15-004721 Mark Turner vs. Golden Corral Status: Closed Recommended Order on Monday, November 30, 2015.

Summary: The Petitioner failed to prove that the Respondent discriminated against him at its restaurant, or place of public accommodation, because of his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK TURNER,

Petitioner,

vs. Case No. 15 - 4721

GOLDEN CORRAL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final evidentiary hearing was

c onducted in this case on October 26, 2015, in Miami, Florida,

before Robert L. Kilbride, Administrative Law Judge, Division of

Administrative Hearings ( " DOAH " ).

APPEARANCES

For Petitioner: Mark Anthony Turner , p ro s e

2366 Southeast 12th Court , Unit 121

Ho mestead, Florida 33055

For Respondent: Arianne B. Suarez, Esquire

Douberley, McGuinness & Cicero

1000 Sawgrass Corporate Parkway , Suite 590

Sunrise, Florida 33323

STATEMENT OF THE ISSUE S

Whether Golden Corral discriminated against Mark Turner on

the b asis of his race at Respondent ' s restaurant or place of

public accommodation, and, if so, what the relief should be.

PRELIMINARY STATEMENT

On or about February 1, 2015, Petitioner, Mark Turner

( " Turner " ), filed a Public Accommodation Complaint of

Discrimi nation against Respondent, Golden Corral ( " Golden

Corral " ) , with the Florida Commission on Human Relations

( " FCHR " ) .

Turner alleged that in October 2014, Golden Corral

discriminated against him because of his race (African - American),

when it expelled him f rom the Golden Corral restaurant and

permanently banned him from the restaurant.

On July 27, 2015, FCHR issued a Notice of Determination:

No Reasonable Cause, determining there was no reasonable cause to

believe that an unlawful practice had occurred.

FCHR informed Turner of his options for an administrative

hearing or civil action. Turner opted for an administrative

hearing by timely filing his Petition for Relief on August 13,

2015. The petition was forwarded to DOAH and assigned to the

undersigned to c onduct the requested hearing.

After coordination to identify available hearing dates,

Turner ' s case was set for hearing on October 26, 2015.

Shortly thereafter, Turner initiated written discovery,

serving interrogatories and document production requests on

Golden Corral.

Turner subsequently filed a Motion to Continue and Motion to

Compel Discovery, both of which were denied by the undersigned

after considering the response filed by Golden Corral.

The case proceeded to final hearing on October 26, 2015, as

scheduled, without further objection by either party. No

objections or issues regarding the Motion to Continue or Motion

to Compel were raised by either party at the final hearing.

At the hearing, Turner appeared pro se and testified on his

own behalf. H e called two additional witnesses, Jim Feliciano

and David Gronewoller. He offered one exhibit into evidence,

Exhibit 1, which was admitted.

At the conclusion of Turner ' s case, Golden Corral moved to

dismiss the case alleging that Turner had not presente d a prima

facie case. The motion was denied, and Golden Corral proceeded

with its case.

Golden Corral called Jim Feliciano ( " Feliciano " ), general

manager of the Golden Corral in question, and utilized several

exhibits , Exhibits 1 through 5, stipulated to by the parties at

the beginning of the hearing .

The Transcript of the final hearing was filed on

November 13, 2015. Both parties submitted p roposed r ecommended

o rders (PROs).

Due consideration has been given to the PROs filed by Golden

Corral and Turner in preparing this Recommended Order.

FINDING S OF FACT

Based on the evidence presented, the undersigned makes the

following findings of material facts:

1. At the time of the incident , Turner was a 56 - year - old

African - American. He is married and has a six - year - old daughter.

2. He worked for General Motors for 30 years on the

assembly line and also worked as a line coordinator. In 2011, he

retired and purchased a condominium in Homestead, Florida, where

he lives with his wife and daughter. After he retire d, he

purchased and now rents several condominium units in Columbia,

South America.

3. He visited the Golden Corral restaurant approximately

one time each month with his family.

4. The Golden Corral restaurant offers a buffet to its

patrons. However, t here is a " No Sharing " policy posted on a

placard in the lobby. See Resp. ' s Ex. 2. The sign states the

following:

Please, no sharing. In the interest of

keeping our food prices as reasonable as

possible, we ask that you please not share

food from the Go lden Corral buffet. To - go

meals from the buffet are available for

purchase. Ask your server.

5. On an unspecified date in October 2014, a customer

complained to the staff, that another customer (later identified

as Turner) was taking food from the buff et and putting it in

plastic Tupperware containers. The complaining customer was a

female African - American.

6. Based on this information, Feliciano watched Turner

approach the buffet and put items of food in a Tupperware

container. This was also being d one by a female identified as

Turner ' s wife.

7. During the first incident, Feliciano took Turner aside

to a private room, explained what he had observed, and asked him

to leave the property. It was Feliciano ' s testimony that Turner

did not deny taking fo od. He also told him he was expelled from

the restaurant.

8. Feliciano testified that Turner was a frequent guest,

and, so, Feliciano was able to positively identify him as the

person violating the no sharing policy.

9. When Turner and his family left the restaurant,

Feliciano noticed that he was carrying re - usable , grocery - type

bags with him capable of storing Tupperware containers.

10. Several weeks later, Feliciano observed Turner in line

attempting to enter the restaurant. Feliciano approached Tur ner

and reminded him that he had been expelled and instructed him to

leave the premises. This was done without incident.

11. Apparently, there was video surveillance available

which would have captured some or all of the incidences in

question. However, no photographs or video surveillance were

offered into evidence by either party.

12. Feliciano had worked at this restaurant for

approximately ten and one - half years. The company grants fairly

wide discretion to its managers to take action against custo mers

who violate rules. That discretion ranges from calling the

police to expelling patrons under appropriate circumstances.

13. The president and CEO of Golden Corral testified that

the company offered general training to staff members related to

proble m customers. He related that there was " lots of training

books and videos " given to general managers and staff regarding

how to handle problematic customers and patrons. However, there

was no training offered on specific adverse situations.

14. The comp any does offer " discrimination training " to its

staff and general managers during meetings and company

conferences. A company named Speilman 1/ out of Winston Salem,

North Carolina, provided this training.

15. The president spoke with Turner on the tele ph one. He

told Turner he concurred with the general manager ' s decision to

expel him. During the course of this telephone discussion,

Turner did not deny taking food and asked if he could come back

to the restaurant " if he stopped. " (The context of this co mment

was if he stopped violating the no sharing policy.) Upon further

inquiry, the president testified that he was absolutely sure that

Turner told him this.

16. Feliciano testified that Golden Corral serves people of

all races and backgrounds. He stat ed that the " no sharing "

policy was prominently displayed at the restaurant.

17. The customer, who complained about Turner ' s conduct,

said that she watched him fill Tupperware containers with chicken

and ribs. She mentioned that this was very upsetting t o her.

18. Feliciano also checked the plates being removed from

Turner ' s table and saw that there was " residue " of chicken and/or

ribs on the plate, but no empty bones on the plate. (He

concluded that since no bones had been left on the plate, this

conf irmed that the plates had been used to carry food back to the

table and then placed in a container or bag.)

19. Feliciano stated that Golden Corral did not deny

services to Turner because of his race. He gave an example when

two Hispanic women had been e xpelled for the same conduct.

20. The undersigned reviewed Respondent ' s Exhibit 4,

entitled Investigative Memorandum FCHR number 201500480. The

investigation conducted by FCHR appears to be thorough and

comprehensive. All parties were interviewed, affid avits were

collected, and a witness was interviewed.

21. This is a de novo proceeding. Based upon the evidence

presented , there does not appear to be any basis to dispute the

investigative findings and recommendations of the agency, and the

evidence pres ented during the final hearing before the

undersigned was consistent with the information collected by FCHR

during its investigation.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proce eding pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015) . 2/

23. Two Florida Statutes come into play in this case,

sections 509.092 and 760.08, Florida Statutes.

24. A private restaurant " has the right to refuse

accommodations or service to any person who is

objectionable or undesirable to the operator " so long as that

refusal is not based upon " race, creed, color, sex, physical

disability, or national origin. " § 509.092, Fla. Stat.

25. " A person aggrieved by a violation of [section 509 .092]

or a violation of a rule adopted [thereunder] has a right of

action pursuant to s. 760.11. " Id. (Chapter 760, Florida

Statutes, is the Florida Civil Rights Act.)

26. The term " public accommodations " 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. " § 760.02(11)(a), Fla. Stat.

27. The Golden Corral restaurant, which is the subje ct

matter of this hearing, was a place of " public accommodation "

(public restaurant) at all relevant times.

28. Section 760.08 provides as follows:

All persons shall be entitled to the full and

equal enjoyment of the goods, services,

facilities, privilege s, 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, familial status, or religion.

29. Rulings by the feder al courts on cases involving

alleged discrimination at places of public accommodations provide

instructive and useful law, particularly in the absence of any

Florida state cases directly on point. See Brand v. Fla. Power

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

30. Specifically, the substantive civil rights afforded

under chapters 590 and 760 operate parallel to and consistent

with federal anti - discrimination laws since the Florida act is

patterned after Title VII. See Stevens v. Steak n Shake, In c. ,

35 F. Supp. 2d 882, 886 (M.D. Fla. 1998)( " [T]his Court looks to

established federal public accommodation law in order to

determine the meaning of the term ' such refusal may not be based

upon race, creed, [or] color . . . ' in Fla. Stat. § 509.092, and

t o determine the elements of [the plaintiffs ' ] civil rights

claims under the Florida Statute. " ); See also , Schultz v. Bd. of

Trs. of the Univ. of W. Fla. , 2007 U.S. Dist. LEXIS 50878 (N.D.

Fla. 2007); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1

(Fla . 1st DCA 1996); accord , Fla. Dep ' t of Cmty. Aff. v. Bryant ,

586 So. 2d 1205, 1208 (Fla. 1st DCA 1991), and Laroche v.

Denny ' s, Inc. , 62 F. Supp. 2d 1375 (S.D. Fla. 1999)(in case where

restaurant was alleged to have refused service to black

customers, cour t treated plaintiffs ' federal and state law claims

as having identical substantive elements).

31. In Stevens , the district court, citing Morris v. Office

Max, Inc. , 89 F.3d 411, 413 (7th Cir. 1996), held that to prevail

under section 509.092, a plaintiff must establish three distinct

elements: ( 1 ) t hat he is a member of a protected class; ( 2 ) t hat

defendant intended to discriminate against him on that basis; and

( 3 ) t hat defendant ' s racially discriminatory conduct abridged a

right enumerated in the statut e. Id. at 887.

32. For our purposes, these three elements must be proven

in this case for Turner to prevail. The burden of proof is on

Turner, the party asserting a demand for affirmative relief. See

generally Fla. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 778

(Fla. 1st DCA 1981).

33. The Stevens court, and the district court in Schultz ,

supra , followed the familiar McDonnell Douglas burden - shifting

analysis for public accommodation cases.

34. The McDonnell Douglas framework allows the plaintiff to

make out a prima facie case (a case consisting of sufficient

evidence) without having " direct evidence " of racial

discrimination, which is often unavailable ( e. g., direct

statements or documents showing that the company intended to

discriminate against Af rican - Americans). Rather, parties without

" direct evidence " of racial discrimination often rely upon

" circumstantial evidence " to prove their case ( e. g., a collection

of circumstances which, in combination, infer or tend to prove

racial discrimination). When this is done in a discrimination

case, the McDonnell Douglas framework of burden shifting applies

and comes into play. 3 /

35. Turner failed to prove the second and third elements of

the test outlined in Stevens . There was no persuasive or

credible di rect or circumstantial evidence offered to show that

Golden Corral intended to discriminate against Turner on the

basis of his race when they expelled him and barred him from the

premises.

36. Rather , the evidence revealed that they barred Turner

because they determined, or reasonably believed, that he had

violated Golden Corral ' s " No Sharing " policy. See Resp. ' s Ex. 2.

37. There was no credible evidence presented to prove that

the " No Sharing " policy was only applied against African -

Americans. A pract ice that affects all races in the same manner

does not prove a racially discriminatory intent (the second

element under Stevens ). Brown v. Am . Honda Motor Co., Inc. , 939

F.2d 946, 952 (11th Cir. 1991).

38. There was also no proof presented to show that Turner

was treated any differently than similarly - situated, non -

protected customers. In fact, there was proof that Golden Corral

had banned several Hispanic females for a similar violation of

the " No Sharing " policy. See generally Akfhami v. Carnival , 30 5

F. Supp. 2d 1308 (S.D. Fla. 2004) .

39. None of what occurred here was because of Turner ' s race

or color. What occurred may have baffled, upset, or offended

Turner, but that does n o t convert otherwise legitimate business

practices into an illegal, discr iminatory practice.

40. Moreover, even if Turner ' s suggestion that their

barring him was a case of " mistaken identity, " that mistake , and

the resulting consequences, is not sufficient proof of racial

discrimination. A good faith belief that action is wa rranted,

even when based on mistaken facts or identity, does not, without

more, constitute discrimination. See generally Alexander v.

Fulton Cnty . , Ga. , 207 F.3d 1303, 1339 (11th Cir. 2000)( " A

plaintiff must show not merely that the defendant ' s employment

decisions were mistaken but that they were in fact motivated by

race. " ); Wolf v. Buss (Am . ) Inc. , 77 F.3d 914, 919 (7th Cir.

1996)( " Pretext means more than a mistake on the part of the

employer; pretext means a lie, specifically a phony reason for

some ac tion. " ) ; and Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466,

1470 (11th Cir. 1991).

41. Thus, even if Turner had established a prima facie case

of discrimination, which he did not, Golden Corral articulated a

legitimate, non - discriminatory reason for the re fusal to serve,

which the undersigned has found to be credible, legitimate, and

not pretextual.

42. Since Golden Corral offered a legitimate, non -

discriminatory reason for barring Turner from the restaurant,

Turner was obligated under the law to rebut or prove that this

reason was untrue or a pretext for racial discrimination. Turner

failed to do so.

43. Therefore, Turner did not carry his burden of proving

that Golden Corral ' s action in expelling him or permanently

disbarring Turner violated sections 50 9.092 or 760.08.

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 dismissing Turner ' s Petition for

Relief.

DONE AND ENTERED this 30th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2015 .

ENDNOTE S

1/ The spelling of the company is provided as pronounced.

2/ References to Florida Statut es are to the 2015 version, unless

otherwise indicated.

3 / In McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 03

(1973), the Supreme Court of the United States outlined a

burden of proof " scheme " for cases involving allegations of

discrimination unde r Title VII, where the plaintiff relies upon

circumstantial evidence. See also, e.g. , St. Mary ' s Honor Center

v. Hicks , 509 U.S. 502, 506 - 07 (1993).

Under the burden shifting test, the plaintiff has the initial

burden of establishing by a preponderance o f the evidence a prima

facie case of unlawful discrimination. Failure to establish a

prima facie case of discrimination ends the inquiry. See Ratliff

v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996 ), aff ' d ,

679 So. 2d 1183 (1996)(citing Arnold v. Burger Queen

Sys. , 509 So. 2d 958 (Fla. 2d DCA 1987)).

If, however, the plaintiff succeeds in making out a prima facie

case, then the burden shifts to the defendant to articulate a

legitimate, non - discriminatory reason for its complained - of

conduct.

Fina lly, if the defendant carries this burden of rebutting or

explaining the plaintiff ' s prima facie case, then the burden

shifts back to the plaintiff to demonstrate that the proffered

reason was not the true reason but merely a pretext for

discrimination. M cDonnell Douglas , 411 U.S. at 802 - 03; Hicks ,

509 U.S. at 506 - 07.

In Hicks, the Court stressed that even if the trier of fac t were

to reject as incredible the reason put forward by the defendant

in justification for its actions, the burden nevertheless wou ld

remain with the plaintiff to prove the ultimate question whether

the defendant intentionally had discriminated against him.

Hicks , 509 U.S. at 511. " It is not enough, in other words, to

disbelieve the employer; the factfinder must believe the

plaintif f ' s explanation of intentional discrimination. " Id.

at 519.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Mark Anthony Turner

2366 Southeast 12t h Court , Unit 121

Homestead, Florida 33055

(eServed)

Arianne B. Suarez, Esquire

Douberley, McGuinness & Cicero

1000 Sawgrass Corporate Parkway , Suite 590

Sunrise, Florida 33323

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human R elations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.