12-000116 Western Ulysse vs. Steak N Shake Status: Closed Recommended Order on Tuesday, August 28, 2012.

Summary: Petitioner did not meet his burden of proving discrimination by a preponderance of the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESTERN ULYSSE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0116

)

STEAK N SHAKE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on July 27, 2012, in Orlando, Florida,

before Administrative Law Judge R. Bruce McKibben of the Division

of Administrative Hearings. The parties were represented as set

forth below.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent: Heather J. Casagrande, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 Nort h Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Steak N Shake,

discriminated against Petitioner, Western Ulysse, on the basis of

his national origin (Haitian) , or race (black) , in violation o f

the Florida Civil Rights Act.

PRELIMINARY STATEMENT

Petitioner filed an employment complaint with the Florida

Commission on Human Relations dated June 23, 2011. Upon review

and consideration of the complaint, the Commission entered a

Notice of Determina tion: No Cause , dated December 15, 2011.

Petitioner then filed a Petition for Relief, seeking a de novo

formal administrative hearing to contest the finding of No Cause.

The Petition was forwarded to the Division of Administrative

Hearings (DOAH) on Janu ary 10, 2012, and assigned to the

undersigned Administrative Law Judge . On July 26, 2012,

Respondent filed a Motion for Summary Final Order; the motion was

denied on the bas e s of timeliness and lack of jurisdiction.

A final hearing was held on July 27, 20 12 , in Orlando,

Florida. Petitioner testified on his own behalf and did not

offer any exhibits into evidence. Respondent called one witness,

Judith Freeman, and introduced the video - taped deposition of one

other witness, Lori Briel. Respondent's E xhibit s 6, 7, 9, 11,

12, 14, 25, 28 through 30, and rebuttal Exhibit 1 were admitted

into evidence. A copy of the video - taped deposition was also

made part of the record.

Petitioner objected to the presentation of Ms. Briel's

deposition in lieu of attendance at final hearing. Petitioner

argued that there are only limited exceptions in Fl orida Rules of

Civil Procedure 1.330 . One of those exceptions, however, is that

"the party offering the deposition has been unable to procure

the attendance of the witness by s ubpoena." Fla. R. Civ.

P. 1.330 (a)(3)(D). Ms. Briel, who purportedly had started a new

job just days prior to the final hearing, was subpoenaed by

Respondent , but did not appear at final hearing. Thus, it was

appropriate to use the deposition t ranscript in lieu of live

testimony. Further, under Florida Administrative Code Rule

28 - 106.211, the Administrative Law Judge may take whatever action

necessary to promote the just, speedy, and inexpensive

determination of all aspects of the case. Petitioner was

represented by counsel at the deposition of Ms. Briel, thereby

alleviating any prejudice which might inure from using her

deposition. It is ordered that use of the deposition is

consistent with the rules, would promote the just and speedy

determination of facts, and is proper in all re spects .

At the conclusion of the final hearing, the parties advised

that a copy of the transcript would be ordered. By rule, the

parties were allowed ten days from the filing of the transcript

at DOAH to file their proposed recommended orders (PROs). The

T ranscript was filed at DOAH on August 3, 2012. Respondent

timely filed a PRO , and it was considered in the preparation of

this Recommended Order. Petitioner did not file a PRO until

August 20, 2012, some three weeks afte r it was due. Respondent

did not file an objection to Petitioner 's late - filed PRO, so both

parties' PROs were considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Petitioner is a black man, born in Haiti. He was hired

by Steak N Shake on April 26, 1998, as a production worker and

cook. He was later promoted to a manager position at Store

No. 281 in Lake Buena Vista. He worked at that store for about

eight years and then transferred to Store No. 280 on West

Colonial Drive in Orl ando (the "Store") on an unspecified date.

The general manager at the Store was Judith Freeman, a white

female. There was one other manager at the store, Ilia Velez, a

Hispanic woman. 1/

2. Petitioner's duties as manager at the Store included

providing good service to customers, maintaining an appropriate

number of employees each day, ordering food and other supplies

for the Store, and ensuring cleanliness and orderliness at the

Store. It was also the duty of managers to make bank deposits of

daily rece ipts. Petitioner did not have an exact time for

starting work each day, but said he normally started at about

noon for the "day shift."

3. Each and every day, managers at the Store would complete

a Daily Cash to Account for Form (the "TAF Form"), reflec ting the

amount of money collected on each of the three daily shifts. The

first shift was late night/early morning; the second shift was

the day shift; and the third shift was evening. As day - shift

manager, Petitioner would sign the TAF Form for receipts from the

night shift. It was then incumbent upon him to deposit the

collected monies at the bank. A TAF Form was to be signed by two

individuals, one of whom (generally a manager) would indicate by

his/her signature that they would be responsible for de positing

the receipts.

4. According to Steak N Shake policy, deposits had to be

made at the bank by a manager "and one other Steak N Shake

employee. NO ONE GOES TO THE BANK ALONE." That policy was in

place at the Store when Petitioner served as manager . However,

it was common practice at the Store for Petitioner or another

manager to go to the bank alone. Petitioner knew the policy and

knew that his employment could be terminated for violating the

policy. He explained that sometimes on first shift th ere were

only two people at the store in the morning, so he had to go to

the bank alone. Steak N Shake policies allow for a police

officer to substitute as one of the two required persons.

Further, an employee who cannot comply with the policy is

suppose d to contact the district manager as soon as possible.

Nonetheless, the policy was routinely ignored by managers at the

Store during the 2011 time - frame.

5. It was also policy for the bank deposit to be made

before 11:00 a.m. for the previous night's rec eipts. Petitioner

did not explain how he complied with that requirement when he

normally arrived at work at noon. He apparently worked earlier

shifts some days and day shifts other days, but there is

insufficient evidence in the record to substantiate th at

presumption.

6. On May 24, 2011, however, Petitioner testified that he

arrived at work around 7:00 a.m. At approximately 10:41 a.m.,

Petitioner signed the TAF Form from the previous day, indicating

a deposit amount of $770.47 (the "Deposit"). Petitio ner signed

the TAF Form on the line of the form designated "Witnessed By"

when , in fact , he, as manager, should have signed on the line

designated "Deposited By." On this particular form, it appears

the manager and the other employee signed on the wrong l ines.

Regardless of that scrivener's error, Petitioner became

responsible for taking the Deposit to the bank once he signed the

TAF Form.

7. Petitioner said there were only two people working that

morning, but the work schedule for the Store indicates at least

five other persons were on the schedule for that morning. None

of the workers was called to testify at final hearing, but the

general manager, Ms. Freeman, said she believed they were all

working that day. Ms. Freeman was also scheduled to work that

day, but was taking part in management training outside the

store.

8. Petitioner did not notify the district manager that he

could not comply with the banking policy.

9. The Deposit was never received by the bank. Petitioner

said at final hearing that he did not go to the bank with the

Deposit , even though he had signed for it. He believes he sent

another manager with the D eposit because it was very busy that

morning , and there were not enough employees available to handle

the work. His testimon y in that regard is not persuasive ,

because the bank deposit slip for May 24, 2011, was signed by

Petitioner.

10. On June 9, 2011, the general manager, Ms. Briel, was

told that the Deposit had never been made at the bank. She

contacted the Store's general manager, Ms. Freeman, and asked her

to investigate. Ms. Freeman did so , but could not locate the

missing money. The bank also tried , but failed to locate the

missing money.

11. Ms. Freeman then contacted Petitioner to let him know

the Deposit he had sig ned for was missing. Petitioner was given

the opportunity to replace the missing money from his own funds

to prevent termination of his employment, but said he did not

have sufficient money in his account to do so. After completing

her investigation, Ms. Freeman met Ms. Briel at a site away from

the Store and disclosed her findings. Per protocol, the police

were called to investigate the missing funds. No arrest was ever

made, however.

12. Ms. Briel considered Ms. Freeman's findings, consulted

with the division president, the human resources department, and

legal counsel and decided to terminate Petitioner's employment

with Steak N Shake. Ms. Briel also issued counseling statements

to Ms. Freeman and Ms. Velez relating to their failure to

strictly adhe re to the banking policies. Ultimately, Ms. Freeman

was demoted to r estaurant manager and transferred to another

store due , in large part , to the violation of company policies

relating to bank deposits.

13. Petitioner had been counseled several times for

shortcomings, but none of the violations were related to banking

policies. Nonetheless, Petitioner was made aware that further

disciplinary action against him for any issue may result in the

termination of his employment.

14. Petitioner feels he was treat ed differently than

Ms. Velez, who he maintains also lost a deposit. However,

Ms. Velez' s deposit was ultimately accounted for by the bank,

which had made a mistake. Petitioner's deposit was never

accounted for by the bank or by anyone else. Ms. Velez' s

employment with Steak N Shake was ultimately terminated for

"performance issues."

15. Other managers have lost deposits and/or stolen money

from Steak N Shake. In every instance, the offending manager's

employment was terminated. There is z ero tolerance at Steak N

Shake for misappropriation of money.

16. Petitioner cannot recite any incident of discrimination

against him by Steak N Shake on the basis of his race or national

origin. Petitioner did not ever avail himself of the procedures

for issuing a co mplaint based on discrimination while he was

employed at Steak N Shake.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to section 120.57 and

120.569, Florida Statutes. 2/

18. Petitioner claims dis crimination under the Florida

Civil Rights Act, sections 760.01 through 760.11, Florida

Statutes. Section 760.10(1) states that it is unlawful for an

employer to discharge or otherwise discriminate against an

employee on the basis of, inter alia, his or h er place of

national origin or race.

19. Petitioner has the burden of proving by a preponderance

of the evidence that Steak N Shake committed an unlawful

employment practice. Fla. Dep't of Transp. v . J.W.C. Co., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner is claiming

intentional discrimination by Steak N Shake, an unlawful

employment practice.

20. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Di rect evidence of discrimination

is evidence that, if believed, establishes the existence of

discriminatory intent behind an employment decision without

inference or presumption. Maynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003).

21. " ' Direc t evidence ' is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor."

Schoenfeld v. Babbitt , supra . There is no direct evidence of

discrimination in this case.

22 . Absent direct evidence, a person who claims to be a

victim of intentional discrimination may "establish their case

through inferential and circumstantial evidence." Kline v. Tenn.

Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997). When attempting

to prov e a case through circumstantial evidence, the shifting

burden analysis set forth in McDonnell Douglas v. Green , 411 U.S.

792 (1973), should be applied. Under this analysis, the charging

party bears the initial burden of establishing a prima facie case

of discrimination. If proven, then the burden would shift to the

employer to articulate a legitimate, non - discriminatory

explanation for the employment action. See Dep't of Corr. v.

Chandler , 582 So . 2d 1183 (Fla. 1st DCA 1991). The employer has

a burden o f production, not persuasion, and need only present

evidence that the decision was non - discriminatory. Id .

23. It is up to the employee to then present evidence to

demonstrate that the reasons given by the employer for its

actions are a pretext for discr imination. Schoenfeld v. Babbitt ,

supra , at 1267. The employee must directly show that a

discriminatory reason more likely than not motivated the decision

or, in the alternative, show that the proffered reason for the

employment decision is not worthy of belief. Dep't of Corr. v.

Chandler , supra , at 1186; Alexander v. Fulton Cnty. , 207 F.3d

1303 (11th Cir. 2000).

24. This shifting burden of proof and production does not

change the fact that the ultimate burden of persuading the trier

of fact that the em ployer intentionally discriminated against the

employee remains with the employee. EEOC v. Joe's Stone Crabs,

Inc. , 296 F . 3d 1265, 1273 (11th Cir. 2002).

25. In order for Petitioner in this action to establish his

prima facie case, he must show that: (1 ) h e is a member of a

protected class; (2) h e was qualified for his position; (3) h e

was subjected to an adverse employment action; and (4) h is

employer treated similarly - situated employees, outside of his

protected class, more favorably than he was treate d. See

McDonnell , supra ; Burke - Fowler v. Orange Cnty. , 447 F.3d 1319,

1323 (11th Cir. 2204); Maynard v. Bd. of Regents of the Div. of

Univs. o f the Fla. Dep't of Educ. , 342 F . 3d 1281 (11th Cir.

2003); Dep't of Child . and Fams . v. Garcia , 911 So. 2d 171

(F la. 3d DCA 2005).

26. Clearly Petitioner in the instant action is a member of

a protected class, specifically his Haitian national origin and

his race, which he described as "black." He was also qualified

for his position, having served several years as a store manager.

The adverse employment action taken by the employer was discharge

of Petitioner from his position. However, there is no showing ,

whatsoever , that Steak N Shake treated similarly - situated

employees outside Petitioner's protected class mor e favorably

than he was treated.

27. There is no evidence of discrimination in this case.

The termination of Petitioner's employment by Respondent was

based on Petitioner's loss of Steak N Shake revenues for which he

was responsible.

RECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Commission on Human Relations denying Western Ulysse's

Petition for Relief .

DONE AND ENTERED this 28th day of August , 2012 , in

Tallah assee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August , 2012 .

ENDNOTE S

1/ There is a hierarchy of management at Steak N Shake. A

"manager" is the lowest level of management, followed by a

re staurant manager, a general manager, and then a district

manager.

2/ Unless specifically stated otherwise herein, all references to

the Florida Statutes will be to the 2012 version .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

La wrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

Heather J. Casagrande, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

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.