09-003961 Cira Caiminti vs. The Furniture Enterprises, Llc, D/B/A Lane Home Furniture And The Leather Galleries, Inc. Status: Closed Recommended Order on Wednesday, December 16, 2009.

Summary: Petitioner proved that Respondent discriminated against her based on her sex and national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CIRA CAIMINTI, )

)

Petitioner, )

)

vs. ) Case No. 09-3961

)

THE FURNITURE ENTERPRISES, LLC, )

d/b/a LANE HOME FURNITURE and )

THE LEATHER GALLERIES, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 29,

2009, by video teleconference with hearing 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: David W. Glasser, Esquire

Glasser and Handel

116 Orange Avenue

Daytona Beach, Florida 32114

For Respondents: Dominic Persampiere

Corporate Representative

485 Suncrest Court

Oviedo, Florida 32765

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondents committed an unlawful employment practice by discriminating

against Petitioner based on her sex and national origin;

(b) whether Respondents retaliated against Petitioner for

complaining about the alleged discrimination; and, if so,

(c) what relief should be granted.

PRELIMINARY STATEMENT

On or about December 15, 2008, Petitioner Cira Caiminti

(Petitioner) filed an Employment Charge of Discrimination with

the Florida Commission on Human Relations (FCHR). The charge

listed the names of the Respondents as "The Furniture

Enterprises, LLC, d/b/a Lane Home Furnishings and d/b/a Leather

Galleries, Inc." The charge listed Respondents' address as

4200 Church Street, Suite 1030, Sanford, Florida.

Petitioner's charge alleged that Respondents had

discriminated against her based on her sex and national origin.

The charge also alleged that Respondents had retaliated against

her by terminating her employment.

On or about June 16, 2009, FCHR issued a Determination:

Cause. The Determination: Cause named "The Furniture

Enterprises, LLC DBA Lane Home Furn" as Respondent and Dominic

Persampiere as Respondent's owner. The Determination: Cause was

sent to Mr. Persampiere, at 485 Suncrest Court, Oviedo, Florida.

On July 21, 2009, Petitioner filed a Petition for Relief

with FCHR. Petitioner listed "The Furniture Enterprises, LLC,

d/b/a Lane Home Furniture DBA Leather Galleries, Inc." as

Respondents. The petition listed Respondents' address as

485 Suncrest Court, Oviedo, Florida.

FCHR referred the case to the Division of Administrative

Hearings on July 24, 2009. FCHR's Transmittal of Petition

listed "The Furniture Enterprises, LLC D/B/A Lane Home

Furniture" as Respondent. The transmittal was sent to Dominic

Persampiere at 485 Suncrest Court, Oviedo, Florida.

The record clearly shows that Petitioner intended to name

both Respondents in her charge and petition and that the

managing partners/owners/ officers/ directors of both

Respondents received sufficient notice of Petitioner's

discrimination claims and of the hearing date. In fact, Dominic

Persampiere appeared at the hearing to speak on behalf of both

Respondents, claiming that both companies had been dissolved and

that they had no assets. Therefore, the style of the case is

hereby changed to name Respondents "The Furniture Enterprises,

LLC d/b/a Lane Home Furnishings, and The Leather Galleries,

Inc." (hereinafter collectively referred to as Respondents).

The Division of Administrative Hearings initially assigned

the case to Administrative Law Judge Ella Jane P. Davis. On

August 27, 2009, Mr. Persampiere sent a letter to Judge Davis'

secretary without serving it on Petitioner. On August 28, 2009,

Judge Davis issued a Notice of Ex-Parte Communication.

On September 16, 2009, Judge Davis issued an Amended Notice

of Hearing by Video Teleconference. The notice scheduled the

hearing for October 29 and 30, 2009. Subsequently, the Division

of Administrative Hearings transferred the case to the

undersigned.

During the hearing, Petitioner presented the testimony of

two witnesses. Petitioner offered six exhibits that were

accepted as evidence. Copies of Petitioner's exhibits are

attached to Petitioner's Proposed Recommended Order.

Respondents presented the testimony of one witness.

Respondents offered one exhibit that was accepted as evidence.

A transcript of the hearing was not filed with the Division

of Administrative Hearings. Petitioner filed a Proposed

Recommended Order on November 10, 2009. As of the date that

this Recommended Order was issued, Respondents had not filed

proposed findings of fact and conclusions of law.

All references to Florida Statutes are to the 2007

codification, unless otherwise indicated.

FINDINGS OF FACTS

1. Petitioner is a female of Hispanic origin. She came to

the United States from Cuba.

2. Respondents are employers within the meaning of the

Florida Civil Rights Act of 1992, as amended, Section 760.10,

Florida Statutes.

3. Respondent Furniture Enterprises, LLC (Furniture

Enterprises) is a Florida limited liability company. Its

mailing address is 4200 Church Street, Suite 1030, Sanford,

Florida. The managing partners of Furniture Enterprises are

Dominic Persampiere, and his father, Anthony Persampiere.

4. During the hearing, Dominic Persampiere testified that

Furniture Enterprises, LLC, had no assets. In support of this

testimony, Respondents offered a copy of an Order Authorizing

Possession of Collateral that was entered on January 15, 2009,

in Lane Furniture Industries, Inc. a/k/a Lane Home Furnishings

Retail, Inc. v. Furniture Enterprises, L.L.C. , in Case No. 08-

CA-6968-16-W in the Circuit Court of the 18th Judicial Circuit,

in and for Seminole County, Florida.

5. Mr. Persampiere also testified that Furniture

Enterprises conducted its last day of business on November 30,

2008, and was subsequently dissolved. However, there is no

competent evidence that Furniture Enterprises was dissolved

pursuant to Chapter 608, Florida Statutes, so as to discharge it

from liability for all known and unknown claims, including the

one at issue here.

6. At all times relevant here, Furniture Enterprises

conducted business in the fictitious name of Lane Home

Furnishings. Furniture Enterprises was a licensed retailer for

Lane Furniture Industries, Inc. a/k/a Lane Home Furnishings

Retail, Inc.

7. Respondent, The Leather Galleries, Inc. (Leather

Galleries), is a Florida for-profit corporation. Its mailing

address is 4200 Church Street, Suite 1030, Sanford, Florida

32771. Dominic and Anthony Persampiere are the officers/

directors of Leather Galleries. Persuasive evidence indicates

that Leather Galleries was dissolved effective September 30,

2008. However, there is no competent evidence that Leather

Galleries was dissolved pursuant to Chapter 607, Florida

Statutes, so as to discharge it from liability for all known and

unknown claims, including the one at issue here.

8. T.L.G. Furniture, Inc., is a Florida for-profit

corporation that is located at 4200 Church Street, Suite 1030,

Sanford, Florida. T.L.G Furniture, Inc., owns Leather

Galleries. Dominic and Anthony Persampiere are the

owners/officers/directors of T.L.G. Furniture, Inc. Persuasive

evidence indicates that T.L.G. Furniture, Inc. was voluntarily

dissolved effective September 30, 2008. However, there is no

competent evidence that Leather Galleries was dissolved pursuant

to Chapter 607, Florida Statutes, so as to discharge it from

liability for all known and unknown claims, including the one at

issue here.

9. Furniture Enterprises and Leather Galleries had common

management, ownership, and financial control. They shared a

centralized control of labor relations. Even so, the two

business organizations do not constitute an integrated

enterprise because they sold different merchandise, kept

separate books, filed their taxes using different FEIN and sales

tax numbers and, most importantly, maintained separate

operations, including using separate delivery trucks. There is

no competent evidence to show that merchandise was moved from

one entity to the other.

10. Petitioner interviewed with Anthony Persampiere at

4200 Church Street, Suite 1030, Sanford, Florida, for a job as a

retail sales consultant for Furniture Enterprises. In September

2007, Anthony Persampiere hired Petitioner to work for Furniture

Enterprises in the Lane Home Furnishings store located in

Kissimmee, Florida.

11. A person by the name of Todd was the manager of the

Kissimmee store. Petitioner had no trouble getting along with

the manager and sales staff in Kissimmee. There is no competent

evidence to the contrary.

12. After several weeks, Anthony Persampiere gave

Petitioner the opportunity to transfer to another Lane Home

Furnishings store. Petitioner subsequently began working at the

Lane Home Furnishings store located in Altamonte Springs,

Florida. The Altamonte Springs store was closer to Petitioner's

home.

13. Al Persampiere, the brother of Dominic Persampiere and

son of Anthony Persampiere, was the manager of the Lane Home

Furnishings Store in Altamonte Springs. Petitioner wrote two

memoranda to Al Persampiere to complain about the "mishandling

of the up-list" by sales consultants Gary David and Charles

McCormick. The up-list is a rotating list of names that

determines which salesperson gets the next customer.

14. Petitioner later referred to her co-workers at the

Lane Home Furnishings store in Altamonte Springs as a

"rebellious duo." She referred to Gary David as "poisonous and

distant" after Al attempted to correct the "list trickery."

15. Petitioner was the top salesman in the Lane Home

Furnishings Altamonte Springs store at one point in December

2007. Nevertheless, Anthony Persampiere transferred Petitioner

to the Leather Galleries in January 2008 in part as a result of

her complaints and her inability to get along with her co-

workers. Petitioner's testimony to the contrary is not

persuasive because her testimony is inconsistent with her

statements in Petitioner's Exhibit P3.

16. Petitioner did not have to fill out any papers to make

the transfer to Leather Galleries. She continued to receive her

paychecks prepared by PBS (Paycheck Business Systems) of Central

Florida, Inc. The paychecks from Furniture Enterprises and

Leather Galleries had different employer identification numbers.

17. The Leather Galleries store was located across the

street from the Lane Home Furnishings store in Altamonte

Springs. A person named Dan was the manager at the Leather

Galleries. A person named Ben was a male Caucasian sales

consultant.

18. On or about February 8, 2008, Ben called Petitioner

stupid because she came from an island. He stated that all such

people are stupid and ignorant and that everyone should speak

Spanish to Petitioner. Ben also spoke about the size of his

penis, telling Petitioner and a co-worker named Brenda what he

had done with it.

19. Dan was present at the time of the verbal abuse on

February 8, 2008, but said nothing to Ben. When Petitioner

complained, Dan stated, "I told you Ben was like that. One

minute he is nice and the next minute he changes. . . ."

20. On February 9, 2008, Brenda and Petitioner went to Dan

to complain and make Dan aware about Ben's use of the "f" word.

Petitioner wanted Dan to make Ben stop embarrassing her in front

of other associates and customers.

21. On February 11, 2008, Petitioner wrote Dan a

memorandum describing Ben's constant harassing behavior as set

forth above. Petitioner requested that Dan take care of the

matter without delay. There is no evidence that Dan took any

corrective action.

22. On the morning of February 15, 2008, Petitioner was at

work by 9:35 a.m., ready to take the first customer. Ben signed

in as the second salesperson on the up-list.

23. The first customer to arrive wanted to speak to the

manager. Petitioner then decided to take the second customer.

Ben immediately began accusing Petitioner of taking his

customer.

24. Ben began cursing Petitioner, saying the "f" word,

stating she was a piece of "s," and claiming that he was going

to kick her ass. Ben told Petitioner that she would see who

would leave first because she was a troublemaker that no one,

including Al and Todd, wanted.

25. Petitioner immediately went to Dan's office and found

the room empty. Realizing that she was alone with Ben,

Petitioner called the corporate office located at 4200 Church

Street, Suite 1030, Sanford, Florida. She also called the

police and filed an electronic complaint against Ben.

Petitioner then waited outside for the police to arrive.

26. When the police arrived, Al came across the street

from the Lane Home Furnishings store to speak to them. Al

represented himself as manager of the Leather Galleries. Al

told the police that he had problems with Petitioner in the

past. Al then sent Petitioner home, telling her to "go home,

take a bubble bath, and relax."

27. On February 15, 2008, Petitioner wrote a memorandum to

Dominic, Anthony, and Al Persampiere regarding the police report

dated that same day. In the statement, Petitioner reviewed the

facts of the incident with Ben earlier that day and other

incidences involving Ben's inappropriate behavior.

28. Petitioner's memorandum stated that she was a threat

to Ben, who wanted her out. Petitioner complained that she, and

not Ben, had been sent home. Petitioner also wanted Dominic,

Anthony, and Al to remove Al's comment, about her being a

problem in past, from the police report. Petitioner faxed the

memorandum to the corporate office at 4200 Church Street,

Sanford, Florida.

29. The next day, Petitioner went to work at the Leather

Galleries. Dan and all the other sales associates, including

Ben, were at the store. Petitioner was waiting for a customer

when she got a telephone call from Anthony Persampiere, telling

her that she was terminated. Ben was not disciplined for his

inappropriate behavior on February 15, 2008.

30. Petitioner has not been able to find a job after being

terminated by Leather Galleries. She has looked for jobs in

retail sales and telemarketing. She has applied for 20-to-30

jobs a week, receiving no interviews or call backs.

31. While Petitioner was employed with Respondents, she

earned a draw of $300 per 40-hour week plus commissions in

excess of the draw. She has suffered a minimum of $26,400 in

lost wages.

CONCLUSIONS OF LAW

32. 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).

33. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of

sex/gender or national origin.

34. Section 760.10(7), Florida Statutes, states that 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 . . . ."

35. 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).

36. 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, proves [the]

existence of [a] fact in issue without inference or

presumption.'" See Id. (quoting Burrell v. Bd. of Trustees of

Ga. Military College , 125 F.3d 1390, 1393 (11th Cir. 1997).

37. In discrimination cases alleging disparate treatment,

the Petitioner generally 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.

38. 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. See Id. , Alexander v. Fulton

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

39. The employee must then come forward with specific

evidence demonstrating that the reasons given by the employer

are a pretext for discrimination. In other words, the employee

must that the employer intentionally discriminated against him

or her. See St. Mary's Honor Center, et al. v. Hicks , 509 U.S.

502 (1993); Department of Corrections v. Chandler , supra at

1186; Alexander v. Fulton County, Georgia , supra .

Direct Evidence

40. Here, Petitioner presented evidence of direct

discrimination based on sex/gender and national origin.

Petitioner complained to Dan, the manager of Leather Galleries,

that Ben was making blatant inappropriate sexual comments and

was embarrassing her in front of customers and co-workers by

disparaging her ethnic heritage. There is no evidence that

Leather Galleries ever took corrective action. Instead, Al, the

manager of a Lane Home Furnishing store, acting in the capacity

of a manager of Leather Galleries, subsequently made an

offensive remark related to Petitioner's gender when he told her

to go home and take a bubble bath.

Disparate Treatment

41. To establish a prima facie case regarding Petitioner’s

allegation that Respondents unlawfully discharged her based on

her sex/gender or national origin, Petitioner must prove that:

(1) she is a member of a protected class; (2) she was qualified

for the job; (3) she was subjected to an adverse employment

action; and (4) similarly situated employees outside

Petitioner's protected class were treated more favorably. See

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

42. Petitioner is a female of Hispanic origin who was

qualified for the position of sales consultant. She was

discharged while Ben, a male Caucasian sales consultant, was not

disciplined for his inappropriate behavior on February 15, 2008.

Therefore, Petitioner has established a prima facie case of

disparate treatment against Leather Galleries.

43. During its case-in-chief, Leather Galleries presented

no competent evidence regarding the reason it discharged

Petitioner. Instead, Mr. Persampiere testified that Furniture

Enterprises and Leather Galleries were dissolved business

organizations with no assets.

44. Leather Galleries presented no competent evidence to

refute Petitioner's allegations or to explain why she was

terminated. Thus, Petitioner has met her ultimate burden of

proving discrimination based on her sex/gender and national

origin.

Retaliation

45. To prove a prima facie case of retaliation, Petitioner

must show the following: (a) she engaged in a protected

activity; (b) she suffered an adverse employment action; and

(c) that there is some causal link between her protected

activity and the adverse employment action. See Holifield v.

Reno , 115 F.3d at 1566. "To meet the causal link requirement,

the plaintiff 'merely has to prove that the protected activity

and the negative employment action are not completely

unrelated.'" See Holifield v. Reno , 115 F.3d at 1566 (quoting

E.E.O.C. v. Reichhold Chemicals, Inc. , 988 F.2d 1564, 1571-72

(1th Cir. 1993)).

46. Petitioner engaged in a protected activity when she

complained verbally and in writing about Ben's inappropriate and

discriminatory behavior. She was fired without explanation on

February 16, 2008, the day after she called the police and sent

a facsimile transmission to the Persampieres, complaining once

again about Ben's behavior.

47. Leather Galleries presented no evidence to show that

it fired Petitioner for reasons unrelated to her allegations in

this case. Petitioner has established a causal link between her

complaints about Ben and her termination. She has proved that

Leather Galleries unlawfully retaliated against her.

48. Petitioner is entitled to a minimum of $26,400 in lost

wages. There is no evidence to the contrary.

49. Petitioner seeks an award of attorney's fees pursuant

to Section 760.11(6), Florida Statutes, which gives FCHR

discretion to award a reasonable attorney's fee to a prevailing

party. Thus, an administrative law judge does not have

jurisdiction to consider any such award.

50. Petitioner was not working for Furniture Enterprises

when any of the above-referenced unlawful employment practices

occurred. Because Furniture Enterprises and Leather Galleries

are not integrated business organizations, only Leather

Galleries is liable to Petitioner.

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 against

Respondent Furniture Enterprises, LLC, granting the Petition for

Relief against Leather Galleries, Inc., and awarding Petitioner

lost wages in the amount of $26,400.

DONE AND ENTERED this 16th 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 16th day of December, 2009.

COPIES FURNISHED :

David W. Glasser, Esquire

Glasser & Handel

116 Orange Avenue

Daytona Beach, Florida 32114

Dominic Persampiere

The Furniture Enterprises, LLC, d/b/a

Lane Home Furniture

485 Suncrest Court

Oviedo, Florida 32765

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.