14-004935 Juan Monsalvo vs. Keke's Breakfast Cafe Status: Closed Recommended Order on Friday, March 20, 2015.

Summary: Respondent's speak-English-only policy was justified by business necessity and, therefore, did not discriminate against Petitioner on the basis of national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN MONSALVO,

Petitioner,

vs. Case No. 14 - 4935

KEKE ' S BREAKFAST CAFE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Orlando and Tallahassee,

Florida, on January 13, 2015, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Richard B. Celler, Esq uire

Celler Legal, P.A.

7450 Griffin Road , Suite 230

Davie, Florida 33314

For Respondent: Alan Brent Taylor, Esquire

Alan B. Taylor and Associates, P.A.

5728 Major Boulevard , Suite 700

Orlando, Florida 32819

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Discrimination filed

by Petitioner on April 24, 2014.

PRELIMINARY STATEMENT

Petitioner, Mr. Juan Monsalvo (Petitioner), filed an

Employment Charge of Discrimination with the Florida Commission

on Human Relations (FCHR), which alleges that his employer,

KeKe ' s Breakfast Café, Inc. (Respondent o r KeKe ' s), violated

section 760.10, Florida Statutes (2013), by discriminating

against him on the basis of national origin. Specifically,

Petitioner alleges that he was the victim of discrimination as a

result of Respondent enforcing a speak - English - only policy in the

workplace. According to Petitioner, on February 12, 2014, he was

forced to resign his employment with Respondent due to

Respondent ' s alleged discriminatory employment practice.

The allegations were investigated, and on September 19,

2014, F CHR issued its Determination: No Cause. A Petition for

Relief was filed by Petitioner on October 20, 2014. On

October 21, 2014, FCHR transmitted the case to the Division of

Administrative Hearings for the assignment of an administrative

law judge to co nduct a formal hearing.

At the hearing, Petitioner testified on his own behalf and

offered the testimony of no other witnesses. Mr. Keith Mahen,

co - owner of KeKe ' s, was the only witness to testify on behalf of

Respondent. Joint Exhibits 1 and 2 were adm itted into evidence.

Petitioner ' s Exhibits 2, 6 and 9, and Respondent ' s Exhibits 2,

and 5 through 7 were also admitted into evidence.

A Transcript of the final hearing was filed with the

Division of Administrative Hearings on February 25, 2015. The

part ies each submitted a Proposed Recommended Order.

FINDING S OF FACT

1. Petitioner is a resident alien and was born in Mexico.

Petitioner ' s native language is Spanish. Petitioner has been in

the United States of America for approximately eight years.

Durin g his time in the United States , Petitioner has learned to

speak and read English but does not have the ability to write in

English. Petitioner communicates with his friends and family in

Spanish and admits that the only time he speaks English is when

he is at his place of employment. Petitioner is bilingual

although he prefers to speak Spanish. During times relevant to

the instant matter, all employees at KeKe ' s spoke English and

some of the employees were bilingual, speaking both Spanish and

English.

2. Keke ' s is a restaurant that serves breakfast and lunch

daily between the hours of 7:00 a.m. and 2:30 p.m. The

restaurant is located in Orlando, Florida, and occupies a five

thousand square foot building. In the kitchen of the restaurant

there is a " c ooks ' line " that contains 24 feet of cooking surface

which includes a flat top griddle, open flames, and fryers. The

cooks ' line also contains a steam well and a bank of between four

to six waffle irons. The waffle irons, when operational, have

surface t emperatures of about 425 degrees. Generally , there are

four cooks assigned to the kitchen at any given time , with one

cook preparing eggs, another preparing lunch items, a floater

cook who is responsible for meats and home fries, and the fourth

cook (expe ditor) that helps to ensure that the meals are properly

prepared and expeditiously delivered to the customers.

3. The kitchen also contains an area where fresh fruit,

such as strawberries, is cut. In explaining the area where fruit

is cut, the following evidence was presented:

Q: Now, you mentioned you were on the cooks '

line, and you were - Î you were cutting fruit?

A: Yes, we were cutting fruit.

The area where Petitioner was cutting fruit on the day in

question is included within the area generally described as the

" cooks ' line. "

4. In the kitchen at KeKe ' s , it is required that all cooks

be able to effectively and efficiently communicate with one

another. According to Keith Mahen,

The cooks must communicate with each other on

an immediate basis al l day. Um, some of the

gentlemen on the schedule only speak, to the

best of my knowledge, one language, and they

wouldn ' t have been able to understand what

would or would not have been communicated if

it would not have been in English.

Keke ' s employees a ct as a cohesive unit wherein the employees and

management, and especially the line cooks, communicate with each

other using a common language on an immediate basis during the

workday. The ability to communicate by using a common language

is critical in m aintaining a safe working environment , and it

also promotes the efficient delivery of food to the restaurant ' s

customers.

5. Sometime in or around November 2013, Petitioner applied

for a job as a line - cook at KeKe ' s. Prior to being hired,

Petitioner was initially interviewed by Mr. Keith Mahen. The

interview was conducted in English. Petitioner was next

interviewed by Mr. Julio Barbados, the restaurant ' s kitchen

manager. According to Petitioner, his interview with

Mr. Barbados was conducted exclusive ly in Spanish. Mr. Mahen was

not present when Petitioner was interviewed by Mr. Barbados. On

November 15, 2013, Petitioner was hired by KeKe ' s to work as a

line - cook with egg preparation being his primary area of

responsibility.

6. Petitioner, upon com mencing his employment at KeKe ' s,

was trained by fellow kitchen employee Mr. Roberto Suriel.

Petitioner and Mr. Suriel would always speak Spanish to one

another during their training sessions. There is no evidence

that any member of management was presen t during times when

Petitioner received instruction from Mr. Suriel or that

Mr. Suriel delivered instruction to Petitioner during times when

the cooks ' line was active and food was being prepared for

consumption by the restaurant ' s customers.

7. Petiti oner, as part of KeKe ' s new employee orientation

process, received an employee handbook that outlined the rules

and regulations of his employment relationship with KeKe ' s.

Petitioner signed a " handbook receipt " wherein he acknowledged

that he received and read the employee handbook. The handbook

receipt also notes that " the Company reserves the right to change

the provisions [of the] handbook at any time " and further that

" [t]he Company reserves the right to add, delete, or change any

portion of the emplo yee handbook with or without notice. "

8. The " handbook receipt " shows that Petitioner started his

employment relationship with KeKe ' s on November 15, 2013. The

handbook receipt contains a signature and date line for both the

employee and the restaurant ' s manager. While the handbook

receipt contains the signature of Petitioner and the restaurant ' s

manager, the handbook receipt does not indicate when the same was

signed by either party. Included with the handbook receipt are

pages 13 and 14 of the employ ee handbook and these respective

pages are date stamped " 11/21/13, " which is six days after

Petitioner ' s initial date of employment.

9. Beginning on page 13 of the employee handbook is a

section labeled " Language. " This section of the handbook

provides as follows:

KeKe ' s welcomes diversity and prides itself

on employing a diverse body of individuals.

However, to maintain an efficient, safe, and

productive environment, we require that all

employees use English as the primary spoken

and written language w hen performing work for

KeKe ' s Breakfast Café. The use of English

ensures that both customers and coworkers

completely understand all communication, at

all times, ensuring efficiency, safety, and

accurate communication.

10. The employee handbook also c ontains a " safety " section

which provides, in part, that " KEKE ' S BREAKFAST CAFÉ is committed

to maintaining a safe workplace for all of [its] employees. " The

safety section also notes " some basic guidelines and safety rules

to always keep in mind. " One s uch basic safety rule states that

employees should " [n]ever try to catch a falling knife. Knives

are easier to replace than fingers. "

11. Petitioner claims that the handbook that he signed for

and received did not contain the " Language " section referenc ed

above. Petitioner did not produce as evidence the handbook that

he received which purportedly omitted the " Language " section from

its contents. According to Mr. Mahen, the restaurant ' s speak -

English - only policy was in effect " many, many years " before

Petitioner was hired. Given Mr. Mahen ' s testimony, along with

the fact that pages 13 and 14 of the handbook are dated less than

a week after Petitioner was hired, coupled with the fact that

Petitioner did not produce a handbook with the alleged missing

pa ges, the most reasonable conclusion is that the handbook signed

for and received by Petitioner contained the " Language " section.

12. On the morning of February 12, 2014, Petitioner was on

the cooks ' line and was cutting strawberries with a paring knife

w hile conversing in Spanish with a co - worker. While this

Spanish - only conversation was occurring, restaurant records

indicate that there were approximately 43 customers present and

the kitchen was actively involved in the process of preparing

food orders. On the day in question, at least one other cook was

known to not speak Spanish, the expeditor Brittney was known to

not speak Spanish, and Brooke Mahen, Petitioner ' s supervisor, was

also known to not speak Spanish.

13. The Spanish - only conversation betw een Petitioner and

his co - worker was overheard by Ms. Brooke Mahen, one of the

restaurant ' s managers. Upon hearing the conversation, Ms. Mahen

approached Petitioner and his co - worker and told them that

English is the only language that is to be spoken in the

workplace. Petitioner took offense to being told that he could

not speak Spanish in the workplace and expressed his discontent

to Ms. Mahen.

14. Ms. Mahen immediately went to her father, Keith Mahen,

and informed him of the situation. Mr. Mahen the n immediately

went to Petitioner and again informed him about the restaurant ' s

speak - English - only policy. When conversing with Mr. Mahen

Petitioner said that he found the speak - English - only policy

" hurtful " and Mr. Mahen, in response to Petitioner ' s conce rns,

said to Petitioner " I ' m sorry you feel that way, but for safety

and efficiency of the restaurant, we want you to speak English

only. "

15. Petitioner returned to work and Mr. Mahen went back to

his office. Approximately 30 minutes later, Petitioner quit his

job at the restaurant in protest of the speak - English - only

policy. Respondent took no disciplinary action against

Petitioner for violating the restaurant ' s speak - English - only

policy.

16. According to Mr. Mahen, KeKe ' s speak - English - only

polic y, as interpreted on February 12, 2014, allowed an employee

to speak a language other than English when the employee was

taking a break from work, and in instances where the employee was

" not on the cooks ' line or not subject to an English only

speaking ma nager or supervisor in [the employee ' s] vicinity "

while at the restaurant. Petitioner ' s act of cutting fruit on

the day in question was within the zone - of - safety covered by

Respondent ' s speak - English - only policy. Mr. Mahen ' s

interpretation of the speak - E nglish - only policy is consistent

with the evidence presented , given that it is undisputed that the

single instance when Petitioner was instructed to only speak in

English was when he was working with a knife on the cooks ' line.

The facts establish that Ke Ke ' s applied the speak - English - only

policy under circumstances where warranted by business necessity.

17. KeKe ' s speak - English - only policy, as applied in the

instant case, furthered the restaurant ' s legitimate business

interest of promoting a safe and ef ficient working environment.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57, and 760.11, Fla. Stat. (2014). 1/

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

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of national

origin.

20. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when co nstruing

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).

21. Petitioner alleges in his Charge of Discrimination that

Respo ndent discriminated against him on the basis of national

origin when it imposed upon him a requirement that he speak only

English while in the workplace.

A. 29 C.F.R. § 1606.7

22. Petitioner contends that Respondent ' s speak - English -

only policy require s employees to speak English at all times and

therefore constitutes, as a matter of law, a violation of 29

C.F.R. § 1606.7 (EEOC guidelines), and by necessary inference,

Title VII, and the Florida Civil Rights Act of 1992. The cited

EEOC g uidelines set fo rth the agency ' s interpretation of national

origin discrimination as it relates to " speak - English - only "

rules.

2 3 . Second, it is well established that the EEOC guidelines

do not possess the force of law. General Electric Co. v.

Gilbert , 429 U.S. 125, 97 S. Ct. 401 (1976). The EEOC guidelines

provide that a speak - English - only policy that is applied at all

times is " presumed " to violate Title VII and will be closely

scrutinized, and when such a rule is applied only at certain

times it will be permitted if " the employer can show " that the

rule is justified by business necessity. Under either scenario,

as one court has observed, " [t]he EEOC guidelines provide that an

employee meets his or her burden of proving a prima facie case in

a disparate impact cause of action merely by proving the

existence of the English - only policy. " Long v. First Union

Corp. , 894 F. Supp. 933, 940 (E.D. V a . 1995) , aff ' d 86 F.3d 1151

(4th Cir. 1996). The court in Long went on to note , however,

that it was not bound by EEOC guideli nes and expressly refused to

adopt that portion of the EEOC guidelines which allows a

plaintiff to establish a prima facie case by merely showing the

existence of an English - only policy. Id. at 940 (citing Garcia

v. Spun Steak , 998 F.2d 1480 (9th Cir. 199 3) ) . " E ven under the

EEOC guidelines, however, the English - only rule may be justified

by business necessity. " Prado v. L. Luria & Son , 975 F. Supp.

1349, 1354 (S.D. Fla. 1997).

2 4 . In the instant case, the evidence does not establish

that Respondent re quired its employees to speak English at all

times. Even if, however, the evidence did support such a

finding, Respondent ' s speak - English - only policy, even under

" close scrutiny, " furthered the restaurant ' s legitimate business

interest of promoting a safe and efficient working environment.

Respondent ' s speak - English - only policy comports with the

requirements of 29 C.F.R. § 1606.7.

B. Disparate impact claim

2 5 . Though not precisely stated, Petitioner asserts a

theory of recovery based on disparate impa ct. In order to

establish a prima facie case of disparate impact , Petitioner must

identify a seemingly neutral practice that has a significant

adverse impact on persons of a protected class. Connecticut v.

Teal , 457 U.S. 440, 102 S. Ct. 2525 (1982).

2 6 . It is well established that " [a]n English - only rule by

an employer does not violate Title VII as applied to bilingual

employees so long as there is a legitimate business purpose for

the rule. " Prado v. L. Luria & Son , 975 F. Supp. 1349, 1354

(S.D. Fla. 1997) (citing Garcia v. Gloor , 618 F.2d 264, 271 (5th

Cir. 1980), cert. den. , 449 U.S. 1113, 101 S. Ct. 923 (1981);

Gonzalez v. The Salvation Army , 1991 U.S. Dist. LEXIS 21692,

aff ' d , 985 F.2d 578 (11th Cir. 1993), cert. den. , 508 U.S. 910,

113 S. Ct. 2342 (1993)). The court in Prado also noted that in

Garcia v. Gloor , the court of appeals " specifically rejected the

argument that an English - only policy has a disparate impact

finding instead that choice of language, like other behaviors, is

a matter of indi vidual preference. " Id. at 1354.

In Long v. First Union Corporation , 894 F. Supp. 933, 941 (E.D.

Va. 1995), aff ' d , 86 F.3d 1151 (4th Cir. 1996), the court held

that " [t]here is nothing in Title VII which protects or provides

that an employee has a right t o speak his or her native tongue

while on the job. "

2 7 . Petitioner is bilingual and admits that he regularly

speaks English while at work. Respondent, regardless of whether

Petitioner established a prima facie case of national origin

discrimination, pro ved that it had a legitimate business purpose

for enforcing its speak - English - only policy against Petitioner on

February 12, 2014. Respondent ' s speak - English - only policy did

not discriminate against Petitioner on the basis of national

origin. 2/

RECOMMENDA TION

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, KeKe ' s

Breakfast Café, Inc., did not commit an unlawful employment

practice a s alleged by Petitioner, Juan Monsalvo, and denying

Petitioner ' s Employment Charge of Discrimination.

DONE AND ENTERED this 20th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative L aw 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 20t h day of March , 2015 .

ENDNOTE S

1/ All statutory references are to 2014 Florida Statutes, unless

otherwise indicated.

2/ Petitioner ' s failure to prove national origin discrimination

is fatal to his claim of constructive discharge. See Smith v.

Mt. Si nai Med. Ctr. , 36 F. Supp. 2d 1341, 1347 (S.D. Fla.

1998)( " A plaintiff claiming constructive discharge must show more

than just a Title VII violation by her employer. " ).

COPIES FURNISHED:

Richard B. Celler, Esquire

Celler Legal, P.A.

7450 Griffin Road , S uite 230

Davie, Florida 33314

(eServed)

Alan Brent Taylor, Esquire

Alan B. Taylor and Associates, P.A.

5728 Major Boulevard , Suite 700

Orlando, Florida 32819

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanad e Way , Room 110

Tallahassee, Florida 32399

Cheyanne Costillo, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.