16-004118 Labrentae B. Claybrone vs. David Costa Enterprises, Inc., D/B/A Mcdonald's Status: Closed Recommended Order on Friday, October 21, 2016.

Summary: Petitioner failed to establish a prima facie case for discrimination by his employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LABRENTAE B. CLAYBRONE ,

Petitioner,

vs. Case No. 16 - 4118

DAVID COSTA ENTERPRISES,

INC., d/b/a McDONALDÓS ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

September 20, 2016, in Destin , Florida, before R. Bruce

McKibben, a duly - designated Administrative Law Judge (ÐALJÑ)

with the Division of Administrative Hearings (ÐDOAHÑ) , pursuant

to authority set forth in section 120.57(1), Florida Statutes.

Unless specifically stated otherwise herein, all references to

the Florida Statutes will be to the 201 6 codification.

APPEARANCES

For Petitioner: Robert L. Thirston , Esquire

Thirston Law Office

Post Office Box 19617

Panama City Beach, Florida 32417

For Respondent: Dixie Daimwood , Esquire

Paula Da v id Brannon, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

Whether Respondent, David Costa Enterprises, Inc. , d/b/a

McDonaldÓs (Ð Costa Enterprises Ñ), discriminated against

Petitioner, Labrentae B. Claybrone , in violation of the Florida

Human Rights Act ; and, if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On or about June 30, 2015, Mr. Claybrone filed an

Employment C harge of Discriminat ion with the Florida Commission

on Human Relations (ÐFCHRÑ). The claim alleged discrimination

against Mr. Claybrone by his employer, Costa Enterprises . FCHR

issued a Determination: No Reasonable Cause , dated June 16,

2016 . Mr. Claybrone then timely filed his Petition for Relief

dated July 19, 2016, and it was received by FCHR on July 20,

2016 . The Petition was forwarded to the DOAH and assigned to

the undersigned ALJ .

When the Petition was filed at DOAH, FCHR noted that

Mr. Claybrone wa s represented by counsel, Robert L. Thirston,

Esquire. Mr. Thirston filed a response to the Initial Order on

August 4, 2016 . Based on Mr. ThirstonÓs response , and receiving

no timely response from Costa Enterprises, a final hearing was

set for August 31, 2016 , one of the dates provided by

Mr. Thirston . On August 18 , 2016, Costa Enterprises filed a

response to the Initial Order and a Joint Motion for

Continuance . A telephonic hearing was held on August 22, 2016,

where in the parties discussed an alternative date for final

hearing. An Amended Notice of Hearing was issued, setting the

final hearing for September 20 , 2016, in Destin, Florida.

On September 14, 2016, Costa Enterprises filed a ÐResponse

to Prehearing Stipu lationÑ [sic], indicating that efforts to

obtain input from Mr. Thirston in order to formulate a

stipulation were unsuccessful. Costa Enterprises submitted its

own unilateral statement of the facts and law still at issue.

There was no unilateral statement of the law an d facts submitted

on behalf of Petitioner. On Monday morning, September 19 , 2016,

Mr. Thirston s ent an email to the undersigned Ós assistant,

attaching a motion for continuance. The basis of the motion was

that Mr. Thirston allegedly had a hearing in Circuit Court in

Bay County on Tuesday , September 2 0 , the date of the final

hearing in this matter. Later on September 19 , 2016,

Mr. Thirston e f iled his motion on the DOAH website. 1/ The motion

did not state an emergency and did not include any evidence as

to the other hearing Mr. Thirston said he was compelled to

attend. Mr. Thirston had made some verbal comments about a

potential conflict during the prior prehearing conference.

How ever, he made no further mention of the conflict until the

eve of final hearing.

T he motion for continuance was denied pursuant to Florida

Administrative Cod e Rule 28 - 106.210, which states: ÐExce p t in

cases of emergency, requests for continuance must be made at

least five days prior to the date noticed for the hearing.Ñ

There was no claim of emergency in the motion. Rather, the

motion for continuance noted three bases: the alleged B ay

County Circuit Court hearing; an assertion that two of his

intended witnesses no longer worked for Costa Enterprises ; and

ack nowledgment that Mr. Thirston was late responding to

discovery requests from Costa Enterprises .

Mr. Thirston did not appear at the final hearing , nor did

he file a motion se eking to withdraw as counsel . Mr. Claybrone

represented himself at final hearing and presented his case in

proper person .

At the final hearing, Mr. Claybrone testified on his own

behalf and did not offer any exhibits into evidence . Costa

Enterprises called four witnesses : Kevin McKone, director of

operations; Ligaya Mumford, general manager; Ken Hislop, shift

manager; and Roza Atanasova, general manager . Costa

Enterprises Ó E xhibits 1 through 4 were admitted into evidence.

The pa rties agreed to order a transcript of the final

hearing. The parties were allowed 10 days after filing of the

transcript at DOAH to submit th eir proposed recommended orders,

by rule . The T ranscript was filed at DOAH on October 4,

2016 . Neither party timely fil ed a proposed recommended order,

i.e., on or before October 14, 2016. 2/

FINDINGS OF FACT

1 . Mr. Claybrone is an African - American male ,

approximately 25 years of age. He resides in Fort Walton Beach,

Florida , with his mother. At all times relevant to this

proceeding, Mr. Claybrone was working at one or another of the

21 McDonaldÓs r estaurants operated by Costa Enterprises.

2 . Mr. Claybrone presents as a somewhat effeminate person,

with braided, colored hair, earrings, polished fingernails, etc.

He admits to being either gay or bi sexual despite being married

to - Î but not living with - Î a woman. In his Petition for Relief

filed at FCHR , Mr. Claybrone refers to humiliation being imposed

on him due to his Ðtransgender and sexual orientation.Ñ

3 . In March 2015, Mr. Claybrone was hired as a shift

worker at the McDonaldÓs restaurant located inside the WalMart

in Destin, Florida (hereinaft er the ÐWalMart McDonaldÓsÑ). He

had been hired by the general manager of that store, Ligaya

Mumford. Mr. Claybrone did not at any time discuss his sexual

orientation with his employer or other store personnel.

4 . On or around April 28, 2015, Mr. Claybr one thought he

heard the general manager, Mrs. Mumford, refer to him as

ÐmaÓam.Ñ He said that Mrs. Mumford also made comments about the

way he walked and talked and that he reminded her of a female.

Mrs. Mumford, whose testimony under oath at final hearing was

entirely credible, denies making any such comments to

Mr. Claybrone. Rathe r, Mrs. Mumford remembers talking to a

young female employee on that day as they stood at the grill in

the restaurant . The young lady was very respectful and always

called Mrs. Mumford Ð maÓam, Ñ so Mrs. Mumford had responded to

the employee in kind , callin g her Ð maÓam Ñ as well. Mrs. Mumford

believes Mr. Claybrone mistakenly believed she was referring t o

him when in fact she was not. As to the other comments

Mr. Claybrone testified about , Mrs. Mumford categorically denied

making them at all.

5 . When Mr. Claybrone went home that night and told his

mother what he thought had happened , his mother insisted he

complain about the comments . Mr. Claybrone says that h is mother

immediately called Roza Atanasova, general manager of the

Wal M art McDonaldÓs and another store known a s the Destin

McDonaldÓs. By virtue of her position as general manager,

Ms. Atanasova was Mrs. MumfordÓs supervisor . Ellie Montero,

shift manager at the Destin McDonaldÓs, later notified

Mrs. Mumford that Mr. Cl aybroneÓs mother had ca lled

Ms. Atanasova with a complaint.

6 . Mrs. Mumford attempted to call Mr. Claybrone and sent

him texts asking Mr. Claybrone to call her. He intentionally

ignored the calls and texts because he did not want to talk to

Mrs. Mumford . W hen Mr. Claybrone came to work for his next

assigned shift , Mrs. Mumford apologized to him for the comment

he (thought he) had heard.

7 . According to Mrs. Mumford, Mr. Claybrone was a good

employee and never gave anyone trouble. He was kind to the

customers and worked ha rd. She had absolutely no problem with

Mr. Claybrone being one of her shift workers. Mrs. Mumford is

one of Costa EnterprisesÓ most dependable, respected , and

admired workers. She has received numerous citations and awards

relating to her work ethics an d skills. She is known to help

employees in need, lending them her car, loaning money, a nd

providing other assistance.

8 . Within a week after the misunderstanding with

Mrs. Mumford, Mr. Claybrone heard that another co - employee, Ken

Hislop, had mention e d to a fellow worker that he (Hislop) was

surprised to hear that M r . Cl aybrone had a child because

Mr. Hislop presumed Mr. Claybrone was gay. Mr. Hislop cannot

fully remember making the comment, but he meant nothing negative

about Mr. Claybrone, it was just an observation. When he was

advised that Mr. Claybrone was offended, Mr. Hislop offered an

apology. He did not feel like the apology w as accepted by

Mr. Claybrone. Mr. Claybrone did not feel like the apology was

sincere .

9 . Mr. Claybrone said that he was uncomfortable working

with Mrs. Mumford and Mr. Hislop after the alleged slurs . At

some point, it was mutually agreed by Mr. Claybrone and Costa

Enterprises that Mr. Claybrone would be transferred to a

different store, the Destin McDonaldÓs. Mr. Claybrone was

transferred to the Destin McDonaldÓs and was, at first, a

dependable worker. Then he began to be tardy and to miss his

shifts , even though the Destin McDonaldÓs was closer to his home

than the WalMart McDonaldÓs had been . After a while,

Mr. ClaybroneÓs supervisor reduced his weekly hours in an effort

to motivate him to do better about his attendance.

Mr. Claybrone took offense to the reduction in hours and, after

clocking in one day, immediately clocked out , le ft the store as

he cursed loudly, and did not return. Mr. Claybrone effectively

abandoned his position.

10 . Meanwhile, Mr. Claybrone filed a complaint with the

Florida Commission on Human Relations, which ultimately led to

the instant action at DOAH. Mr . Claybrone admitted that the

alleged discriminatory events all transpired within a few days,

no longer than a week in duration .

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties and to the subject matter of this

proceeding , pursuant to sections 120.569 an d 120.57(1), Florida

Statutes.

12 . The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. DepÓt of Banking & Fin., Di v. of Sec. & Inv.

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996),

citing Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1 st DCA 1981). According to section 120.57(1)(j ), ÐFindings of

fact shall be based upon a preponderance of th e evidence . . .

except as otherwise provided by statute, and shall be based

exclusively on the evidence of record and on matters officially

recognized.Ñ In this case, Mr. Claybrone has the burden of

proving, by a preponderance of the evidence that he was

discriminated against in his workplace .

13 . The Florida Civil Rights Act of 1992 (the ÐActÑ or

Ð FCRA Ñ) is codified in sections 760.01 through 760.11, Florida

Statutes. The ActÓs general purpose is Ðto secure for all

individuals within the state freedom from discrimination because

of race, color, religion, sex, national origin, age, handicap,

or marital status and thereby to protect their interest in

personal dignity, to make available to the state their full

productive capacities, to secure the state against domestic

strife and unrest, to preserve the public safety, health, and

general welfare, and to promote the interests, rights, and

privileges of individuals within the state.Ñ £ 760.01, Fla.

Stat. When Ða Florida statute [such as the FCRA] is modeled

after a federal law on the same subject, the Florida statute

will take on the same constructions as placed on its federal

prototype.Ñ Brand v. Fl a . Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994). Therefore, the FCRA should be

interpreted, where possible, to conform to Title VII of the

Civil Rights Act of 1964, which contains the principal federal

anti - discrimination laws.

14 . Section 760.10 provides, in relev ant part:

(1) It is unlawful employment practice for

an employer:

(a) To discharge or fail or refuse to hire

any individual, or otherwise to

discriminate against any individual

with respect to compensation, terms,

conditions, or privileges of

employment, because of such

individualÓs race, color, religion,

sex, national origin, age, handicap, or

ma rital status.

15 . Costa Enterprises is an employer pursuant to s ection

760.02(7) . Mr. Claybrone is an employee as defined in 42 U.S.C.

§ 12111(4).

16 . Complainants alleging unlawful discrimination may

prove their case using direct evidence of discriminatory intent.

Direct evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption . Denney v. City of Albany , 247 F.3d 1172,

1182 (11 th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11 th Cir. 1997). But courts have held that Ðonly the most

blatant remarks, whose intent could be nothing other than to

discriminate , Ñ satisfy this d efinition. Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11 th Cir.

1999) (internal quotations omitted), cert . denied , 529 U.S.

1109 (2000).

17 . Mr. Clayb ro ne failed to produce direct evidence of

discrimination on the part of Costa Enterprises. In the absence

of direct evidence, the law permits an inference of

discriminatory intent, if complainants can produce sufficient

circumstantial evidence of discriminatory animus, such as proof

that the charged party treated persons outside of the protected

class (who were otherwise similarly situated) more favorably

than the complainant was treated. Such circumstantial evidence

constitutes a prima facie case.

18 . In McDonnell Douglas Corp oration v. Green , 411 U.S.

792 , 802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial burden of establishing , by a

preponderance of the evidence , a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination en ds the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1 st DCA 1996 ) , affÓd , 679 So. 2d

1183 (Fla. 1996). If, however, the complainant succeeds in

making a prima facie case, then the burden shifts to the accused

employer to articulate a legitimate, non - discriminatory reason

for its complained - of conduct. This intermediate burden of

production, not persuasion, is Ðexceedingly light.Ñ Turnes v.

Amsouth Bank , N.A. , 36 F.3d 1057, 1061 (11 th Cir. 1994). If the

emplo yer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. St. MaryÓs Honor Ct r . v.

Hicks , 509 U.S. 502, 516 - 518 (1993). At all times, the

Ðultimate burden of pe rsuading the trier of fact that the

[charged party] intentionally discriminated againstÑ him remains

with the complainant. Silvera v. Orange Cnty . Sch. Bd. ,

244 F.3d 1253, 1258 (11 th Cir. 2001).

19 . To establish a prima facie case of discrimination in

the present matter, Mr. Claybrone is required to show that he :

Ð(1) is a member of a protected class; (2) was qualified for the

position at issue; (3) was subject to an adverse employment

action; and (4) was replaced by someone outside the protected

class, or, in the case of disparate treatment, shows that other

similarly situated employees were treated more favorably.Ñ

Taylor v. On Tap Unlimited, Inc. , 282 Fed. Appx. 801, 803 (11 th

Cir. 2008).

20 . Mr. Claybrone fails to sati s fy all but one of the

criteria. He was Ðqualified for the position at issue,Ñ as

confirmed by his employer. However, Mr. Claybrone does not

establish that he is a member of a protected class. He did not

prove that any adve rse employment action was taken. He did not

show that other similarly situated employees were treated more

favorably.

21 . In short, Mr. Claybrone did not meet his initial

burden of proof in this case and his complaint must be

dismissed.

RECOMMENDA TION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final o rder be entered finding

that Costa Enterprises , Inc. , d/b/a McDonaldÓs, did not

discriminate against Labre n tae B. Claybrone .

DONE AND ENTERED this 21st day of October, 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October , 2016 .

ENDNOTES

1/ Mr. Thirston asserts that he attempted to e f ile his motion on

Friday, September 23, 2016, but the Ðsystem was down.Ñ It is

true that there were problems with the e f ile system at DOAH on

that date. Even so, the motion would not have been timely

filed.

2/ On October 14, 2016, Mr. Thirston efiled a document at DOAH

purporting to be a M otion for Enlargement of Time. The document

was actually a pleading from a Circuit Court case unrelated to

the instant matter. On October 18, 2016, after receiving a call

from the Clerk at DOAH, Mr. Thirston efiled a legitimate Motion

for Enlargement of Time, seeking until October 28, 2016 , to file

his proposed recommended order (PRO). In his motion,

Mr. Thirston mentioned that Respondent had filed its PRO on

October 11, 2016 , but there is no such document on the DOAH

docket. On October 18, 2016, Respon dent emailed its PRO to the

undersignedÓs assistant, along with a ÐconfirmationÑ page

allegedly showing that it had been filed on October 11 , 2016 .

The DOAH Clerk again determined that there had not been such a

filing at DOAH in this case on that date. A s a result of the

foregoing, neither partyÓs PRO was considered by the

Administrative Law Judge in the preparation of this Recommended

Order.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Robert L. Thirston, Esquire

Thirston Law Office

Post Office Box 19617

Panama City Beach, Florida 32417

(eServed)

Dixie Daimwood, Esquire

Paul David Brannon, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

(eServed)

Cheyanne Costilla, Gen eral Co unsel

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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.