16-006982 Jennifer M. Foster-Garvey vs. Mcdonald's Bam-B Enterprises, D/B/A Mcdonald's Status: Closed Recommended Order on Thursday, May 11, 2017.

Summary: Petitioner failed to prove she was subjected to discrimination based on her race. Instead, McDonald's reasonably applied its no-loitering policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER M. FOSTER - GARVEY,

Petitioner,

vs. Case No. 16 - 6982

MCDONALD'S BAM - B ENTERPRISES,

d/b/a MCDONALD'S,

Respondent.

_______________________________/

RECOMMENDED ORDER

An evi dentiary hearing was conducted on February 17, 2017,

by video teleconference with sites in Orlando and Tallahassee,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gr egory John Millan

Qualified Representative

9 Adler Place

Brooklyn, New York 11208

For Respondent: Paul D avid Bran n on, Esquire

Dixie Daimwood, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner on the basis of race, national origin, or

disability at RespondentÓs p lace of public accommodation.

PRELIMINARY STATEMENT

On May 10, 2016, Petitioner Jennifer M. Foster - Garvey

(Petitioner or Ms. Foster - Garvey) filed with the Florida

Commission on Human Relations (FCHR) a Public Accommodation

Complaint of Discrimination again st Respondent McDonaldÓs Bam - B

Enterprises , d/b/a McDonaldÓs (Respondent or McDonaldÓs),

alleging that on December 28, 2015, Respondent discriminated

against her on the basis of race, color, sex, disability, and

national origin.

FCHR conducted an investiga tion, after which it issued its

determination of no reasonable cause on November 4, 2016, finding

that Petitioner failed to establish a prima facie case of

discrimination and that there was no reasonable cause to believe

Respondent engaged in discriminatio n as charged.

Petitioner timely filed a Petition for Relief, requesting an

administrative hearing to contest FCHRÓs determination. FCHR

referred the matter to DOAH for assignment of an Administrative

Law Judge to conduct the requested hearing.

The final h earing was scheduled with input from the parties.

Petitioner sought to have Gregory John Millan accepted as her

qualified representative, but no affidavit was submitted by

Mr. Millan attesting to his qualifications. An Order was issued

requiring an affi davit from Mr. Millan setting forth his

qualifications. Thereafter, Mr. Millan submitted an affidavit,

which was deemed acceptable and an Order was issued accepting

Mr. Millan as PetitionerÓs qualified representative.

Prior to the hearing, the parties fi led a Joint Pre - hearing

Stipulation in which they framed the nature of the controversy

(narrowed to whether Respondent discriminated against Petitioner

on the basis of race/national origin and disability), stipulated

to a few facts, and identified their pr oposed exhibits and

witnesses. 1/ To the extent the partiesÓ stipulations are

relevant, they are incorporated in the findings below.

At the final hearing, Petitioner testified on her own behalf

and also presented the testimony of Eric Vidler, Adam Allegro,

Shahanna Owensby, and Robert Millan. Petitioner did not offer

any exhibits into evidence. Respondent presented additional

testimony by Eric Vidler in its case. RespondentÓs Exhibits 1

and 2 were admitted in evidence, without objection.

At the conclu sion of the hearing, the deadline for the

parties to file proposed recommended orders (PROs) was discussed.

The parties were informed that the standard deadline provided by

rule is 10 days after the transcript is filed at DOAH.

Petitioner requested addit ional time, and it was agreed that the

PRO deadline would be 20 days after the filing of the transcript.

The Transcript was filed on March 16, 2017. PetitionerÓs

unopposed motion for an extension of the PRO deadline was

granted. Both parties filed PROs b y the extended deadline of

April 17, 2017, and their filings have been given due

consideration in the preparation of this Recommended Order.

FINDING S OF FACT

1. Respondent is a McDonaldÓs franchisee operating six

McDonaldÓs restaurants in the Orlando ar ea. At issue in this

case is the restaurant referred to as the ÐLockhartÑ store.

2. The Lockhart McDonaldÓs is located on Orange Blossom

Trail in Orlando, in a high - crime, low - income area. This

McDonaldÓs has a history of problems with persons usin g the

restaurant for purposes other than purchasing food and drink

there to consume onsite. There has been a wide range of Ðother

purposesÑ in the Lockhart McDonaldÓs history: sitting at the

dining tables without ordering any food or drink; panhandling

( asking customers if they have a spare dollar); bringing in

drinks purchased elsewhere, topped off with refills stolen from

the McDonaldÓs drink station; soliciting restaurant customers for

prostitution; and using the bathrooms to ingest or inject illegal

d rugs, leaving behind used hypodermic needles and other

paraphernalia. On two separate occasions, people overdosed on

heroin in the bathrooms.

3. To combat these problems, which hurt business,

Mr. Vidler enlisted the help of his brother, an Orange County

Deputy Sheriff, who conducted drug and prostitution stings to

help clean up the restaurant . In addition, the Lockhart

McDonaldÓs adopted a no - loitering policy, a no - solicitation

policy, and a policy requiring that only food and drink purchased

the re may be consumed there. Notices of these policies are

prominently displayed on signs at the restaurant.

4. RespondentÓs witnesses testified, credibly and

consistently, that these policies are enforced uniformly and

strictly, with the goal being to av oid the problems they have had

with persons improperly using the restaurantÓs facilities. As

part of the enforcement procedure, if someone is observed seated

at a table without any apparent McDonaldÓs food or drink items,

after a few minutes a manager or other staff member will approach

that person and politely inquire whether the person intends to

make a purchase.

5. Petitioner is a black woman who has been a customer at

the Lockhart McDonaldÓs. She and her boyfriend, who is not

black, 2/ have gone the re on occasion, made purchases, and enjoyed

their meals, without incident.

6. On the day in question, December 28, 2015, Petitioner

and her boyfriend went to the Lockhart McDonaldÓs for breakfast.

The restaurant was not very busy or crowded when they arr ived,

with perhaps one other customer in line and another customer

seated at a table in the separate dining area. Petitioner went

to the dining area, while her boyfriend went to the counter to

place their order.

7. The restaurant is fairly large, with ph ysical and visual

separation of the area where customers wait in line to place

orders, pick up food, and get drinks at the drink station from

the area where customers can go to sit at tables to consume their

purchases. Behind the ordering counter on the e mployee side,

there is a door used by employees to enter the dining area.

Through a small window at the top of the door, a customer waiting

i n line at the counter might be able to glimpse a small portion

of the dining area, but otherwise would not be able to see or

hear what is going on in the dining area.

8. Petitioner took a seat at a table by an outside window.

She propped both of her feet up on the Corian window ledge and

sat there gazing out the window.

9. Eric Vidler, the operations manager of Res pondentÓs six

restaurants, was in the Lockhart McDonaldÓs that morning. After

Petitioner had taken her place by the window, Mr. Vidler and the

Lockhart restaurant manager, Adam Allegroe, entered the dining

area together to conduct a cleanliness walk - throu gh. They saw

Petitioner, taking note of her unusual positioning, with feet

propped up on the windowsill, 3/ staring out the window. They also

noted that there was no sign of any McDonaldÓs food or drink

purchases on the table or in her hands.

10. After a few minutes, consistent with the restaurantÓs

policies and procedures, Mr. Vidler approached Petitioner and

politely inquired whether she intended to make a purchase. She

did not answer him. 4/

11. Mr. Vidler and Mr. Allegroe testified that usually,

wh en they make such an inquiry, the person will respond, but

sometimes they do not respond. Since their goal is not to make a

scene, offend, or embarrass anyone, under these circumstances

they will usually walk away for a short period of time. If the

perso n had no legitimate business there, then the person often

will disappear at that point.

12. Mr. Vidler and Mr. Allegroe retreated to the menÓs and

womenÓs bathrooms, where they spent three to five minutes

conducting their cleanliness inspection.

13. When Mr. Vidler and Mr. Allegroe returned to the dining

area, Petitioner was still seated, positioned the same way, with

her feet still propped up on the windowsill. She was still

staring out the window, and still had no McDonaldÓs purchases on

the table or in her hands.

14. Mr. Vidler went back up to Petitioner, and following up

on his prior statement to her, this time he told her, ÐMaÓam, if

you are not going to be making a purchase today, then you are

loitering and I need to ask you to leave.Ñ Mr. Vi dler testified

credibly that this is how he always handles the second approach

when the person does not answer his first inquiry. The message,

though direct, was delivered in a calm tone. Mr. Vidler did not

yell at Petitioner. He did not threaten to cal l the police or

have her arrested.

15. This time, Petitioner responded. She got up, flung a

chair in Mr. VidlerÓs direction with sufficient force so that the

chair traveled some distance with all four chair legs four to six

inches off the ground, until it fell against and partially on a

half - wall that set off that portion of the dining area. 5/

16. Petitioner also responded verbally, using an elevated

voice to express her anger. Mr. Vidler said that she cursed,

using a four - letter word. Although more than one year later he

did not recall exactly which curse word or words she uttered, he

did recall that her words were not nice. Mr. Allegroe

corroborated Mr. VidlerÓs recollection, testifying that

Petitioner stood up, ÐslungÑ the chair in their directio n, and

Ðstarted speaking profanity.Ñ (Tr. 83). She then left the

restaurant.

17. The testimony of Mr. Vidler and Mr. Allegroe describing

their two encounters with Petitioner was corroborated by Shahanna

Owensby, a guest services department manager for the Lockhart

McDonaldÓs. Ms. Owensby was seated at a table in the dining

area, working on pricing and tagging merchandise, when she

noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe

conducting their cleanliness walk - through. She observed

Mr. VidlerÓs initial approach to Petitioner. She heard

Mr. Vidler ask Petitioner if she was going to be making a

purchase, and confirmed that Petitioner did not respond. She saw

Mr. Vidler and Mr. Allegroe keep walking after that, back in the

direction of t he bathrooms. She observed Mr. Vidler approach

Petitioner a second time, estimated at four to eight minutes

later. She heard him tell Petitioner that if she was not making

a purchase, he needed to ask her to leave. She saw Petitioner

stand up, pick up a chair, and fling, throw, or toss it: ÐIt was

up in the air and it was off the ground, by her hand.Ñ (Tr. 98).

18. By the time of PetitionerÓs stormy exit from the

restaurant, a family -- a woman with some younger children -- had

entered the dining area a nd was seated near Ms. Owensby. After

Petitioner left, Ms. Owensby apologized to the family, who had

witnessed the scene and had been exposed to the profanity used by

Petitioner within their hearing range.

19. After Petitioner left the restaurant, her b oyfriend

walked into the dining area with the food he had purchased. The

boyfriend described what happened next:

A. Jennifer, my wife, was not sitting at the

table. I thought she was at the -- in the

bathroom. I put my tray on the opposite side

of the ta ble. I was sitting to the left, I

guess, or the right. I was sitting on the

other side. And thatÓs when I saw Mr. Vidler

with a surprised face, you know, like wow --

Q . [Mr. Millan]. Uh - huh.

A. -- what happened here. So he approached

me and he said that he didnÓt know -- that he

didnÓt know. And I asked him that he didnÓt

know what. He said that he didnÓt know that

she was my wife, that she was there with me.

(Tr. 108).

20. At that point, Petitioner (whom Robert Millan clarified

is his girlfriend , not his wife) knocked on the restaurant

window, signaling for him to come outside. He went out to her

and asked what happened. She told him that that person

[Mr. Vidler] offended her. When asked how he offended her,

Robert Milan said that Petitioner r esponded as follows:

She said he told her that what was she doing

there, if she was going to buy food or if she

was just going to sit there. And those were

the same words that he told me that he told

her. [6/] And then when I came back inside the

store, I went and I asked him, you know, to

explain to me what was going on. And he said

that. You know, that -- he said that he didnÓt

know that she was there with me. . . . And

he apologized to me. He asked me if he

-- if he could go apologize to my wife,

Jenn ifer. And I really told him that I think

that was beyond apology because she was like,

you know, angry. So he said, well here, I

give you my card and you can call the office

and see what, you know, we can do about it.

(Tr. 109 - 110).

21. For some unex plained reason (perhaps a mistake filling

the order or perhaps a request for customized food), PetitionerÓs

boyfriend waited ten minutes at the ordering counter, where he

was not able to see or hear the encounters in the separate dining

area. He was not e ven aware that Petitioner had stormed out in

anger, although he confirmed that she was, indeed, angry when he

went outside.

22. Robert Millan did call RespondentÓs office, as

suggested by Mr. Vidler, and spoke with the owner of the

franchise. The owner also offered to apologize to Petitioner,

but Robert Millan did not think she wanted to speak to anyone.

The owner then offered a $50 gift card. The boyfriend said that

he would ask Petitioner, but she refused the gesture.

23. No evidence was presented of any racial statements made

directly or indirectly to Petitioner, or of any racial overtones

to any of the statements made directly or indirectly to

Petitioner.

24. The circumstantial evidence presented does not support

an inference that Respondent int entionally discriminated against

Petitioner based on her race.

25. Instead, all of the circumstantial evidence supports an

inference that Respondent did not discriminate against Petitioner

on the basis of her race.

26. Respondent has a no - discriminatio n, no - harassment

policy that is enforced as to its employees, customers and

potential customers.

27. The Lockhart McDonaldÓs has a very diverse staff. A

comparison of the number of restaurant employees who are members

of the classes of white, black, or Hispanic, the largest category

represented by the restaurantÓs employees is black; the next -

largest category is Hispanic; white employees are in the

minority. As to gender, female employees outnumber male

employees. Manager positions are spread among whi te and black

males, and white, black, and Hispanic females. The operations

manager in charge of RespondentÓs six restaurants, Mr. Vidler, is

a white male as is the restaurantÓs manager, Mr. Allegroe. The

other employee testifying at hearing, Ms. Owensby, is the

restaurantÓs guest services manager and she is a black female.

The diversity of the restaurantÓs staff is circumstantial

evidence, though not particularly weighty evidence, suggesting a

general absence of intent to discriminate on the basis of rac e. 7/

28. More compelling circumstantial evidence was provided by

Mr. Vidler, who is the individual accused of discriminating

against Petitioner because she is black. Mr. Vidler testified

with great sincerity that PetitionerÓs accusation is not only

unfo unded, but it hits a particular sore spot with him. Although

he is a white male, his daughter is half - black. He has

experienced the pain of discrimination based on race, with unkind

questions, or worse, directed to him or to his daughter, because

their r aces do not match. This personal fact shared by

Mr. Vidler is compelling circumstantial evidence giving rise to a

inference that he would not intentionally discriminate against

Petitioner based on her race.

29. The evidence strongly supports a finding, and it is so

found, that Mr. VidlerÓs December 28, 2015, encounters with

Petitioner were the reasonable implementation of RespondentÓs

reasonable policies for its Lockhart restaurant to ensure that

persons using the restaurantÓs facilities are there for th e

purpose of purchasing and consuming food and drink. The

credible, consistent testimony of Mr. Vidler and RespondentÓs

other employees who testified is that the no - loitering policy is

applied uniformly to all persons, regardless of race,

nationality, gen der, disability, or any other classification, who

are not apparently customers in that they have no McDonaldÓs food

or drink purchases. These persons are asked whether they intend

to make a purchase, and if they do not respond in some fashion

that they ar e indeed there to purchase food and/or drink, they

are told that if they are not there to make a purchase, they are

loitering and will have to be asked to leave. 8/

30. Petitioner has only herself to blame for not making

clear to Mr. Vidler that she wa s the re with her boyfriend, who

was i n line at the counter ordering their breakfast. That would

have ended the matter. That Mr. Vidler only took the action he

did because he did not know Petitioner was there with her

1 3

boyfriend was perhaps most convincing ly established by Robert

MillanÓs testimony describing the utter surprise on Mr. VidlerÓs

face when he realized that Petitioner had, in fact, been waiting

for someone who had been purchasing food.

31. The undersigned finds as a matter of ultimate fact that

Respondent did not intentionally discriminate against Petitioner

based on her race (the only protected class proven at hearing) or

any other classification that might have applied to Petitioner

but was not proven at hearing. 9/

CONCLUSIONS OF LAW

32. DOAH has jurisdiction of the subject matter of and the

parties to this proceeding. §§ 120.569, 120.57(1), and

760.11(6), Fla. Stat. (2016). 10/

33. The Florida Civil Rights Act of 1992, codified in

chapter 760, Florida Statutes, prohibits discrimination in the

workplace and in places of public accommodation.

34. Section 760.08 proscribes discrimination in places of

public accommodation, 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.

35. Section 509.092, F lorida Statutes, provides the

following clarification regarding a public accommodation

discrimination claim under the Florida Civil Rights Act:

Public lodging establishments and public food

service establishments are private

enterprises, and the operator h as the right

to refuse accommodations or service to any

person who is objectionable or undesirable to

the operator, but such refusal may not be

based upon race, creed, color, sex,

pregnancy, physical disability, or national

origin. A person aggrieved by a violation of

this section or a violation of a rule adopted

under this section has a right of action

pursuant to s. 760.11.

36. Section 509.101(1) is also germane. This statute

provides that places of public accommodation Ðmay establish

reasonable rule s and regulations for the management of the

establishment and its guests and employees;Ñ and that each guest

is required to abide by those rules and regulations while at the

establishment, so long as notice of the rules is posted in

English in a prominent place in the establishment.

37. The parties stipulated, and the undersigned concludes,

that Respondent is a Ðpublic accommodation,Ñ as defined in

section 760.02(11), as a restaurant principally engaged in

selling food for consumption on the premises.

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

§ 2000a, prohibits discrimination in places of public

accommodation, in language identical to that found in section

760.08, except for the omission of certain protected classes not

at issue in thi s case. Accordingly, federal cases interpreting

the similar federal civil rights law apply. See Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

39. Due to the relative lack of Title II cases, federal

courts routinely find guidance in the more extensive case law

developed under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000. Federal courts have extended to public

accommodation cases the shifting - burden analysis adopted by the

U.S. Supreme Court for employment discrimination cases in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 804, 36 L.

Ed. 2d 668, 93 S. Ct. 1817 (1973). See Fahim v. Marriott Hotel

Servs. , 551 F.3d 344, 349 (5th Cir. 2008), and cases cited

therein. This analysis has been adopted in FC HR public

accommodation cases. See, e.g. , Inman v. Jian Deng Bao, d/b/a

China Gardens Rest . , Case No. 11 - 5602 (Fla. DOAH Feb. 12, 2012;

FCHR Apr. 23, 2012).

40. Under the McDonnell analysis as adapted to public

accommodation discrimination cases, Petitio ner ha s the burden of

proving by a preponderance of the evidence a prima facie case of

unlawful discrimination. If Petitioner establish es a prima facie

case, then the burden shifts to Respondent to articulate

legitimate non - discriminatory reasons for the alleged

discriminatory conduct. If Respondent meets this burden of

production, then the burden shifts back to Petitioner to prove

that the articulated reasons are a mere pretext, and that the

actions were, in fact, motivated by unlawful discriminatory

rea sons. Laroche v. DennyÓs Inc. , 62 F. Supp. 2d 1375, 1382 - 1383

(S.D. Fla. 1999); Wells v. Burger King Corp. , 40 F. Supp. 2d

1366, 1368 (N.D. Fla. 1998).

41. The ultimate burden is on Petitioner to prove that she

was the victim of intentional discriminatio n. Laroche ,

62 F. Supp. 2d at 1383.

42. To establish a prima facie case, Petitioner must prove

the following: (1) Petitioner is a member of a protected class;

(2) Petitioner attempted to contract for services and to afford

herself the full benefits and enjoyment of a public

accommodation; (3) Petitioner was denied the right to contract

for those services and, thus, was denied the full benefits or

enjoyment of a public accommodation; and (4) such services were

available to similarly situated persons outs ide the protected

class who received full benefits or enjoyment, or were treated

better. 1 1 / Laroche , 62 F. Supp. 2d at 1382.

43. Petitioner proved, and Respondent did not dispute, that

she is a member of a protected racial class because she is black.

Pe titioner did not prove that she is also a member of a protected

class with regard to national origin or with regard to an alleged

handicap/disability, as no evidence was offered on either of

these subjects during the evidentiary hearing.

44. Petitioner ar guably proved that she went to McDonaldÓs

on the day in question for the purpose of obtaining services and

affording herself full benefits and enjoyment of this public

accommodation. Nonetheless, Petitioner failed to express this

intent to Mr. Vidler when he asked if she intended to make a

purchase.

45. Based on the findings of fact above, Petitioner did not

prove that Respondent denied her the right to contract for

services, thereby denying her full benefits or enjoyment of

McDonaldÓs, nor did Petitioner prove that she was subjected to

markedly hostile conduct that a reasonable person would find

objectively unreasonable under circumstances giving rise to an

inference of discrimination.

46. Instead, the more credible evidence established that

Petitioner u nreasonably failed to respond to Mr. VidlerÓs

reasonable initial query of whether she intended to make a

purchase, and Petitioner unreasonably erupted when Mr. Vidler

came back several minutes later to tell her that if she did not

intend to make a purchase , she was loitering and needed to leave.

If Petitioner had simply responded by telling Mr. Vidler that her

boyfriend was at the counter purchasing food, that would have

ended the inquiry and the couple could have enjoyed their

breakfast.

47. RespondentÓs non - discriminatory, non - hostile

application of its no - loitering policy did not deny Petitioner

the right to contract for services at McDonaldÓs. Instead,

PetitionerÓs own refusal to respond to a reasonable inquiry

caused the disruption of the coupleÓs fu ll enjoyment of their

purchased breakfast and the accommodations to consume it on the

premises. See, e.g. , Stevens v. Steak N Shake, Inc. , 35 F. Supp.

2d 882, 891 (M.D. Fla. 1998) (Ð[S]ervice contingent on prepayment

without racial discrimination is not t antamount to a refusal of

service.Ñ).

48. Petitioner failed to prove that any other similarly

situated person at McDonaldÓs was treated more favorably that day

or any other day. Instead, RespondentÓs witnesses testified

consistently and credibly that the y enforced their no - loitering

policy uniformly to all persons, regardless of race, nationality,

or any othe r factor, by approaching anyone who has been sitting

at a table for a few minutes without any apparent McDonaldÓs food

or drink items and politely in quiring whether the person intend s

to make a purchase. Most people respond in some fashion.

Petitioner did not. For those who do not respond, the inquiring

manager will walk away for a few minutes, and most of the non -

responding persons are gone before the manager com es back.

Petitioner was not gone (as she was waiting for her boyfriend,

unknown to Mr. Vidler). For those like Petitioner who do not

disappear before the managerÓs return, they are uniformly met

with the same follow - up comment that Petitio ner received: if the

person does not intend to make a purchase, they are loitering and

need to leave.

49. Petitioner contends that her boyfriend, Robert Millan,

was a similarly situated person who is not a member of

PetitionerÓs protected class and was t reated more favorably that

day. Although Petitioner proved that her boyfriend is not a

member of PetitionerÓs protected racial class, the evidence

establishes that he was not similarly situated. He was not

seated at a table alone over a ten - minute span w ith no apparent

McDonaldÓs purchases, so as to invite Mr. VidlerÓs inquiries;

instead, he was at the ordering counter the whole time, ordering

their breakfast.

50. No evidence was offered to prove that the no - loitering

policy has not been applied unifor mly to all persons regardless

of race, gender, nationality, disability, or any other factor,

who are seated at a table in the restaurant without purchased

food or drink. No evidence was offered to prove that the no -

loitering policy was waived for any othe r person within or

outside of PetitionerÓs protected class. Accordingly, Petitioner

failed to prove that other similarly situated persons not in her

same protected class were treated better than Petitioner or were

given full benefits or enjoyment of this public accommodation

while those same benefits/enjoyment were denied to Petitioner.

51. Even if Petitioner had met her burden of proving a

prima facie case, Respondent articulated legitimate non -

discriminatory reasons for its actions, by explaining its

re asonable policy to inquire of the intentions of persons seated

in the restaurant without any apparent food or drink items

purchased at McDonaldÓs. Respondent reasonably explained its

particular need for vigilance in enforcing this policy at this

particula r restaurant, in a high - crime, low - income area, where

there has been a history of problems caused by persons in the

restaurant for purposes other than purchasing items sold by

McDonaldÓs for consumption there.

52. Petitioner offered no evidence to suggest that

RespondentÓs policies and procedures were mere pretexts.

Instead, Respondent proved that its policies and procedures were

reasonable and were not pretexts for engaging in discrimination.

53. Petitioner did not meet her ultimate burden of proving

t hat she was a victim of intentional discrimination based on race

or any other classification. Instead, Petitioner was subjected

only to RespondentÓs reasonable policies and procedures that were

applied in non - discriminatory fashion.

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 the P etition for R elief

filed by Petitioner Jennifer M. Foster - Garvey.

DONE AND ENTERED this 11th day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May , 2017 .

ENDNOTE S

1/ The Joint Pre - hearing Stipulation also set forth PetitionerÓs

position that issues to be det ermined included whether FCHR erred

by considering affidavits submitted on RespondentÓs behalf that

were allegedly not in proper form, and whether Petitioner was

entitled to a Ðdefault judgmentÑ based on RespondentÓs failure to

answer the complaint. These contentions were addressed at the

outset of the hearing, to ensure that PetitionerÓs representative

understood that the hearing was de novo, not a review of FCHRÓs

investigation, and that Ðdefault judgmentsÑ are not authorized

because no answer is require d. (Tr. 9 - 11).

2/ Petitioner is described by her race/skin color, as observed at

hearing. In PetitionerÓs PRO, she is described as ÐJamaican of

African Descent or of African Descent.Ñ No evidence was

presented that PetitionerÓs nationality is Jamaic an; nonetheless,

it might be inaccurate to describe Petitioner as ÐAfrican -

American.Ñ Likewise, no evidence was presented regarding

PetitionerÓs boyfriendÓs race, ethnicity, or national origin. In

PetitionerÓs PRO, PetitionerÓs representative goes to som e

lengths to argue from the boyfriendÓs surname (Millan, the same

as the representativeÓs surname), that he is Hispanic. Argument

based on possible name origins cannot substitute for actual

evidence; these questions could have been asked, but were not.

N onetheless, based on observation, PetitionerÓs boyfriend did not

appear to be a member of the black race. His classification is

relevant only insofar as PetitionerÓs representative argued that

the boyfriend was a similarly situated person who is not of th e

same protected class as Petitioner and who was more favorably

treated. The undersigned accepts that the boyfriend is not a

member of the same protected class as Petitioner.

3/ Mr. Vidler described PetitionerÓs positioning as Ðvery odd

. . . with the feet up on the windowsill is kind of a -- I donÓt

want to say disrespectful, but it just -- it's not a normal seating

position for a restaurant.Ñ (Tr. 46). Although Mr. Vidler was

hesitant to say that sitting at a restaurant table with both feet

propped up o n the windowsill is disrespectful, he certainly could

have said that it was disrespectful of McDonaldÓs property, of

the people who have to clean windowsills, and of the customers

who might assume that a Corian window ledge would be a clean and

appropriate place to put down a purse or a shopping bag. Putting

oneÓs feet on a window ledge in a restaurant is inappropriate,

unsanitary, and disrespectful.

4/ The undersigned acknowledges that at hearing, Petitioner

testified that she told Mr. Vidler that she was waiting for her

boyfriend to bring food. PetitionerÓs testimony in this regard

was not credible and is not credited. Instead, Mr. VidlerÓs

testimony was the more credible version of this conflicting

point. As Mr. Vidler said several times, with grea t sincerity,

if Petitioner had only said yes, her husband (or boyfriend) is

ordering food, the inquiry would have ended. Mr. Vidler said

(again, with great sincerity) that even if Petitioner had

responded by saying Ðhey, shut up, get away from me, donÓt b e

rude, my husbandÓs up there buying foodÑ (Tr. 60), he would have

backed off immediately, as his goal of confirming that Petitioner

was there for an appropriate purpose would have been met. It is

noted that Ms. Owensby corroborated Mr. VidlerÓs testimony that

Petitioner did not respond when asked if she intended to make a

purchase. Ms. OwensbyÓs testimony was also credible.

5/ At the hearing, Petitioner was present and heard Mr. Vidler

testify about what she did with the chair. He was aggressively

questioned by PetitionerÓs representative about: whether the

chair was Ðthrown,Ñ Ðflung,Ñ or, as suggested by the

representative, perhaps it was Ðmore like a shove, thenÑ

(Tr. 66); how high in the air the chair traveled; how far the

chair traveled; and whether it just hit the half - wall, went part

of the way over the half - wall , or went all the way over the half -

wall. The representativeÓs questions, particularly his

suggestion that the chair was maybe just shoved by Petitioner

instead of being thrown up i n the air, seemed to acknowledge that

Petitioner caused something untoward to happen to the chair. Yet

Petitioner, who testified only briefly (spanning less than two

transcript pages, from page 70, line 18 to page 72, line 13),

after Mr. Vidler testified about the chair, was never asked about

what she did to the chair, nor did she volunteer one word about

the chair. In keeping with his aggressive hearing strategy,

PetitionerÓs representative spent the bulk of the PRO attempting

to pick apart the testimony of Mr. Vidler and RespondentÓs other

witnesses, offering dictionary definitions of the various words

they used to describe the incident, and then arguing from those

definitions that their testimony was wildly inconsistent. This

effort was wholly unpersua sive. The subsequent attempt to parlay

the so - called inconsistencies into a claim that RespondentÓs

witnesses committed perjury was over the top, unwarranted, and

inappropriate. Contrary to PetitionerÓs argument, the

undersigned finds the testimony of Re spondentÓs witnesses

regarding the events on the day in question to be generally

consistent, credible, and persuasive. And with respect to their

testimony regarding the airborne chair, the testimony stands

unrefuted by Petitioner, who had every opportunit y to address

what was said on the subject, but chose not to respond.

6/ Robert Millan was sequestered from the hearing room at the

request of PetitionerÓs representative, who asked for

sequestration of all witnesses besides Petitioner and Mr. Vidler

as R espondentÓs representative. Robert MillanÓs testimony was

credible and notable in its consistency with RespondentÓs

witnesses and its inconsistency with PetitionerÓs testimony. In

particular, contrary to PetitionerÓs hearing testimony,

immediately after the encounters with Mr. Vidler, Petitioner did

not tell her boyfriend that Mr. Vidler yelled at her, threatened

to call the police, or threatened to have her arrested. Surely,

if that is what Mr. Vidler did and said, Petitioner would have

included those d etails when she told her boyfriend what

Mr. Vidler did to offend her.

7/ PetitionerÓs representative lodged a disingenuous post - hearing

attack on one of RespondentÓs exhibits, offered and admitted into

evidence without objection for the purpose of showi ng the

restaurantÓs employees by date of hire and job classification,

referred to on the exhibit as Ðdepartment,Ñ i.e., whether the

employee is in a managerial or crew position. (R. Exh. 2).

RespondentÓs other exhibit reflects the same list of employees,

whether the employee is male or female, and whether the employee

is black, white, or Hispanic. (R. Exh. 1). The post - hearing

attack was directed to RespondentÓs Exhibit 2, because

RespondentÓs counsel identified the exhibit (correctly) by the

heading at the top of the document, ÐEmployee Pay/Dept.Ñ As

Mr. Vidler testified, the document was generated from

RespondentÓs computer records. A column on the exhibit, labelled

Pay/Rate, is blank, apparently having been redacted.

PetitionerÓs representative, in PetitionerÓs PRO, made the wholly

unwarranted and inflammatory assertion that counsel for

Respondent committed a fraud on the tribunal by reciting the

heading of the document (presumably because someone not looking

at the information on the document might think there is pay/rate

information there). He also argued, without any basis, that the

evidentiary value of the document is undermined by the omission

of the pay/rate information. The argument is, apparently, that

even though RespondentÓs exhibits refl ect impressive diversity at

the Lockhart restaurant, one cannot really know whether

Respondent discriminates without also knowing whether equal pay

is provided. This argument is baseless. Perhaps if this was an

action by an employee claiming employment d iscrimination as to

the pay provided, the information PetitionerÓs representative

belated ly says is important might actually be relevant. Instead,

this argument comes across as a concession that RespondentÓs

exhibits show an impressively diverse staff, su ch that

PetitionerÓs representative felt compelled to lodge such an

unwarranted attack. There was no fraud on this tribunal, nor was

the exhibit misrepresented in any way; the exhibit was offered

for the relevant information shown. Had Respondent preserv ed

this argument by timely objecting to the introduction of the

exhibit at hearing, Respondent would have been able to explain

why the pay rate information was taken out of the exhibit, but

PetitionerÓs belated attack deprives Respondent of that

opportunit y. By these unwarranted and inflammatory post - hearing

accusations, not preserved by a timely objection at hearing,

PetitionerÓs representative has come dangerously close to

violating the standards of conduct to which qualified

representatives must adhere in this tribunal. See Fla. Admin.

Code R. 28 - 106.107(3)(a), (b).

8/ Throug hout this proceeding, from the Pe tition for R elief

through the PRO, PetitionerÓs representative has attempted to

argue that Respondent must demonstrate the elements of the crime

o f loitering or trespass in order to apply its no - loitering

policy to persons at the restaurant. That argument is rejected.

Respondent is not seeking to prosecute Petitioner or anyone else

for a crime, and its business policies are not subject to

determin ation as if one were interpreting and applying a criminal

statute in a penal proceeding. The policies themselves are not

at issue; instead, the only question is whether the policies are

a pretext to cover up intentional discrimination. Curiously,

althoug h for virtually every other word used by RespondentÓs

witnesses, PetitionerÓs representative resorted to dictionary

definitions, PetitionerÓs rep resentative did not consider the

ordinary meaning of the term Ðloiter,Ñ which means: ÐTo remain

in an area for no obvious reason,Ñ as in teenagers loitering in

the parking lot , according to Merriam - WebsterÓs online dictionary

at www.merriam - webster.com ; or ÐTo stand idly about; linger

without any purposeÑ according to the American Heritage online

dictionary at www.ahdictionary.com . RespondentÓs no - loitering

polic y is consistent with the ordinary meaning of loitering as

gleaned from dictionaries . More to the point, Responden t proved

that is no - loitering policy is uniformly applied, and is not used

as a pretext for intentional discrimination.

9/ Petitioner alleged in her Petition for Relief that she was

subjected to discrimination not only because of her race/skin

color, but also, because of her national origin, alleged to be

Jamaican, and because of her handicap/disability. Petitioner did

not offer any proof of her national origin, nor did Petitioner

offer any proof to establish that she has a handicap or

disability within the meaning of the Florida Civil Rights Act.

Indeed, these omissions were noted as Petitioner was concluding

her brief testimony, and her representative was given the

opportunity to ask additional questions directed to the

alternative theories of discrimi nation. He elected not to do so.

It was acknowledged that PetitionerÓs race had been established

and that the claimed discrimination would be limited to the

classification that had been proven. Despite this record

discussion, PetitionerÓs PRO was replet e with references to

PetitionerÓs alleged nation al origin and to PetitionerÓs alleged

handicap/disability. No citation to any record evidence was

provided, and none could be provided. Instead, the PRO included

improper references to material extraneous t o the record

evidence. As was made clear to PetitionerÓs representative at

hearing, findings of fact must be based exclusively on the

evidentiary record. See § 120.57(1)(j), Fla. Stat. Thus, the

references to matters outside of the record were not consi dered.

10/ References to Florida Statutes are to the 2016 codification.

T he discrimination laws cited herein were not amended in 2016 .

1 1 / In a recent administrative case involving alleged public

accommodation discrimination, a somewhat different test was used

for whether a prima facie case was established. In Ferrer v.

PepitoÓs Plaza , Case No. 16 - 0 589 (Fla. DOAH Oct. 27, 2016; FCHR

Jan. 19, 2017), the Administrative Law Judge borrowed what he

described as Ða workable testÑ for a claimantÓs prima faci e case

from a Iowa federal district court decision in Kirt v. Fashion

Bug # 3253, Inc. , 479 F. Supp. 2d 938 (N.D. Iowa 2007). The test

requires proof of the following elements: (1) the claimant is a

member of a protected class; (2) the claimant sought to enjoy the

accommodations, advantages, facilities, services, or privileges

of a "public accommodation"; and (3) the claimant did not enjoy

the accommodations, advantages, facilities, services, or

privileges of the "public accommodation" in that (a) she was

refused or denied the accommodations, advantages, facilities,

services, or privileges of the "public accommodation" under

circumstances giving rise to an inference of discrimination, or

(b) she was allowed to use the accommodations, advantages,

facilities , services, or privileges of the "public

accommodation," but was otherwise discriminated against in the

furnishing of those accommodations, advantages, facilities,

services, or privileges by being subjected to markedly hostile

conduct that a reasonable per son would find objectively

unreasonable under circumstances giving rise to an inference of

discrimination. Id. at 963. FCHR adopted the recommended

conclusions of law in its Final Order, although FCHR has also

adopted the alternative articulation of the test for establishing

a prima facie case in the Inman decision cited above. The

alternative Ðmarkedly hostile conductÑ test is addressed herein.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplana de Way

Tallahassee, Florida 32399

(eServed)

Dixie Daimwood, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

(eServed)

Paul David Brannon, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

(eServed)

Gre gory John Millan

Qualified Representative

9 Adler Place

Brooklyn, New York 11208

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SU BMIT 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.