13-001657 Margaret G. Taylor vs. Universal Studios Status: Closed Recommended Order on Tuesday, January 7, 2014.

Summary: Petitioner did not meet her burden of proving that Respondent terminated her employment for reasons related to Petitioner's age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET G. TAYLOR ,

Petitioner ,

vs. Case No. 13 - 1657

UNIVERSAL STUDIOS ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in thi s cause was held

by video teleconference between sites in Orlando and Tallahassee,

Florida, on November 12, 2013 , before the Division of

Administrative Hearings by its designated Administrative Law

Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: Margar et G. Taylor , pro se

8836 Darlene Drive

Orlando, Florida 32836

For Respondent: J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Ormond Beach, Florida 32173 - 1148

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

199 2, as alleged in the Charge of Discrimination filed by

Petitioner on August 7, 2012 . 1/

PRELIMINARY STATEMENT

On August 7, 2012, Petitioner, Margaret G. Taylor

(Petitioner), filed with the Florida Commission on Human

Relations ( FCHR ) a Charge of Discrimination and alleged therein

that her former employer, Universal Studios (Respondent),

unlawfully discriminated against her on the basis of age in

violation of section 760.10, Florida Statutes (2012). 2/ The

allegations were investigated, and on April 3, 2013 , FCHR issued

its Determination: No Cause. A Petition for Relief was fil ed by

Petitioner on May 6, 2013 .

FCHR transmit ted the case to the Division of Administrative

Hearings on May 7, 2013 . A t the final hearing, Petitioner

testified on her own behalf. Respondent presented the testimony

of its employees Kira Reis and Raychelle Drew . Petitioner ' s

Exhibits 1 through 4 and 6 through 8 were admitted into evidence.

Respondent ' s Exhibits 1 through 11 were admitted into evidence.

Petitioner, after the close of the evidentiary portion of the

proceeding, filed several articles related to the treatment of

dental abscesses. In t hat the articles have not been admitted

into evidence, the same were not considered by the undersigned in

preparation of this Recommended Order.

A T ranscript of the proceeding was filed with the Division of

Ad ministrative Hearings on December 20 , 201 3 . T he parties timely

filed P roposed R ecommended O rders, which h ave been considered by

the undersigned .

FINDING S OF FACT

1. At the time of her termination from employment on

August 19, 2011, Petitioner had been employed by Respondent for

approximately 18 ye ars. For approximately the last 10 years of

her employment, Petitioner was a member of the wait staff at

Lombard ' s restaurant, a full service restaurant located within

the Universal Studios theme park.

2. In her Charge of Discrimination, Petitioner alle ges that

Respondent discriminated against her on the basis of " age. " The

Charge of Discrimination provides as follows:

I. I am 65 years old. I was hired by

Universal Studios as a [s]erver in March

1994. Starting in June 2011, a new computer

system was installed. I made several errors,

and received abusive comments from Kira,

Assistant Manager. In July 2011, I was

belittled in front of other employees and

received fewer tables than other employees.

I became flustered when Kira spoke to me

[and] I comp lained to Mark, [the] Manager.

Kira claimed that she would stop, however,

she continued. On August 18, 2011, I was

separated from employment.

II. No reason was given for the above named

actions.

III. I believe that I was discriminated

against due to my age/65. . . .

3. On March 23, 2011, Petitioner ' s work - related performance

was evaluated by Respondent. Petitioner ' s evaluation noted that

she was a highly valued employee. A considerable portion of

Petitioner ' s evaluation was completed by Ms. Reis, who was

Petitioner ' s immediate supervisor.

4. Respondent has a food product policy which provides in

part that " [i]tems presented for guest purchase are not to be

consumed by a team member, unless prior purchase is made while

the team member is on break . The team member must obtain

management signature on their receipt. " The food product policy

also provides that " [v]iolation of this policy is considered

theft and will merit the appropriate disciplinary action per

Universal guidelines up to and includi ng termination. " The food

product policy applied to Petitioner, a s a member of the wait

staff .

5. On or about August 16, 2011, Kira Reis observed

Petitioner carrying a cup of espresso, which is an item that is

sold by Lombard ' s to its guests. Ms. Reis credibly testified

that as she walked towards Petitioner, she noticed that

Petitioner moved her hand , which was holding the cup of e s presso

behind her back. Petitioner ' s conduct reasonably caused Ms. Reis

to believe that Petitioner was trying to conceal t he espresso .

Noting Petitioner ' s odd behavior, Ms. Reis went to the area where

Petitioner got the espresso and questioned the employee working

in the area about whether Petitioner paid for the espresso .

Ms. Reis was advised by the employee that Petition er did not pay

for the espresso .

6. Armed with this information, Ms. Reis approached

Petitioner and questioned her about the purchase of the espresso .

When initially asked by Ms. Reis if she had purchased the

espresso , Petitioner stated that she had in fact done so. This

was a lie. Upon further questioning, Petitioner admitted that

she did not pay for the espresso and that she lied to Ms. Reis

when questioned about the same. Respondent terminated

Petitioner ' s employment on August 19, 2011, for violati ng the

food product policy.

7. Petitioner claims that she lied about having purchased

the espresso because her judgment was impaired for reasons

related to an abscessed tooth. Petitioner also claims that she

lied about the espresso because Ms. Reis used a harsh tone of

voice when questioning her about the purchase. According to

Petitioner, Ms. Reis ' tone caused Petitioner ' s " brain to freeze "

and the resulting " frozen brain, " when combined with her

abscessed tooth, caused her to tell a lie. Petitioner ' s

testimony in this regard is neither credible nor supported by

expert opinion testimony.

8. Petitioner offered no direct evidence that age was a

factor in Respondent ' s decision to discharge her from employment.

9. Petitioner ' s indirect evidence of di scrimination

consist s of allegations that Ms. Reis was unfairly critical of

Petitioner ' s work performance when compared to younger employees.

Petitioner testified that she was the oldest person at Lombard ' s.

Petitioner did not , however , offer evidence of the ages of other

staff members. Ms. Reis credibly testified that there were other

wait staff at Lombard ' s who are in the " general age categor y of

Ms. Taylor. "

10. Petitioner makes only conclusory allegations as to how

she was treated in comparison to o ther employees and these

conclusory allegations are insufficient to prove that Respondent

harbored impermissible discriminatory animus towards Petitioner.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties a nd subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (201 2 ).

12. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

13. Section 760.10(1) (a), Florida Statutes, provides, in

part, that it is an unlawful employment practice for an employer

to discharge or otherwise discriminate against an individual on

the basis of age.

14. Discriminatory intent can be established through direct

or circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257,

1266 (11th Cir. 1999). Direct evidence of discriminatio n 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).

15. " Direct evidence is composed of ' on ly the most blatant

remarks, whose intent could be nothing other than to discriminate '

on the basis of some impermissible factor. " Schoenfeld v.

Babbitt , supra . As previously noted, Petitioner presented no

direct evidence that age was a factor in Respond ent ' s decision to

discharge her from employment.

16. " [D]irect evidence of intent is often unavailable. "

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). For

this reason, those who claim to be victims of intentional

discrimination " are per mitted to establish their cases through

inferential and circumstantial proof. " Kline v. Tenn . Valley

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

17. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shift ing burden

analysis established by the U.S. 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), is applied. Under this well - established model of proof,

the charging party bears the initial burden of establishing a

prima facie case of discrimination. When the charging party,

i.e., Petitioner, is able to establish a prima facie case, the

burden to go forward shifts to the employer to articulate a

legitimate, non - discri minatory explanation for the employment

action. See Dep ' t of Corr. 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 on ly present evidence that the decision

was non - discriminatory. Id. ; Alexander v. Fulton Cnty. , 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 fo r discrimination. Schoenfeld v. Babbitt ,

supra , at 1267. The employee must satisfy this burden of

demonstrating pretext by showing directly that a discriminatory

reason more likely than not motivated the decision , or indirectly

by showing that the proffe red reason for the employment decision

is not worthy of belief. Dep ' t of Corr. v. Chandler , supra , at

1186; Alexander v. Fulton Cnty. , supra .

18. " Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading th e trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner]. " EEOC v.

Joe ' s Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002); see

also Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA

2007)( " The ultimate burden of proving intentional discrimination

against the plaintiff remains with the plaintiff at all times. " ).

Once the matter has, as in the instant case, been fully tried, " it

is no longer relevant whether the plaintif f actually established a

prima facie case [and] . . . the only relevant inquiry is the

ultimate, factual issue of intentional discrimination. " Green v.

Sch. Bd. of Hillsborough Cnty. , 25 F.3d 974, 978 (11th Cir.

1994)(citing U.S. Postal Serv. Bd. of Gov. v. Aikens , 460 U.S.

711, 714 - 15 (1983)).

19. Respondent terminated Petitioner ' s employment because

she violated Respondent ' s food product policy and lied about the

violation when confronted. Petitioner failed to establish that

Respondent ' s proffered rea son is a pretext for unlawful

discrimination. Petitioner failed to satisfy her burden of

proving that Respondent intentionally discriminated against her

when terminating her employment on August 19, 2011.

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 finding that Respondent, Universal

Studios , did not commit an unlawful employment practice as

alleged by Petitioner, Margaret G. Taylor , and denying

Petitioner ' s Charge of Discrimination.

DONE AND ENTERED this 7th day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSot o 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 7th day of January , 2014 .

ENDNOTE S

1/ On June 12, 201 2, Petitioner filed a complaint of age

discrimination with the U.S. Equal Employment Opportunity

Commission (EEOC). By letter dated June 18, 2012, EEOC advised

Petitioner that her complaint was being transferred to the

Florida Commission on Human Relation s " who has jurisdiction to

process charges received from 365 days after the date of

violation. " On August 7, 2012, Petitioner filed a Charge of

Discrimination with FCHR and alleged therein that Respondent

discriminated against her due to her age as more f ully described

elsewhere herein.

2/ All subsequent references to Florida Statutes will be to 2012,

unless otherwise indicated.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkwa y

Tallahassee, Florida 32301

Margaret G. T aylor

8836 Darlene Drive

Orlando, Florida 32836

J. Lester Kaney, Esquire

Law Office of J. Lester Kaney

Post Office Box 731148

Ormond Beach, Florida 32173 - 1148

Cheyanne Costilla, General Counsel

Florida Commis sion on Human Relations

Suite 100

2009 Apalachee Parkway

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.