17-002568 D&Apos;Shante L. Lebeaux vs. The Meltdown On 30a Status: Closed Recommended Order on Friday, September 1, 2017.

Summary: Petitioners failed to prove even a prima facie case to support their claims of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D'SHANTE L. LEBEAUX,

Petitioner,

vs. Case No. 17 - 2568

THE MELTDOWN ON 30A,

Respondent.

_______________________________/

ERIN M. SCOTT,

Petitioner,

vs. Case No. 17 - 3083

THE MELTDOWN ON 30A,

Respondent.

_______________________________/

LATANYA M. SCOTT,

Petitioner,

vs. Case No. 17 - 3084

THE MELTDOWN ON 30A,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in these

consolidated case s on August 16 , 2017 , in DeFuniak Springs ,

Florida, before R. Bruce McKibben, a duly - designated

Administrative Law Judge 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 7 codification.

APPEARANCES

For Petitioner s : D'Shante LaCheryl LeBeaux , pro se

Apartment B

190 Patrick Drive

Defuniak Springs, Florida 32433

Erin M. Scott, pro se

Latanya M. Scott, pro se

Post Office Box 962

Defuniak Springs, Florida 32433

For Respondent: Timothy Tack , Esquire

Miller Tack & Madson

Suite 135

3550 Buschwood Park Drive

Tampa, Florida 33618

STATEMENT OF THE ISSUE S

Whether Respondent, The Meltdown on 30A (ÐThe Mel t down Ñ),

discriminated against Petitioner s , DÓShante L. LeBeaux,

Erin M. Scott, and Latanya M. Scott (collectively, the

ÐPetitionersÑ) , in violation of the Florida Human Rights Act ;

and, if so, what penalty should be imposed?

PRELIMINARY STATEMENT

Each of the three Petitioners filed an Employment C harge

of Discrimination form with the Florida Commission on Human

Relations (ÐFCHRÑ) claimin g discrimination by their employer,

The Meltdown . The charges were filed with FCHR on August 30,

2016. Ms. LeBeaux c laim ed discrimination on the basis of

race, sex and retaliation. Erin Scott and Latanya Scott

claimed discrimination on the basis of race and sex. FCHR

issued a Determination: No Reasonable Cause for each of the

Petitioners . The Petitioners timely filed Petition s for Relief

with FCHR . The Petition s were forwarded to DOAH , assigned to

the undersigned , and consolidated for final hearing .

At the final hearing, each of the Petitioners testified on

their own behalf and called two witnesses in rebuttal: Carolyn

Bramlett and Erica Scott. Petitioners did not offer any

exhibits into evidence . The Meltdown called t wo witnesses :

Larry Haile, ge neral manager; and Jim Shirley, owner . The

Meltdown Ós E xhibits 1 through 6 , 8 and 1 0 were admitted into

evidence.

The parties advised the undersigned that a transcript of

the final hearing would not be ordered . Their proposed

recommended orders ( Ð PROs Ñ ) were therefore due within 10 days

after the final hearing, i.e., on or before Augu st 28 , 2017 .

Neither party timely filed a PRO.

FINDINGS OF FACT

1 . The Meltdown is a restaurant operated out of a 23 - foot -

long Airstream trailer. It doe s not have table s and chairs

for customers to consume their meals; it is a Ðto goÑ

establishment. The trailer can comfortably hold about five

people when it is in operation. The Meltdown operates on

H ighway 30A ( hence its name) and is generally parked near the

beach in Seaside, a tourist area. The Meltdown serves between

500 and 700 sandwiches per day. The restaurant is one of five

owned by Mr. Shirley and managed by Mr. Haile.

2 . In February 2016, The Meltdown switched its payroll

functions from Oasis to ECB. The change resulted also in a new

method of signing in, on - line, by which employees were able to

be paid.

3 . DÓShante L. LeBeaux is an African - American woman.

At final hearing , she claimed to have a disability, but did

not raise that as a basis for the d iscrimination claim

against The Meltdown. She began working for The Meltdown in

June 2016. She voluntarily left her employment when her means

of transportation , Latanya Scott, resigned around August 19,

2016. While working for The Meltdown, Ms. LeBeaux was never

written up or disciplined for missing work or performing poorly.

4 . Ms. LeBeaux did not cite any instance of discriminatory

actions or words by her employer. She claimed that the manner

in which her schedule was handled , i.e., that she did not

always work the same hours as Latanya Scott, constituted

discrimination. The testimony was not persuasive.

5 . Latanya Scott is an African - American woman. She is

married to Erin Scott , an African - American woman. Latanya Scott

was hired on June 24, 2016. On August 10, 2016, she provided a

letter to The Meltdown which stated her intent to resign as of

August 19, 2016. As of that date , she voluntarily ceased

working for The Meltdown. Her reason for res igning was,

primarily, that Mr. Haile had not shown any compassion when

Latanya ScottÓs grandmother got sick (and ultimately passed

away).

6 . While working at The Meltdown, Latanya Scott was

written up for being belligerent to other employees. She was

passed over when a manager, Car olyn Bramlett, left her position

and a new manager was needed. No one was hired, however, to

replace Ms. Bramlett; Mr. Haile simply took over the

responsibilities himself.

7 . Erin Scott is an African - American woman and is the

wife of Latanya Scott. She was hired at The Meltdown on

May 29, 2016 , and continues to work there. She cited to no

discriminatory actions by The Meltdown, but suggested that other

related couples may have been treated somewhat differently than

were she and her wife. Her complaints were neither confirmed

nor deemed discriminatory. Erin Scott continues to work in a

supervisory capacity for The Meltdown and is considered a good

employee.

8 . Each of the Petitioners stated that they never received

an employee handboo k until recently, i.e., during the pendency

of this administrative hearing. They never saw, therefore, the

nepotism policy set forth in the handbook. T he owner and

manager maintain that all employees are given the handbook when

they Ðsigned inÑ as an emp loyee the first time. Based upon the

facts of this case, w hether or not the Petitioners were provided

an employee handbook or knew about the nepotism policy is

essentially irrelevant to their claims of discrimination.

9 . There were a number of family mem bers working at The

Meltdown when Mr. Haile first began managing. When ECB came in,

a nepotism policy was enacted that prevented any further

employment of family members. The family members who were

already there were grandfathered in, i.e., they were not asked

to resign.

10 . Mr. Haile does not remember Ms. LeBeaux raising the

issue of a disability at the time of her hiring. She did begin

asking for fewer hours, no more than 25 per week, at some point

and Mr. Haile tried to accommodate her. He learne d that she and

Latanya Scott were riding together, which created a small

problem, but he attempted to work around that issue as well .

11 . Mr. Shirley operates all of his restaurants without

tolerating discrimination or harassment. His credible testimony

was that the Petitioners seem to have a problem with how the

restaurant was managed rather than having a complaint about

discrimination. He genuinely appears to care about his

employees and to wish to do the right thing vis - à - vis his

employees.

12 . In sh ort, there was no credible or persuasive evidence

of discrimination against Petitioners by The Meltdown.

CONCLUSIONS OF LAW

13. 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.

14 . 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., Div. of Sec. & Inv .

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

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

778 (Fla. 1st DCA 1981) ) . According to section 120.57(1)(k),

ÐFindings of fact shall be based upon a preponderance of the

evidence . . . except as othe rwise provided by statute, and

shall be based exclusively on the evidence of record and on

matters officially recognized.Ñ In this case, Petitioners have

the burden of proving, by a preponderance of the evidence, they

were discriminated against in their w orkplace .

15 . Section 760.10 , Florida Statutes, provides, in

relevant part:

(1) It is unlawful employment practice for

an employer:

(a) To discharge or fail or

refuse to hire any individual, or

otherwise to discrimin ate against

any individual with respect to

compensation, terms, conditions, or

privi leges of employment, because

of such individualÓs race, color,

religion, sex, national origin, age,

handicap, or marital status.

16 . The Meltdown is an employer pursuant to s ection

760.02(7). Each of the Petitioners is an employee as defined in

42 U.S.C. § 12111(4).

17 . In McDonnell Douglas Corp. 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 ends the inquiry. See Ratliff v. State , 666 So.

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

1183 (Fla. 1996).

18. To establish a prima facie case of discrimination in

the present matter, Petitioners are required to show that each

of them 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 ( 11th Cir. 2008).

1 9 . Each Petitioner is a member of a protected class,

i.e., they are all African - American women . Each of them w as

Ðqualified for the position at issue,Ñ as confirmed by their

manager . However, none of the three Petitioners proved that she

was subjected to an adverse employment action. Ms. LeBeaux and

Latanya Scott both voluntarily resigned from their jobs at The

Meltdown. Erin Scott is still employed by The Meltdown . They

each failed to satisfy this prong of the test for a prima facie

case of discrimination.

20 . The claims by Petitioners are not supported by the

facts and evidence presented .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

that Respondent, The Meltdown on 30A, did not discriminate

against Petitioners, DÓShante L. LeBeaux, Erin M. Scott, and

Latanya M. Scott , and their P etitions for R elief should be

denied .

DONE AND ENTERED this 1st day of September, 2017 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September, 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

D'Shante LaCheryl LeBeaux

Apartment B

190 Patrick Drive

Defuniak Springs, Florida 32433

(eServed)

Timothy Tack, Esquire

Miller Tack & Madson

Suite 135

3550 Buschwood Park Drive

Tampa, Florida 33618

(eServed)

Erin M. Scott

Post Office Box 962

Defuniak Springs, Florida 32433

Latanya M. Scott

Post Office Box 962

Defuniak Springs, Florida 32433

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.