioner was

terminated. However, she insists that she instructed Mr. Cyr to

fire Petitioner because of the quality of his cooking. In any

event, there does not appear to be a dispute that Mr. Cyr told

Petitioner that he was being fired due to job performance

issues. At some time after Petitioner was terminated, Mr. Cyr

was terminated from Arena because, in Ms. Lawrence’s words, he

“was not that great.”

12. When Petitioner was terminated, two Caucasian cooks

remained employed at Arena. While Petitioner was not actually

replaced, his duties were assumed by the remaining Caucasian

staff.

13. Since his termination, Petitioner has worked for

approximately three weeks at another eating establishment.

Otherwise, he has been unsuccessful finding employment despite

his efforts.

14. Respondent employs minorities and non-minorities in

positions with both Arena and The Coliseum. The undersigned has

reviewed the evidence of record, oral and written, as to the

number of minority and non-minority employees and as to whether

Respondent hired primarily non-minority persons in the better

paying positions. The evidence of record is insufficient to

support a finding that Respondent engaged in racially motivated

hiring practices.

15. There is no evidence that Petitioner complained to

Ms. Lawrence or the other owner of Arena that he was being

discriminated against on the basis of race. When he complained

to Mr. Cyr, the offending remarks stopped.

16. There was no competent evidence presented that

Ms. Lawrence knew of the racial slur used by Mr. Cyr in the

workplace in Petitioner’s presence. There is no evidence that

Ms. Lawrence’s decision to terminate Petitioner from employment

was related in any way to any racial remark used by Mr. Cyr.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (2009).

18. Section 760.10(1), Florida Statutes (2008), states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of race.

19. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

20. Discriminatory intent can be established through

direct or circumstantial evidence. See Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of

discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. See Maynard v. Board of

Regents of the Division of Universities of the Fla. Dept. of

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

21. “Racially derogatory statements can constitute direct

evidence of discrimination if the comments were (1) made by the

decisionmaker responsible for the alleged discrimination and

(2) made in the context of the challenged decision. However, if

an alleged statement fails either prong it is considered a

‘stray remark’ and does not constitute direct evidence of

discrimination." Vickers v. Federal Express Corp. , 132 F. Supp.

2d 1371 (S.D. Fla. 2000), citing Wheatley v. Baptist Hospital of

Miami , 16 F. Supp. 2d 1356, 1359-60, aff’d 172 F.3d 882 (11th

Cir. 1999).

22. “For statements of discriminatory intent to constitute

direct evidence of discrimination, they must be made by a person

involved in the challenged decision.” Wheatley , supra at 1360,

quoting Trotter v. Board of Trustees of Univ. of Alabama , 91

F.3d 1449, 1453-54 (11th Cir. 1996).

23. Despite Mr. Cyr's having been in a position of

management when he informed Petitioner of his termination from

employment, Mr. Cyr was not the decisionmaker. There is no

dispute that Ms. Lawrence was the decisionmaker and there is no

evidence that she was aware that a racial slur took place. Nor

is there any evidence that Mr. Cyr approached Ms. Lawrence or in

any way suggested to her that Petitioner be fired. Mr. Cyr

fired Petitioner because he was told to do so by Ms. Lawrence,

and told Petitioner it was because of his job performance.

Thus, it is concluded that Petitioner has not presented direct

evidence of racial discrimination.

24. Having failed to produce direct evidence of racial

discrimination, Petitioner bears the burden of proof established

by the United States Supreme Court in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). Under this well

established model of proof, the complainant bears the initial

burden of establishing a prima facie case of discrimination.

When the charging party, i.e. , Petitioner, is able to make out a

prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non-discriminatory

explanation for the employment action. See Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non-discriminatory. Id. Alexander v. Fulton

County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The employee

must then come forward with specific evidence demonstrating that

the reasons given by the employer are a pretext for

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason more likely than

not motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief." Department of Corrections v. Chandler , supra at 1186;

Alexander v. Fulton County, Georgia , supra . Petitioner has not

met this burden.

25. To establish a prima facie case, Petitioner must prove

that (1) he is a member of a protected class ( e.g. , African-

American); (2) he was subject to an adverse employment action;

(3) his employer treated similarly situated employees, who are

not members of the protected class, more favorably; and (4) he

was qualified for the job or benefit at issue. See McDonnell ,

supra ; Gillis v. Georgia Department of Corrections , 400 F.3d 883

(11th Cir. 2005).

26. Petitioner has met the first and second elements to

establish a prima facie case of discrimination in that he is a

member of a protected class and was subject to an adverse

employment action, i.e. , termination. Arguably, Petitioner has

proven the third element, that his employer treated similarly

situated employees who are not members of the protected class

more favorably. That is, the remaining members of the kitchen

staff were Caucasian.

27. As to the fourth element, Petitioner was initially

hired for the job, but did not perform his job as expected by

his employer. Thus, he did not prove the fourth element of

establishing a prima facie case regarding his being qualified

for the job.

28. Applying the McDonnell analysis, Petitioner did not

meet his burden of establishing a prima facie case of

discriminatory treatment. Assuming that Petitioner had

demonstrated a prima facie case of discriminatory conduct,

Respondent demonstrated a legitimate, non-discriminatory reason

for Petitioner’s termination. That is, the owner and

decisionmaker was dissatisfied with his job performance.

29. Even if it were necessary to go to the next level of

the McDonnell analysis, Petitioner did not produce any evidence

that Respondent’s legitimate reasons were pretext for

discrimination. Therefore, Petitioner has not met his burden of

showing that a discriminatory reason more likely than not

motivated the actions of Respondent toward Petitioner or by

showing that the proffered reason for the employment decision is

not worthy of belief. Consequently, Petitioner has not met his

burden of showing pretext. "The employer may fire an employee

for a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all, as long as its action is not for

a discriminatory reason." Department of Corrections v.

Chandler , supra at 1187, quoting Nix v. WLCY Radio/Rahall

Communications , 738 F.2d 1181, 1187 (11th Cir. 1984).

30. In summary, Petitioner has failed to carry his burden

of proof that Respondent engaged in racial discrimination toward

Petitioner when it terminated him.

31. To make a prima facie case of retaliation, Petitioner

must show that he engaged in protected activity, that he

suffered adverse employment action, and that there is some

causal relation between the protected activity and the adverse

employment action. Casiano v. Gonzales , 2006 U.S. Dist. Lexis

3593 (N.D. Fla. 2006); Jeronimus v. Polk County Opportunity

Council, Inc. , 2005 U.S. App. Lexis 17016 (11th Cir. 2005).

The evidence established that he complained to Mr. Cyr, the

person who made the racial remark, two months before the

decision was made to terminate him. However, he did not

complain to Ms. Lawrence (about unlawful discriminatory

treatment), the decisionmaker. Petitioner has not established

that there is a causal relationship between the protected

activity (complaining about the remark to Cyr) and the adverse

employment action.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 31st day of March, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 31st day of March, 2010.

COPIES FURNISHED :

David Glasser, Esquire

Glasser & Handel

116 Orange Avenue

Daytona Beach, Florida 32114

Steven deLaroche, Esquire

1005 South Ridgewood Avenue

Daytona Beach, Florida 32114

Larry Kranert, 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.