16-000097 Scarlett D. Evans vs. Momma G's, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 16, 2016.

Summary: Petitioner failed to demonstrate that Respondent discriminated against her by not hiring her for a certain position. However, Petitioner did prove that Respondent retaliated against her for filing an EEOC complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCARLETT D. EVANS ,

Petitioner ,

vs. Case No. 16 - 0097

MOMMA GÓS, INC. ,

Respondent .

/

RECOMMENDED ORDER

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

on March 29, 2016, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petition er: Robert L. Thirston, II, Esquire

Thirston Law Firm

Post Office Box 19617

Panama City Beach, Florida 32417

For Respondent: John Bassett Trawick, Esquire

McConnaughhay , Duffy , Co onrod , Pope , &

Weaver, P.A.

Suite 500

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

Whether Respondent, Momma GÓs, Inc. (ÐMomma GÓsÑ), violated

the Florida Civil Rights Act of 1992, se ctions 760.01 through

760.11 and 509.092, Florida Statutes (2015) , 1/ by discriminating

against Petitioner (ÐScarlett EvansÑ or ÐMs. EvansÑ) or by

retaliatin g against her for participatin g in a protected

activity.

PRELIMINARY STATEMENT

Scarlett Evans filed a complaint with the Florida

Commission on Human Relations (Ð the FCHR Ñ) alleging that

Momma GÓs violated the Florida Civil Rights Act of 1992. The

FCHR conducted an investigation and ultimately determined that

there was no reasonable cause to believe that Momma GÓs

committed an unlawful employment practice.

Ms. Evans filed a Petition for Relief with the FCHR on

January 8, 2016, and the matter was referred to DOAH for a

formal administrative hearing.

The final hearing was commenced as scheduled on Marc h 29,

2016, and Ms. EvansÓ attorney invoked the rule of sequestration.

During the final hearing, Ms. Evans presented the testimony of

three witnesses, and Ms. EvansÓ Exhibits 1 and 2 were accepted

into evidence. Momma GÓs presented the testimony of three

witnesses, and Exhibits 1 through 4 from Momma GÓs were accepted

into evidence.

The proceedings were recorded, and a two - volume Transcript

was filed on April 26, 2016. The parties filed Proposed

Recommended Orders that were carefully considered in the

p reparation of this Recommended Order.

FINDING S OF FACT

1. Momma GÓs is a sandwich - shop franchise consisting of

franchisees and company - owned stores.

2. Ms. Evans is a female who began working at a Momma GÓs

franchise located in Panama City, Florida ( Ðthe restaurantÑ) , in

October of 2013. Ms. Evans started as a cashier, and her good

performance led to her being promoted to shift leader in May of

2014.

3. A few months later, the franchise owners asked

Ms. Evans to become the restaurantÓs general manag er because the

current general manager was doing a poor job.

4. While employed as the re staurantÓs general manager,

Ms. Evans typically worked Mon day through Friday for 35 to

40 hours a week. Ms. Evans occasionally worked weekends in

order to account for inventory, and she asserts that she had no

problem with working weekends.

5 . In approximately December of 2014, the restaurantÓs

three owners notified Momma GÓs corporate he adquarters that the

restaurant was st ruggling. The restaurant was six months b ehind

on its rent, and the landlord was threatening eviction. In

addition, the owners had accumulat ed over $300,000 in bank debt.

6 . Because closings damage a restaurant chainÓs image,

Momma GÓs corporate headquarters negotiated a deal in which the

fra n chisor acquired the restaurant and would operate it as a

company - owned store.

7 . Accordingly, Momma GÓs assumed control of the

restaurant on May 1, 2015. Momma GÓs did not fire any of the

restaurantÓs employees, but it did require all of them to re -

appl y for positions at the restaurant.

8 . Mike Davis is the vice p resident of Operations for

Momma GÓs. At the times relevant to the instant case, he

oversaw 30 restaurants.

9 . Once Momma GÓs corporate headquarters completed the

negotiat ions to acquire th e restaurant, Mr. Davis immediately

drove to Panama City in order to oversee the transition.

1 0 . Mr. Davis contacted another Momma GÓs employee (Sam

Ferminella) and asked him to a ssist with the transition.

Mr. Ferminella was a general manager who had pro ven to be

proficient in turning around troubled stores.

1 1 . After the May 1, 2015, acquisition, Mr. Davis remained

in Panama City for approximately three days to oversee the

transition. Mr. Ferminella was more involved with improving the

restaurantÓs day - to - day operations, and he spent approximately

10 to 11 days in Panama City during the first three weeks after

the acquisition.

1 2 . At some point during the 10 to 11 days following the

acquisition, Ms. Evans talked to Mr. Davis and/or Mr. Ferminella

abou t continuing as the restaurantÓs general manager. It is

unclear what Ms. Evans was told, but there is no dispute that

she was essentially in cha rge of the restaurant after

Mr. Ferminella left Panama City following his initial 10 - to -

11 day visit.

1 3 . Rath er than being a salaried employee, Ms. Evans was

paid by the hour before and after the acquisition.

1 4 . On May 11, 2015, Ms. Evans learned that the

restaurantÓs general manager position was being advertised on -

line. She texted Mr. Ferminella to inquire about the situation,

and he promptly called h er. Ms. Evans alleges that

Mr. Ferminella told her during that conversation that Momma GÓs

cannot have a single mother working as a general manager because

the restaurant needs someone who can work long hours, be

available any day of the week, and respond on a momentÓs notice

if there is a problem at the restaurant.

1 5 . That conversation prompted Ms. Evans to file a

complaint with the Equal Employment Opportunity Commission (Ð the

EEOCÑ) on May 20, 2015.

1 6 . Momma GÓs learned of Ms. EvansÓ complaint on

approximately May 25, 2015. On May 26, 2015, Sandy Gnad (who

was responsible for Human Resources at Momma GÓs) contacted

Ms. Evans via telephone and e - mail. Ms. Gnad wanted to know if

there was something sh e could do to help.

1 7 . Mr. Davis learned of the complaint at some point in

June of 2015.

1 8 . After Momma GÓs learned of her complaint, Sam Moore

began working as the restaurantÓs general manager, and Ms. Evans

claims that her work hours were reduced . According to

Ms. Evans, she typically worked 35 to 40 hours a week. However,

her hours were allegedly reduced to 20 to 30 a week in late May.

In addition, there were occasions wh en she wou ld be released

after two to two and one - half hours of work when she had been

scheduled to work six hours.

19 . Ms. Eva ns was the restaurantÓs highest paid hourly

worker.

2 0 . Ms. Evans alleges that the restaurant was having

trouble keeping up with demand at some point that summer.

According to Ms. Evans, Mr. Davi s dealt with the problem by

increasing Ms. EvansÓ hours and splitting the general manager

duties between Ms. Evans and Mr. Moore. At that point,

Ms. Evans asserts that the only difference between her and

Mr. Moore was that he was a salaried employee , whil e Ms. Evans

was still paid by the hour.

2 1 . Mr. Moore resigned from the restaurant at the end of

June, and Ms. Evans had been acting as a de facto general

manager.

22. Ms. Evans filed a complaint of discrimination with the

FCHR on July 8, 2015 , alleging that she was not hired for the

restaurantÓs general manager position because she is a single

mother .

23. On August 7, 2015, Ms. Evans and a co - worker named

Sierra Kennedy were at the restaurant prior to 10:00 a.m. and

were preparing to open the stor e at 10:30 a.m.

2 4 . Mr. Davis had made an appointment to interview

Stefanie Flaugher at the restaurant for the vacant general

manager position, and Ms. Flaugher arrived at approximately

9 : 45 a . m . on August 7, 2015, for her 10:00 a.m. interview.

However , Mr. Davis had not arrived, and Ms. Flaugher was

standing outside the restaurant waiting for him.

2 5 . Ms. Evans had to make a bank deposit, and she

encountered Ms. Flaugher on her way out of the re staurant.

Ms. Flaugher told Ms. Evans that she was there to interview with

Mr. Davis for the general manager position. Ms. Evans expressed

frustration and told Ms. Flaugher that the general manager

position was her job, and proceeded to the bank.

2 6 . When Ms. Evans returned to the restaurant, Mr. Davis

was in terviewing Ms. Flaugher in a booth.

2 7 . At some point during the interview or soon thereafter,

Mr. Davis approached Ms. Kennedy and said something to the

effect that, ÐSo Scarlett quit.Ñ When Ms. Kennedy reported that

Ms. Evans had not resigned, Mr. Da vis turned back to the booth

where Ms. Flaugher was still sitting and stated, ÐNo, she did

not quit.Ñ

2 8 . According to Ms. Kennedy, Mr. Davis appeared to be

excited when he thought that Ms. Evans had resigned. However,

his excitement reportedly tur ned to disappointment after

Ms. Kennedy corrected him.

2 9 . Mr. Davis remained at the restaurant for approximately

two hours after the interview concluded. During that time, he

worked on his laptop, walked around the store, and did

paperwork. He never seeme d excited or upset. Mr. Davis said

nothing of any significance to Ms. Evans.

30 . On August 11, 2015, Ms. Evans received a message that

Ms. Gnad wanted to speak with her. After she and Ms. Kennedy

finished serving the restaurantÓs lunchtime customers, Ms. Evans

returned Ms. GnadÓs call. Upon reaching Ms. Gnad, Ms. Evans

learned that the call was being recorded and that Mr. Davis was

join ing the call.

3 1 . Upon joining the call, Mr. Davis stated that

Ms. Flaugher had reported to him that Ms. Evans had u sed the Ðf -

wordÑ when they conversed outside the restaurant on August 7,

2015. Mr. Davis had hired Ms. Flaugher to be the restaurantÓs

general manager, and he wanted Ms. Evans to sign a letter

stating that she would respect Ms. FlaugherÓs authority.

In addition, the letter noted that Ms. Evans had Ðrudely

spoke[n] to a manager candidate who was waiting outside for an

interview, addressing her disrespectfully and using the ÒfÓ word

multiple times.Ñ Mr. Davis told Ms. Evans that she could either

sign the letter or resign.

3 2 . Ms. Evans vehemently denied using any profanity during

her conversation with Ms. Flaugher.

3 3 . Prior to this phone conversation, Ms. Evans had not

been given a copy of the letter Mr. Davis wanted her to sign.

When Ms. Evans ref used to sign the letter after hearing a

description of its contents , Mr. Davis fired her.

3 4 . Ms. Kennedy resigned that day.

Testimony Adduced at the Final Hearing

3 5 . Ms. Evans testified that Mr. Ferminella told her in

May of 2015 that Momma GÓs could not have a single mother as a

general manager because the position essentially requires one to

be available at all times.

3 6 . Mr. Ferminella testified that Momma GÓs has hired

single mothers to fill general manager positions , and he denied

ever telling Ms. Evans that she was ineligible for the general

manager position . He testified that Ms. Evans had been hired as

a ÐsupervisorÑ in May of 2015 and that he never told anyone to

reduce Ms. EvansÓ hours.

3 7 . Mr. Ferminella testified that the highest paid hourly

worker in a restaurant is typically released early on days when

business is slow.

3 8 . Mr. Davis testified that he had agreed to hire

Ms. Evans as an hourly supervisor. Her responsibilities

included management of the restaurant Ó s daily operations,

managing other employees , and purchasing.

3 9 . Mr. Davis denied telling anyone to reduce Ms. EvansÓ

hours. He also testified that the restaurant industry has a

practice of releasing the highest paid hourly worker early when

business is slow on a partic ular day. That helps keep costs

down.

40 . Mr. Davis testified that Momma GÓs has hired single

mothers to fill general manager positions in the past.

4 1 . Mr. Davis testified that Ms. Flaugher told him during

her interview about her conversation with M s. Evans. According

to Mr. Davis, Ms. Flaugher told him that Ms. Evans had used the

Ðf - wordÑ during that conversation.

4 2 . Mr. Davis testified that use of the Ðf - wordÑ by a

Momma GÓs employee results in immediate termination.

Nevertheless, Mr. Davis did not take immediate action. Instead,

he testified that he had to Ðlisten and investigate and take

time, and then report to my direct report 2/ the conversation.

And, you know, thatÓs the way things work. Things were very Î

move very slowly in this busine ss, making decisions.Ñ

4 3 . Mr. Davis also testified that he hired Ms. Flaugher to

be the general manager of the restaurant in Panama City.

According to Mr. Davis, Ms. Flaugher accepted the offer and

reported for training at a Momma GÓs restaurant in Aubu rn,

Alabama. Momma GÓs even reserved a hotel room for her while she

was training in Auburn. However, Ms. Flaugher supposedly left

the week - long training after a few days without giving notice of

any kind to Mr. Davis or anyone else associated with Momma GÓs.

4 4 . During the final hearing, Mr. Davis attributed

Ms. FlaugherÓs sudden and unexplained disappearance to her being

ÐtraumatizedÑ by her conversation with Ms. Evans on August 7,

2015.

4 5 . As noted above, Ms. Gnad performed human relations

work for Momma GÓs, and she testified that Mr. Davis Ðhas

complete authority to hire or fi re whoever he wantsÑ at a

Momma GÓs owned store without needing anyone elseÓs approval.

However, her statement only applied to certain Momma GÓs stores,

and it is unclear wh ether Mr. Davis had such authority at the

Panama City restaurant.

Ultimate Findings of Fact

4 6 . Ms. Evans failed to establish that Momma GÓs

discriminated against her when she was not hired for the general

managerÓs position .

4 7 . Ms. Evans also fail ed to prove that Momma GÓs

retaliated against her by reducing her hours during the s ummer

of 2015.

4 8 . However, Ms. Evans did prove that Momma GÓs effort to

discipline her , and ultimately terminate her, based on the

conversation with Ms. Flaugher , was ret aliation for filing

complaint s with the EEOC and the FCHR .

4 9 . The testimony of Ms. Evans and Ms. Kennedy was far

more credible than Mr. DavisÓs. In particular, the undersigned

credits Ms. KennedyÓs testimony that Mr. Davis approached her

and excitedly said something to the effect that, ÐSo Scarlett

quit.Ñ After Ms. Kennedy corrected him , Mr. Davis appeared to

be disappointed, turned back to the booth where Ms. Flaugher was

still sitting, and stated, ÐNo, she did not quit.Ñ That

testimony indicates M r. Davis was hoping that Ms. EvansÓ

employment at the re staurant would come to an end.

50 . During his testimony, Mr. Davis was adamant that a

Momma GÓs employee would be immediately terminated for using

profanity. However, when he supposedly learned from

Ms. Flaugher on August 7, 2015, that Ms. Evans had used the

Ðf - word , Ñ he took no action whatsoever despite being at the

restaurant with Ms. Evans and Ms. Kennedy for approximately two

hours after the interview had concluded. His lack of prompt

ac tion be lies Mr. DavisÓ s assertion that he needed to conduct an

investigation . Any such investigation would have included a

prompt discussion with the accused (i.e., Ms. Evans).

5 1 . In addition, Mr. Davis simply accepted a statement

made by a complete strange r without conferring with an employee

who was regularly in charge of the restaurant.

5 2 . In short , there was no true investigation and no

intent to conduct one.

5 3 . The undersigned also has a difficult time reconciling

Mr. DavisÓs assertion that Ms. Fl augher was ÐtraumatizedÑ by her

encounter with Ms. Evans when Ms. Flaugher: (a) agreed to be

the general manager at the restaurant; (b) traveled to Auburn,

Alabama , for one week of training; and (c) attended a few days

of that training prior to leaving wi th no explanation.

5 4 . If Ms. Flaugher was so traumatized, it seems very

unlikely that she would have accepted Mr. DavisÓs job offer. It

is even more unlikely that one so traumatized would travel from

her home for a week - long training session and sudde nly realize

after a few days of training that she could not accept the

general manager position.

5 5 . By attributing Ms. FlaugherÓs unexplained

disappearance to being traumatiz ed by her conversation with

Ms. Evans, Mr. Davis demonstrates a pretextual basi s for his

desire to have Ms. EvansÓ employment at the restaurant end.

5 6 . Finally, Mr. DavisÓ s credibility was also undermined

by his demeanor on the witness stand. He appeared to be very

nervous or uncomfortable when cross - examined by Ms. EvansÓ

atto rney, and he appeared even more nervous or uncomfortable

when the undersigned questioned him about certain aspects of his

testimony.

5 7 . In sum, Mr. DavisÓ s failure to obtain Ms. EvansÓ

version of what happened outside the restaurant on August 7,

2015, demonstrates that the eff ort to discipline her on

August 11, 2015, was a pretext for retaliating against her for

filing complaint s with the EEOC and the FCHR . In other words,

Mr. Davis had no interest in conducting an actual investigation

and giving Ms. E vans an opportunity to rebut Ms. FlaugherÓs

assertion. Rather than being motivated by a desire to ascertain

what actually happened outside the restaurant on August 7, 2015,

Mr. Davis was motivated by a desire to take some sort of adverse

action against Ms . Evans.

5 8 . There is no other reasonable conclusion because all of

the evidence indicates that Ms. Evans was a good employee.

Mr. Ferminella testified that Ms. Evans would have been

considered for the general manager position if she had been

willing t o work the required hours and be a salaried employee.

Also, even after Momma GÓs acquired the restaurant, Ms. Evans

continued in a leadership role , even though she was never

officially designated as the restaurantÓs general manager. The

evidence and test imony presented at the final hearing

demonstrates that there was a ca u sal connection between the

filing of Ms. EvansÓ complaint s and the adverse employment

action at issue.

CONCLUSIONS OF LAW

5 9 . DOAH has jurisdiction over the parties and the subject

matt er of this proceeding pursuant to sections 120.569 and

120.57, Florida Statutes, and Florida Administrative Code Rule

60Y - 4.016(1).

60 . The State of Florida, under the legislative schem e

contained in sections 760.01 through 760.11 and 509.092 , known

as t he Florida Civil Rights Act of 1992 (Ðthe ActÑ),

incorporates and adopts the legal principles and precedents

established in the federal anti - discrimination laws specifically

set forth under Title VII of the Civil Rights Act of 1964. 42

U.S.C. § 2000e, et seq .

6 1 . The Florida law prohibiting unlawful employment

practices is found in section 760.10. This section prohibits

discrimination Ðagainst any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such ind ividualÓs race, color, religion, sex,

national origin, age, h andicap, or marital status.Ñ

§ 760.10(1)(a), Fla. Stat.

6 2 . Pursuant to section 760.10(7), it is an unlawful

employment practice for an employer to discriminate against a

person because that pe rson has , Ðopposed any practice which is

an unlawful employment practiceÑ or because that person Ðhas

made a charge . . . under this subsection.Ñ

6 3 . Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 196 4, as

amended, federal case law dealing with Title VII is applicable.

See e.g. , Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1 st DCA 1991); Valenzuela v. GlobeGround N. Am ., LLC ,

18 So. 3d 17, 21 - 22 (Fla. 3d DCA 2009).

6 4 . As develop ed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inf erence or presumption. Usually,

however, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F. 3d 1555,

1562 (11 th Cir. 1997).

6 5 . Under the shifting burden pattern developed in

McDonnell Doudglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a pr eponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [P etitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. DepÓt of Hous. and Urban Dev. v. Blackwell , 908 F. 2d 864,

870 (11 th Cir. 1990)(housing discrimination claim); accord ,

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)(ÐUnder the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discriminat ion.Ñ).

6 6 . Ms. Evans did not present statistical or direct

evidence of discrimination. Therefore, in order to prevail on

her claim against Momma GÓs, Ms. Evans must first establish a

prima facie case by a preponderance of the evidence. Id. ;

£ 120.57(1)(j), Fla. Stat. (providing that Ð[f]indings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure proceedings or except as otherwise provided

by statute and shall be based exclusively on the evidence of

record and on matters officially recognized.Ñ).

6 7 . ÐDemonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination.Ñ Holifield , 115 F. 3d at

1562 ; cf . Gross v. Lyons , 76 3 So. 2d 276, 280 n.1

(Fla. 2000)(noting that Ð[a] preponderance of the evidence is

Òthe greater weight of the evidence,Ó [citation omitted] or

evidence that Òmore likely than notÓ tends to prove a certain

proposition.Ñ).

6 8 . In the instant case, the FCH R concluded that Ms. Evans

did not state a prima facie case of marital status

discriminaton . As stated in t he FCHRÓs d etermination of Ð no

reasonable cause, Ñ Ms. EvansÓ allegation that Momma GÓs refused

to hire her for the general manager position because she is a

Ðsingle motherÑ does not Ðindicate that [Ms. EvansÓ] status as

an unmarried person was the reason for the adverse action. It

appears [Momma GÓs] took issue with [Ms. EvansÓ] status as a

parent and a perceived lack of availability to work a flexib le

schedule arising from her parental status.Ñ See generally

Donato v. AT&T , 767 So. 2d 1146 , 1154 (Fla. 2000) ( stating that

under the plain meaning of section 760.10 Ðin this case,

Òmarital statusÓ discrimination arises only when one either is

terminated or not hired on the sole basis of that personÓs

status with respect to marriage, which in this case means

married, single, divorced, widowed, or separated.Ñ).

69. Nevertheless, e ven if Ms. Eva ns had s tate d a prima

facie case of discrimination, Momma GÓs was able to articulate a

legitimate, nondiscriminatory reason for its action .

Specifically, Momma GÓs asserted that Ms. Evans was un willing to

fulfill the job requirements by being available at all hours and

working weekends .

70. Thus, Ms. Evans w as unable to prove by a preponderance

of the evidence that Momma GÓs stated reason for not hiring her

for the general manager position was a pretext.

71 . Ms. EvansÓs Complaint also alleges retaliation.

72 . In order to establish a prima facie case for

retaliation, a petitioner must show that: (1) she was engaged

in a statutorily - protected expression or conduct; (2) she

suffered an adverse employment action; and (3) there is some

casual relationship between the two events. Holifield , 115 F.

3d at 1566 .

7 3 . If a petitioner fails to present a prima facie case

for retaliation, the inquiry ends and the case should be

dismissed. Ratliff v. State , 666 So. 2d 1008, 1013 n.6 (Fla.

1 st DCA 1996).

7 4 . However, if a petitioner is able to establish a prima

fa cie case of retaliation, then the employer should come forward

with a legitimate, non - retaliatory reason for its materially

adverse action. Olmsted v. Taco Bell Corp. , 141 F. 3d 1457,

1460 (11 th Cir. 1998).

7 5 . If the employer is able to present a leg itimate, non -

retaliatory reason for its materially adverse action, then a

petitioner Ðbears the ultimate burden of proving by a

preponderance of the evidence that the reason provided by the

employer is a pretext for prohibited, retaliatory conduct.Ñ Id.

In order to satisfy that burden, a petitioner Ðmust demonstrate

such weaknesses, implau s ibilities, inconsistencies,

incoherencies, or contradictions in the employerÓs prof f ered

legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence.Ñ Combs v. Plantation

Patterns, Meadowcraft, Inc. , 106 F. 3d 1519, 1528 (1 1th Cir.

1997).

7 6 . With regard to the instant case, Ms. Evans has proven

by a preponderance of the evidence that the adverse employment

action was a pretext for filing her complaint s with the EEOC and

the FCHR . Given Mr. DavisÓ s stated need to conduct an

investigation, it is very strange that he would not confer with

Ms. Evans prior to reaching a conclusion. Th at is underscored

by the fact that Momma GÓs emp loyed Ms. Evans as a supervisor

and trusted her to functi o n as a de facto general manager at the

time of the adverse employment a ction. Nevertheless, Mr. Davis

immediately accepted Ms. FlaugherÓs statement and made a snap

judgment without giving Ms. Evans an opportunity to tell her

side.

7 7 . Moreover, it is clear t hat Mr. Davis wanted to see

Ms. EvansÓ employment at the restaurant come to an end. That is

evident from Ms. KennedyÓs testimony and from the fact that

Mr. Davis implausibly attributed Ms. F laugherÓs unexplained

departure to being traumatized by her encounter with Ms. Evans.

7 8 . Thus, the preponderance of the evidence supports a

conclusion that Ms. EvansÓ failure to sign the August 11, 2015,

letter (which contained a statement that she vigo rously

disputed) was a pretext for Momma GÓs retaliatory action towards

the EEOC and FCHR filings.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a f inal order awarding Scarlett Evans back pay,

a reasonable attorneyÓs fee , and any other relief she is

entitled to under section 760.11, Florida Statutes.

DONE AND ENTERED this 26th day of May, 2016 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 26th day of May , 2016 .

ENDNOTE S

1/ All statutory references will be to the 2015 version of the

Florida Statutes unless indicated otherwise.

2/ Momma GÓs Exhibit 4 indicates that Mr. Davis uses th e term

Ðdirect reportÑ to mean a supervisor or someone higher in the

chain of command.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

John Basset t Trawick, Esquire

McConnaughhay, Duffy, Coonrod, Pope, &

Weaver, P.A.

Suite 500

Pensacola, Florida 32502

(eServed)

Robert L. Thirston, II, Esquire

Thirston Law Firm

Post Office Box 19617

Panama City Beach, Florida 32417

(eServed)

Cheyanne Costilla, G eneral Counsel

Florida Commission on Human Relations

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 thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.