14-001920 Eric Wendell Holloman vs. Lee Wesley Restaurants, D/B/A Burger King Status: Closed Recommended Order on Monday, July 28, 2014.

Summary: Petitioner failed to demonstrate that he was discriminated against in a place of public accommodation on the basis of a disability. The Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC WENDELL HOLLOMAN,

Petitioner,

vs. Case No. 14 - 1920

LEE WESLEY RESTAURANTS, d/b/a

BURGER KING,

Respondent.

_______________________________/

RECOMMENDED ORDER OF DISMISSAL

A duly - noticed hearing was held in this case on June 19,

2014 by video teleconference in Tallahassee, Florida, and

Jacksonville, Florida, before Suzanne Van Wyk, an Administrative

Law Judge assigned by the Division of Administrative Hearings

(Division).

APPE ARANCES

For Petitioner: Eric Wendell Holloman , pro se

Post Office Box 13153

Jacksonville, Florida 32206

For Respondent: Karen K. Rose, Qualified Representative

Lee Wesley Restaurants

6817 Southpoint Parkway , Suite 2101

Jacksonville, Florida 32216

STATEMENT OF THE ISSUE

Whether Respondent is liable to Petitioner for public

accommodation discrimination based on PetitionerÓs handicap, in

violation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

Petitioner, Eric Wendell Holloman, filed a Complaint of

Discrimination (Complaint) against Burger King Restaurant on

November 27, 2013. While the Complaint is filed on a form

titled ÐEmployment Complaint of Discrimination,Ñ Petitioner

alleges a case of public accommodation discrimination.

The F lorida Commission on Human Relations (Commission)

investigated the Complaint, and on April 14, 2014 issued a

Determination: No Cause, and Notice of Determination: No

Cause, determining no reasonable cause existed to believe an

unlawful public accommodati on discrimination practice occurred.

Petitioner timely filed with the Commission a Petition for

Relief from an unlawful public accommodation practice, which was

forwarded to the Division on April 25, 2014, for assignment of

an Administrative Law Judge to c onduct the final hearing in this

matter.

The final hearing commenced as scheduled on June 19, 2014,

by video teleconference in Tallahassee and Jacksonville.

Petitioner testified on his own behalf and offered no

exhibits. Respondent was represented by Kare n Rose , its

Qualified Representative, and offered E xhibits P1 through P4,

which were admitted into evidence. Respondent attempted to

introduce the testimony of Ronald Gibson, whose testimony was

excluded because Respondent did not disclose his name and

ad dress to Petitioner at any time prior to the hearing, in

violation of the Initial Order entered on April 25, 2014.

The final hearing was recorded by a court reporter;

however, the parties did not order a transcript of the

proceedings. Both parties timely filed Proposed Recommended

Order s which ha ve been considered in preparation of this

Recommended Order.

FINDING S OF FACT

1 . Petitioner, Eric Wendell Hol loman , is a 60 - year - old man

who resides in Jacksonville, Florida , and has been diagnosed

with arthritis, diabetes, and high blood pressure.

2 . Respondent, Lee Wesley Restaurants, LLC, is the owner

and operator of the Burger King restaurant located at 210 East

State Street in Jacksonville, Florida. The corporate

headquarters are located at 6817 Southpoint P arkway, Suite 2101,

Jacksonville, Florida 32216.

3 . At all times relevant hereto, Respondent employed more

than 15 employees.

4 . Petitioner has a driverÓs license, but he asserted that

he does not know how to drive a car. PetitionerÓs primary

method of transportation is his bicycle.

5 . Petitioner eats at a number of fast - food restaurants in

the area of State Street in Jacksonville. Petitioner testified

that he canÓt cook because he doesnÓt have a wife.

6 . Petitioner administers his own insulin to tre at his

diabetes and takes medication for high blood pressure.

7 . Petitioner uses a walking cane which was provided to

him by the local VeteranÓs Administration where he receives

medical care.

8 . PetitionerÓs cane is metal with four ÐlegsÑ extending

outwa rd from the bottom of the upright metal post. Each leg is

capped with a rubber Ðfoot.Ñ The cane will stand up on its own

when not in use.

9 . Petitioner recounts the following events in support of

his claim of public accommodation discrimination:

On Jun e 4, 2013, Petitioner entered the Burger King in

question, ordered a meal with a drink, and took it to a table in

the dining area where he proceeded to eat. At some point while

he was dining, Petitioner accidentally knocked over his drink

with his cane, w hich he testified was on the table with his

food. Petitioner testified that no employee of the restaurant

spoke to Petitioner about the spill, offered to help him clean

it up, or otherwise acknowledged that he spilled his drink.

Petitioner did not clean up the spill either. Petitioner

helped himself to a drink refill and left the restaurant without

incident.

The following day, June 5, 201 3 , he entered the same

restaurant and attempted to order a meal. According to

Petitioner , he was told by an employee that he must leave and he

would not be served at that restaurant. Petitioner identified

Randall Gibson, the man seated with RespondentÓs Qualified

Representative at the final hearing, as the employee that asked

him to leave the restaurant on June 5, 201 3 .

Petitioner exited the restaurant via the rear door, which

he testified was close to the flag pole where he had parked his

bicycle. According to Petitioner, two Burger King employees

followed him outside and threatened him with Ðbodily harmÑ if he

return ed to the restaurant.

Petitioner was clearly upset with Mr. Gibson and other

employees of the Burger King. Petitioner explained that on

June 4, 2013, when Petitioner ordered his food at the counter,

Mr. Gibson and a female employee were engaged in behavio r he

found offensive. Specifically, Petitioner testified that

Mr. Gibson was Ðup behindÑ the female employee engaging in hip

and pelvic gyrations. Petitioner twice stood up from his chair

and demonstrated the hip and pelvic gyrations to the

undersigned.

10 . Petitioner testified that he has at least 50 cases

pending in state and federal courts alleging civil rights

violations.

11 . The final hearing was one and one - half hours in

duration. Only a small portion of the hearing time was devoted

to presentat ion of evidence relevant to PetitionerÓs claim of

discrimination based on a disability . During his testimony,

Petitioner often strayed into lengthy tirades against racial

discrimination, quoting from the United States Constitution, as

well as the writings of Dr. Martin Luther King, Jr., and other

leaders of the Civil Rights Movement. The undersigned had to

frequently reign in PetitionerÓs testimony to relevant events.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction over th e subject matter of, and the parties to,

this proceeding. § 120.569 and 120.57(1), Fla. Stat. (2014) .

13 . Section 760.08, Florida Statutes (2013), 1 / provides as

follows:

760.08 Discrimination in places of public

accommodation. Ï All persons shall be

entitl ed to the full and equal enjoyment of

the goods, services, facilities,

privileges, advantages, and accommodations

of any place of public accommodation, as

defined in this chapter, without

discrimination or segregation on the ground

of race, color, national origin, sex,

handicap, fa milial status, or religion.

14 . Section 760.02 defines Ðpublic accommodationsÑ as

follows:

(11) ÐPublic accommodationsÑ means places

of public accommodation, lodgings,

facilities principally engaged in selling

food for consumption on the premises,

gasoline stations, places of exhibition or

entertainment, and other covered

establishments. Each of th e following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

* * *

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling

food for consumption on the premises,

including, but not limited to, any such

facility located on the premises of any

retail establishment, or any gasoline

station.

15 . Respondent is a Ðpublic accommodationÑ for the

purposes of the statute.

Burden of Proof

16 . Title II of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a, prohibits discrimination in places of public

accommodation, in identical language as that found in s ection

760.08, Florida Statutes, except for the omission of certain

protected classes, inclu ding handicap. Due to the lack of

Title II cases, federal courts routinely find guidance in the

law of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, including the law of the shifting burdens of production

of evidence. See Fahim v. Marriot t Hotel Servs. , 551 F.3d 344,

349 (5th Cir. 2008), and cases cited therein. The United States

Supreme CourtÓs model for employment discrimination cases set

forth in McDonnell Douglas Corp . v. Green , 411 U.S. 792 (1973),

also provides the model for Title I I cases. Fahim , 551 F.3d at

349 - 350.

17 . Under the McDonnell analysis, as modified for cases of

discrimination in places of public accommodation, Petitioner has

the burden of establishing a prima facie case of unlawful

discrimination. If the prima faci e case is established, the

burden shifts to Respondent to rebut this preliminary showing by

producing evidence that the alleged discriminatory action was

taken for some legitimate, non - discriminatory reason. If

Respondent rebuts the prima facie case, the burden shifts back

to Petitioner to show by a preponderance of the evidence that

RespondentÓs offered reason was pretextual or that RespondentÓs

reason, if true, was only one reason for its action and that

another motivating factor was PetitionerÓs protect ed

characteristic.

18 . In order to prove a prima facie case of unlawful

public accommodation discrimination under section 760.08,

Petitioner must establish that: (1) he is a member of a

protected class; (2) he attempted to contract for services of a

pu blic accommodation; (3) he was denied those services; and

(4) the services were made available to similarly situated

persons outside his protected class. Fahim , 551 F.3d at 350.

Handicap

19 . Petitioner alleges that he was denied the equal

enjoyment of RespondentÓs services based on his handicap.

Petitioner identifies his handicap as having to walk with a cane

due to arthritis in his knees and hips .

20 . There is no definition for the term ÐhandicapÑ used in

section 760.08, Florida Statutes, and the Co mmission has not

adopted a rule to define the term.

21 . The courts have construed the term ÐhandicapÑ in

c hapter 760 in accordance with the definitions of ÐdisabilityÑ

in the federal Rehabilitation Act of the Americans with

Disabilities Act (ADA). See, e .g. , St. JohnÓs Sch. Dist. v.

OÓBrien , 973 So. 2d 535, 540 (Fla. 5th DCA 2007); Green v.

Seminole Elec. Coop. , 701 So. 2d 646, 647 (Fla. 5th DCA 1997);

Brand v. Fla. Power Corp. , 633 So. 2d 504, 510 n. 10 (Fla. 1st

DCA 1994).

22 . A petitioner has a Ðdisab ilityÑ for purposes of the

ADA if he (1) has Ða physical or mental impairment that

substantially limits one or more of the major life activities of

such individualÑ; (2) has Ða record of such impairmentÑ; or

(3) is Ðregarded as having such an impairment.Ñ 42 U.S.C.

§ 12102(2); 29 C.F.R. § 1630.2(g).

23 . ÐTo rise to the level of a disability, an impairment

must significantly restrict an individualÓs major life

activities. Impairments that result in only mild limitations

are not disabilities.Ñ Lewis v. Ar len House East Condo. Assoc. ,

Case No. 11 - 5475 (Fla. DOAH June 12, 2012).

24 . The ADA does not define Ðmajor life activities.Ñ

Bolton v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994).

However, t he Equal Employment Opportunit y Commission (EEOC)

regu lations broadly define Ðmajor life activityÑ to include

caring for oneself, performing manual tasks, seeing, hearing,

eating, sleeping, walking, standing, and working. 29 CFR

§ 1630.2(i).

25 . The determination whether an impairment substantially

limits a major life activity requires an individualized

assessment. 29 CFR § 1630.2(j)(1)(iv). In relevant part, the

regulations suggest considering Ðthe nature and severity of the

impairment.Ñ 29 CFR § 1630.2(j)(4).

26 . As applied to the major life activity o f walking, an

individual who, due to an impairment, walks at an average speed,

or even at moderately below average speed, is not disabled. See

Turner v. the Saloon, Ltd. , 595 F.3d 679 , 689 (7th Cir. 2010)

( citing 29 C.F.R. app. ) ; Rossbach v. City of Miami , 371 F.3d

1354, 1358 (11th Cir. 2004)(Ðsomeone who walks, sits, stands, or

sleeps Òmoderately below averageÓ is not disabled under the

Act.Ñ) See also , Wells v. Willow Lake Estates , 390 Fed. Appx.

956, 958 (11th Cir. 2010)(plaintiff who contended he Ðcan not

bend or move easilyÑ has not adequately pled that he is

disabled); Lewis , Case No. 11 - 5475 , RO at 9 - 10 (petitioner did

not demonstrate that her impairment rose to the level of a

disability when she offered no testimony that her arthritis

caused her to walk at a slower pace than other individuals, have

difficulty with balance, break frequently when walking, or use

an assistive device).

27 . U se of an assistive device for walking is probative of

whether an individual is substantially limited in his or her

ability to walk. See Drexel Univ. , 94 F.3d at 106 (affirming

the district courtÓs holding that, Ðas a matter of law that

[plaintiffÓs] trouble climbing stairs [] does not substantially

limit his ability to walkÑ where plaintiff Ðpresented no

evidence tha t he required special devices like a cane or

crutches to aid him in walking.Ñ); Lewis , Case No. 11 - 5475, RO

at 9 (petitioner did not demonstrate that her impairment rose to

the level of a disability where there was no Ðevidence that

Petitioner has difficul ty with balance, utilizes an assistive

device (e.g., a walker or cane), moves at a slower pace than

most individuals, requires frequent breaks, or is in any manner

severely restri cted in her ability to walk.Ñ).

28 . However, the use of an assistive device is not the

sine qua non of being substantially limited in walking. See

EEOC v. E.I. DuPont de Nemours & Co. , 406 F. Supp. 2d 645, 656

(E.D. La. 2005), affÓd , 480 F. 3d 724 (5th Cir. La. 2007), revÓd

in part , 480 F. 3d 724 (5th Cir. La. 2007)(reversed as t o award

of front pay only). The appropriate inquiry is not whether an

individual uses an assistive device, but whether the individual

is Ðsignificantly restricted as to the condition, manner, or

durationÑ in which he can walk as compared to an average per son

in the general population.Ñ Id. , quoting , 29 CFR

§ 1630 .2(j)(1)(ii).

29 . The only evidence introduced by P etitioner to prove

that his arthritis limits his ability to walk is his claim that

he walks with a cane. Petitioner offered no other evidence t o

demonstrate that he is significantly restricted as to the

condition, manner, or duration in which he can walk as compared

to an average person in the general population.

30 . The undersigned carefully considered PetitionerÓs

evidence, along with his te stimony that he rides a bicycle every

day, and the agility demonstrated by the hip and pelvic

gyrations he offered more than once during the final hearing.

PetitionerÓs evidence is insufficient to establish that his

impairment rises to the level of a disab ility.

31 . Petitioner offered no evidence that he either Ðhas a

record of a disabilityÑ or is Ðregarded as having a disability.Ñ

32 . Thus, Petitioner has failed to prove the first element

of a prima facie case of public accommodation discrimination Î

tha t he i s a member of a protected class , i.e, handicap .

33 . Assuming, arguendo , Petitioner did prove he had a

handicap pursuant to the Act, the undersigned does not find that

Petitioner proved the third element Î that he was denied the

services of the Burge r King establishment in question. 2 /

PetitionerÓs evidence was limited to his personal testimony,

which was simply not credible. It is within the purview of the

trier - of - fact to weigh the conflicting evidence and make a

determination as to the credibility of witnesses. See Heifetz

v. DepÓt of Bus. Reg. , 475 So. 2d 1277 (Fla. 1st DCA 1985).

34 . Petitioner testified that he left the restaurant via

the Ðback doorÑ which was closer to his bicycle, leaving the

undersigned with a number of questions and doubts : Why would

Petitioner exit the restaurant through the Ðback doorÑ which was

Ðcloser to where his bicycle was parkedÑ but enter the

restaurant through a door which was further from where his

bicycle was parked? Why would Petitioner place his cane, which

stands up on its own, on the table while he was eating ? H ow did

Petitioner knock over his drink with the cane ?

35 . Further, it is implausible that Burger King employees

were so upset over the spill that they banned Petitioner from

the restaurant the fo llowing day, but not one Burger King

employee spoke to Petitioner about the spill on the day it

occurred . It is equally implausible that the Burger King

M anager was performing a bump and grind with a cashier in full

view of the patrons of the restaurant.

36 . Finally, PetitionerÓs credibility was sorely

undermined by his revelation that he has filed over 50 civil

rights cases in state and federal courts, as well as his

numerous colorful detours into issues unrelated to

discrimination on the basis of disabi lity.

37 . Petitioner failed to carry his burden of proof to

establish a prima facie case of public accommodation

discrimination based on a disability by a preponderance of the

evidence .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing the Petition for Relief

filed by Eric Wendell Holloman in FCHR No. 2013 - 02160 .

DONE AND ENTERED this 2 8 th day of July , 2014 , in

Tallahassee, Le on County, Florida.

S

SUZANNE VAN WYK

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of July , 2014 .

ENDNOTE S

1 / Except as otherwise noted herein, all statutory references

are to the 2013 version of the Florida Statutes.

2 / There is no quest ion that Petitioner attempted to contract

for the services provided by the Burger King, thus satisfying

the second element of a prima facie case.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Karen K. Rose , Controller

Lee Wesley Restaurants

6817 Southpoint Parkway , Suite 2101

Jacksonville, Florida 32216

Eric Wendell Holloman

Post Office Box 13153

Jacksonville, Florida 32206

Chey anne Costilla, Gen eral Co unsel

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.