12-000886 Shekita Hill vs. Subway Status: Closed Recommended Order on Monday, January 7, 2013.

Summary: Petitioner did not prove employment discrimination; and Respondent did not meet the definition of an employer under the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEKITA HILL , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0886

)

GOGA BAP CORPORATION, d/b/a )

SUBWAY STORE NO. 13268 , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 24, 2012 , in L akeland , Florida before

Thomas P. Crapps, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jerry Girley, Esquir e

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent: Matthew D. Westerman, Esquire

Blalock Walters, P.A.

802 11th Street , West

Bradenton, Florida 34205

STATEMENT OF THE ISSUE S

Whe ther Petitioner established that Respondent is an

" employer " under the Florida Civil Rights Act (FCRA) ,

section 760.02(7), Florida Statutes (2011), 1/ in order to confer

jurisdiction on the Florida Commission on Human Relations

(Commission) ; and

W hether Pe titioner established by a preponderance of the

evidence that Respondent retaliated a gainst Petitioner for filing

a complaint with the federal Equal Employment Opportunity

Commission (EEOC) , in violation of the FCRA , section 760.10(7) .

PRELIMINARY STATEMENT

On November 2, 2011, Petitioner, Shekita Hill (Ms. Hill) ,

filed with the Commission a complaint alleging that Subway

retaliated against her based on her filing a discrimination

complaint with EEOC on January 31, 2011. Specifically, Ms. Hill

alleged that Subway retaliated against her by cutting her work

hours. Further, Ms. Hill alleged that as a result of the lost

income, she had to apply for gover nment assistance, and that

Subway provided false information that disqualified her from

receiving government assistance.

On February 28, 2012, the Commission issued a determination

that no reasonable cause existed to support the retaliation

claim. On March 12, 2012, Ms. Hill filed a Petition for Relief

with the Commission claiming that she was " retaliated agai nst

because I filed an EEOC complaint against my employer. "

Specifically, Ms. Hill alleged that Subway retaliated against her

by "reducing her work hours and unfairly reducing her authority

and falsely writing her up." The Commission transmitted the

Peti tion for Relief to DOAH for a formal hearing.

At the final hearing, Ms. Hill testified in her own behalf

and called Satish Patel (Mr. Patel). Ms. Hill did not introduce

any exhibits into evidence. Goga Bap Corporation (Goga Bap)

called Mr. Patel and intr oduced into evidence E xhibits numbered

1, 2 , and 11 . 2 / A one - volume Transcript was filed with DOAH on

N ovember 19, 2012. The parties submitted proposed recomm ended

order s which have been considered in the preparation of this

Recommended Order.

FINDING S O F FACT

1. Ms. Hill is an African - American female who began working

at a Subway restaurant located in Winter Haven, Florida , as a

sandwich artist in 2005 . By 2007, Ms. Hill had been promoted to

an assistant manager , and charged with opening the restaurant .

Ms. Hill 's responsibilities for opening the restaurant required

her to be at work by 8:30 a.m. in order to start baking the bread

for the day's sandwiches and preparing the sandwich toppings, so

that the restaurant could open by 10:00 a.m. A s the assis tant

manager , Ms. Hill earned $9.25 an hour.

2. Goga Bap purchased the Subway restaurant where Ms. Hill

worked, located in Winter Haven, Florida, in February 2009.

Following Goga Bap ' s purchase, Mr. Patel hired his family members

as managers and empl oyees in the restaurant. At the time of the

purchase, Mr. Patel hired Ms. Hill as a sandwich artist at $9.00

an hour. Although she was no longer an assistant manager,

Ms. Hill kept her duties of opening the restaurant.

3. Goga Bap owns only one Subwa y restaurant franchise, and

during the relevant time period, Mr. Patel was Goga Bap ' s sole

shareholder. Mr. Patel and his wife own another Subway

restaurant , located in Auburndale, Florida, t hrough a separate

legal entity, Om Shakti Corporation . Thi s sec ond Subway franchise

is operated independently of the Subway franchise owned and

operated by Goga Bap. Further, Mr. Patel owns a minority interest

in two Subway franchises in Jacksonville, Florida. The record

shows that the franchises in Winter Haven, Au burndale , and

Jacksonville are separate corporate entities, with separate

employees, separate managers, separate business accounts, and

separate tax identification numbers. Each Subway franchise

employs less than 15 employees. Moreover, even if one consi dered

th e restaurants in which Mr. Patel owns a majority interest, the

combined number of employees is less than 15 . A t most, the two

restaurants combined for 13 employees in any given week during

2010 and 2011. The Subway franchise s in Jacksonville, Flo rida, in

which Mr. Patel own s a minority interest, each hired six to seven

employees.

4. The pay roll records show that Goga Bap never employed 15

or more employees in any week in either 2010 or 2011.

5. As noted earlier, Ms. Hill 's work day was sc heduled to

begin at 8:30 a .m. in order to open the restaurant by 10:00 a.m.

From October 2010 through January 2011, Ms. Hill ' s attendance and

punctuality began to deteriorate ; thus, creating a d ifficulty in

opening the restaurant on time. For example, on the dates

October 11 through 13 , 2010, Ms. Hill was scheduled to work, but

called in sick . Consequently, Mr. Patel had to find someone at

the last minute to open the store for those dates. In addition to

the October dates, the record showed that Ms. Hi ll did not come to

work on time for her scheduled work day of December 15, 2010, and

failed to work full days on January 4 and 5, 2011. The result was

that Mr. Patel found Ms. Hill an unreliable employee .

6 . Because of Ms. Hill ' s attendance and punctu ality

problems , Mr. Patel decided to hire an additional employee to work

the weekdays with Ms. Hill. The hi ring of this additional person

cut into the restaurant ' s profitability. Consequently, b eginning

in the first work week of January 2011, Ms. Hill ' s work hours were

reduced to offset the increased costs associated with hiring an

additional employee. During the first week of January 2011,

Ms. Hill ' s hours w ere reduced to approximately 17 hours a week.

It is noted that for the weeks beginning January 26, 2011 , through

February 15, 2011, the payroll records show that Ms. Hill worked

between 23.53 hours to 28.09 hours a week. However, beginning the

week of February 23, 2011, Ms. Hill ' s work hours returned to the

level of approximately 17 hours a week.

7. Mr. Patel credibly testified that Ms. Hill did not tell

him that she believed that she was being discriminated against by

the reduction of her work hours. Further, Mr. Patel credibly

testified that he did not receive any information from Subway's

cor porate office that Ms. Hill had contacted Subway that she

believed that Mr. Patel was discriminating against her.

8. Mr. Patel credibly testified that prior to reducing

Ms. Hill ' s hours in early January 2011, he had not received

Ms. Hill's EEOC compla int . In fact, the record shows that

Ms. Hill ' s work hours had been reduced before she filed the EEOC

complaint on January 31, 2011. Thus, she failed to show that the

reduction of her work hours was a result of retaliation.

9. Ms. Hill did not bring fo rward any evidence showing that

Goga Bap fa lsely provided information on any government forms .

10. There was no credible evidence showing that the decision

to reduce Ms. Hill ' s work hours was tied or had any nexus to

Ms. Hill ' s EEOC complaint filed on J anuary 31, 2011.

CONCLUSIONS OF LAW

11 . DOAH has jurisdiction over the parties and subject

matter pursuant to section s 120.569 and 120.57, Florida Statutes

(2012) .

12 . The threshold question presented in this case is

whether Goga Bap is an " employer, " as it is defined by

section 760.02(7). The term " employer " is defined by the statute

as follows:

" Employer " means any person employing 15 or

more employees for each working day in each

of 20 or more calendar weeks in the current

or proceeding calendar y ear, and any agent of

such a person. § 760.02(7), Fla. Stat.

13. Th e facts showed that Goga Bap did not have more than

15 employees in the 20 or more calendar weeks for the Subway

franchise where Ms. Hill worked . Moreover, even if one

considered the Subway franchises in which Mr. Patel owns a

controlling interest as a "single employer , " the facts still show

fewer than 15 employees. Ms. Hill did not bring forward any

evidence showing Mr. Patel's minority ownership interest in

Subway franchises in Jac ksonville, Florida , should be considered

as a "single employer" for meeting this jurisdictional threshold

of 15 employees. See Lyes v. C ty of Riviera Beach , 166 F.3d

1332, 1340 - 1342 , n.5 (11th Cir. Fla. 1999) (discussing the

circumstances " in which it is a ppropriate to aggregate multiple

entities for the purposes of counting employees . ") . Thus,

Ms. Hill has failed to bring forward evidence showing that

jurisdiction exists under the FCRA.

1 4 . Assuming arguendo that Ms. Hill met the threshold

jurisdiction a l requirement , she failed to show by preponderance

of the evidence that she suffered retaliation in the work place.

15. The anti - retaliatory provisions of the FCRA ,

section 760.10(7) , provides:

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 under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, p roceeding, or hearing under

this section.

1 6. In order to show a prima facie cas e of retaliation , a

plaintiff must show that : (1) he or she engaged in statutorily

protected expression; (2) he or she suffered an adverse

employment action; and (3) there is some causal relation between

the two events. Olmsted v. Taco Bell Corp . , 141 F.3d 1457, 1460

(11th Cir. Fla. 1998) . The federal courts have held that the

causal link requirement under Title VII must be construed

broadly; " a plaintiff merely has to pr ove that the protected

activity and the negative employment action are not completely

unrelated. " Olmsted , 141 F.3d at 146 0 ( quoting E.E.O.C. v.

Reichhold Chem., Inc. , 988 F.2d 1564, 1571 - 72 (11th Cir.1993) ) .

Once the prima facie case is established, the employer must

proffer a legitimate, non - retaliatory reason for the adverse

employment action. The plaintiff bears the ultimate burden of

proving by a preponderance of the evidence that the reason

provided by the employer is a pretext for prohibited, reta liatory

conduct. Olmsted , 141 F.3d at 1460.

17 . Turning to the facts here, Ms. Hill failed to show that

Goga Bap took retaliatory action against her . First, it is clear

that Ms. Hill engaged in a protected action with the filing of the

EEOC complaint. See C i ty of W. Palm Beach v. McCray , 91 So. 3 d

165, 172 (Fla. 4th DCA 2012) ; and Miami - Dade C n ty. v. Eghbal , 54

So. 3d 525, 527 (Fla. 3d DCA) , review denied 71 So. 3d 117 (Fla.

2011) . Second, the facts show that the reduction of Ms. Hill ' s

work hours alt ered her compensation and conditions of employment ;

thus, she proved an adverse employment action. See Van Voorhis

v. Hillsborough Cnty Bd. of Cnty Comm'rs , 512 F.3d 1296, 1300

(11th Cir. 2008)(defining an adverse employment action as "a n

ultimate employm ent decision, such as discharge or failure to

hire, or other conduct that alters the employee's compensation,

terms, conditions, or privileges of employment, deprives him or

her of employment opportunities, or adversely affects his or her

status as an empl oyee. "). T he record, however, does not support

a causal link between the filing of the EEOC complaint and the

reduction of Ms. Hill ' s work hours. As shown earlier, Goga Bap

began reducing Ms. Hill ' s work hours before she filed the EEOC

complaint. Moreov er, Mr. Patel credibly testified that he did not

know that Ms. Hill had filed an EEOC complaint before her work

hours were reduced. Therefore, Ms. Hill failed to show that there

is causal nexus between the filing of her EEOC complaint and the

adverse empl oyment action.

18 . Again, assuming arguendo that Ms. Hill met her initial

burden of proving a prima facia case of retaliation, Ms. Hill

failed to show that Goga Bap's offered explanation for the

reduction of her work hours was pretextual. Mr. Pa tel cred ibly

testified that Ms. Hill ' s hours were reduced because of her poor

punctuality and attendance, which required the hiring of an

additional employee. Ms. Hill did not bring forward any evidence

showing that Goga Bap ' s offered reason was a pretext for an

improper purpose . Thus, Ms. Hill failed to bring forward evidence

showing retaliation.

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 of dismissing Ms. Hill ' s Petition

for Relief based on lack of jurisdiction because Goga Bap

Corporation , does not meet the statutory definition of an

employer ; or in the alternative , dismiss Ms. Hill ' s Petition for

Relief because she failed to establish her retaliation claim.

DONE AND ENTERED this 7th day of January , 201 3 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 7th day of January , 201 3 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to t he 201 1 version.

2/ Two days before the final hearing, Respondent filed a Motion

to Correct Case Caption and/or Substitute Party. Specifically,

Respondent argued that the proper party was Goga Bap Corporation

(Goga Bap), which owned the Subway franchis e where Petitioner

worked, not " Subway. " At the beginning of the final hearing, the

undersigned heard argument on Respondent ' s motion and

Petitioner ' s statement that she did not oppose the relief sought.

Consequently, the undersigned ruled that the case caption be

corrected to show that the proper party , R espondent , is Goga Bap

Corporation , doing business as Subway Store No. 13268.

3 / Ms. Hill ' s termination is not at issue in this case. Ms. Hill

filed her employment discrimination charge here on Nove mber 9,

2011, alleging retaliation of reducing her work hours based on

the filing of her EEOC complaint. The Florida Human Relations

Commission issued a no - cause determination on Ms. Hill ' s

retaliation charge on March 28, 2012. The record here shows that

Mr. Patel terminated Ms. Hill ' s employment with the Subway store

on April 4, 2012. The issue in this case concerned only whether

the reduction in Ms. Hill ' s work hours and alleged failure to

provide information concerning Ms. Hill ' s eligibility to receiv e

government benefits was in retaliation for her filing the EEOC

complaint on January 31, 2011. As such, the undersigned makes no

findings concerning whether or not Ms. Hill ' s termination

violated the FCRA .

COPIES FURNISHED:

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Jerry Girl ey, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

Matthew D. Westerman, Esquire

Blalock Walters, P.A.

802 11th Street West

Bradenton, Florida 34205

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.