18-003956 Daniel Askinas vs. United Natural Foods Status: Closed Recommended Order on Wednesday, November 28, 2018.

Summary: Petitioner failed to prove discrimination when employer hired a more qualified person for the job for which Petitioner had applied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL ASKINAS,

Petitioner,

vs. Case No. 18 - 3956

UNITED NATURAL FOODS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 17, 201 8 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by video tele conference in West Palm

Beach and Tallahassee, Florida. Respondent's counsel and witness

participated by telephone.

APPEARANCES

For Petitioner: Daniel Askinas, pro se

1208 East Atlantic Avenue, Apartment A

Delray Beach, Florida 33483

For Respondent : Nancy A. Johnson, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue, Suite 1250

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent's failure to hire Petitioner

constituted discrimination on the basis of religion, as provided

by section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Employment Complaint of Discriminat ion filed with the

Florida Commission on Human Relations (Commission) on Aug ust 17,

2017, Petitioner alleged that Respondent discriminated against

him based on religion and race by failing to hire him as a

merchandiser. On June 18, 2018, the Commission entered a

Determination: No Reasonable Cause.

By Petition for Relief filed with the Commission o n July 20,

2018, Petitioner alleged that Respondent discriminated against

him based on religion by failing to hire him as a merchandiser.

On July 30, 2018, the Commission transmitted the file to DOAH.

At the final hearing, Petitione r confirmed that he was not

claiming discrimination based on race. Petitioner and Respondent

each called one witness. Petitioner offered into evidence no

exhibits . Respondent offered into evidence seven e xhibits:

Respondent Exhibits 1 through 7, which were admitted into

evidence .

On October 30, 2018, the court reporter fi led the

transcript. On November 13, 2018, Respondent filed a proposed

recommended order .

FINDING S OF FACT

1. Petitioner graduated from the University of Rhode Island

with a bachelor's degree in marketing management. He has had an

unbroken employment history from 1980 to present.

2. Respondent was employed as a sales representative of

casual and sports shoes in south Fl orida from 1980 to early 1997.

After owning and operating a sandwich shop with 60 seats in Boca

Raton for six years, Petitioner resumed work as a sales

representative of sports shoes for two years. From 2006 through

2009, Petitioner was employed as a mar keter and sales

representative for various retail lines unrelated to food.

3. F or four and one - half years, ending in late 2013,

Petitioner was employed as a merchandiser of various Nestle ice -

cream products to Publix, Winn - Dixie, Target, and Walmart out lets

in West Palm Beach; one of these products was Haagen - Dazs ice

cream, which is a natural food. In 2014, Petitioner owned and

operated a salad restaurant with 20 seats in Delray Beach. From

2015 to present, for 20 hours weekly, Petitioner has served as a

concierge at a private tennis club in Boca Raton. Also, for 2017

and the first half of 2018, for 20 hours weekly, Petitioner also

was employed as a merchandiser of Nabisco cookies and crackers to

Publix, Walmart, and Target outlets from W est Palm Beach to Fort

Lauderdale ; none of these products i s a natural food.

4 . Respondent is a distributor of natural foods to retail

outlets. At all material times, Respondent employed at least

15 persons for each working day in at least 20 calendar we eks.

5. In 2017, Petitioner submitted a job application to

Respondent for a full - time job as a merchandiser with Respondent .

A representative of Respondent contacted Petitioner and set up an

appointment for a job interview on July 12, 2017, at a Hampto n

Inn in Coconut Creek. Keith Olsen , Respondent's manager of

retail merchandising, conducted the interview.

6 . The interview started unremarkably, as Mr. Olsen

described the job, which entailed considerable air travel.

Petitioner mentioned that he lived between two major airports.

Mr. Olsen then asked Petitioner if he lived in a Jewish

community. Petitioner replied that he lived by the beach.

Examining Petitioner's resume, Mr. Olsen then asked if Petitioner

was Jewish . Petitioner confirmed that he is Jewish. Mr. Olsen

said that Respondent , which distributes four or five Kosher food

items , sold Kosher food in Boca Raton and Delray Beach , and

Mr. Olsen was interested in whether Petitioner might be able to

reinvigorate Respondent's lagging Kosher sales.

7 . Petitioner then recited his experience in the food

industry, and Mr. Olsen said that Petitioner had "plenty" of

relevant experience. After Mr. Olsen summarized the benefits,

Petitioner noted that he might save them s ome money on health

insurance because he had his own. Mr. Olsen asked if his

insurance was the "Obamacare crap," and Petitio ner did not reply.

Sensing that his inquiry about Petitioner's religion had

irritated Petitioner, Mr. Olsen tried to regain his footing by

recalling that, as a child, he had delivered newspapers to "Jews,

Catholics, and Christians," but this comment, itself awkward, did

not dispel the unease created by Mr. Olsen 's earlier question of

whether Petitioner was Jewi sh .

8 . To his credit, Mr. Olsen testified candidly, countering

two or three specific items of Petitioner's testimony with no

more than tepid "I don't recall" answers . His candor supports

his remaining testimony concerning the interview process, as set

forth immediately below .

9 . Respondent received over 200 applications for this

position. Mr. Olsen scheduled 11 interviews for July 12, but

only eight applicants showed up for their interviews. Having

conducted numerous interviews for Respondent , Mr. Olsen always

assesses interviewees as to five attributes: customer service,

communication skill, ability to read planograms ( i.e., diagrams

showing the strategic placement of products on shelves), product

knowledge, and awareness of national trends. Among the eight

interviewees, Richard Magnum demonstrated his superior

qualifications as to these five attributes.

10 . Mr. Magnum had over 17 years' experience in customer

service and merchandising and was "very direct" with his answers .

Petitioner's customer service and communication skills placed him

third among the eight interviewees as to these attributes.

Mr. Magnum also demonstr ated easy familiarity with planograms and

ranked first among the interviewees as to knowledge of the family

of products purveyed by Respondent; Petitioner and another

interviewee were tied for second as to product knowledge. As for

national trends, Mr. Ma gnum "seemed to know what's going on."

"National trends " seems to have something to do with marketing

and the fact that Respondent has over 90,000 SKUs, which

evidently underscores the large number of products handled by

Respondent.

11 . Following the completion of the interview process,

Respondent offered the job to Mr. M agnum, who was still employed

by Respondent at the time of the hearing. On these facts,

Petitioner has failed to prove that his qualifications were at

least equal to those of Mr. Magn um.

CONCLUSIONS OF LAW

12 . DOAH has jurisdiction. §§ 120.569 , 120.57(1), and

760.11(7), Fla. Stat. Respondent is an employer, as defined in

section 760.02(7).

1 3 . Section 760.10(1)(a) declares that it is an unlawful

employment practice for an employer to refuse to hire an

individual due to the individual's religion. Petitioner must

prove discrimination by a preponderance o f the evidence.

§ 120.57(1)(j), Fla. Stat.

1 4 . This is a disparate - treatment case, as distinct from a

disparate - impact or pattern - and - practice disparate - treatment

case . Cooper v. Southern Co. , 390 So. 3d 695, 723 (11th Cir.

2004). Liability in a disparate - treatment case depends on proof

that "'the protected trait actually motivated the employer's

decision.'" Young v. UPS , 135 S. Ct. 1338, 1345 (2015) (citing

Raytheon Co. v. Hernandez , 540 U.S. 42 (2003)).

1 5 . Absent direct evide nce of disparate treatment, a

complainant may prove unlawful discrimination by circumstantial

evidence, typically using the burden - shifting framework of

McDonnell Douglas v. Green , 411 U.S. 792 (1973). Young , 135

S. Ct. at 1345 (citing Trans World Airline s, Inc. v. Thurston ,

469 U.S. 111 (1985)) ; Johnson v. Great Expressions Dental Ctrs.

of Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d DCA 2014) . The

McDonnell Douglas burden - shifting framework requires that the

complainant initially prove a prima facie case of discrimination

by proving four elements: he belongs to a minority, he applied

and was qualified for an available job, the employer rejected his

application, and the employer continued to seek applicants from

persons of the complainant's qualifications. Young , 135 S. Ct.

at 1345 (citing McDonnell Douglas , 411 U.S. at 802).

1 6 . It is unnecessary to consider the remaining two parts

of the McDonnell Douglas burden - shifting framework because

Petitioner has failed to prove that his qualifications were at

least the equivalent of the qualifications of Mr. Magnum.

Respondent elected to hire a more - qualified applicant, so

Petitioner is unable to prove a prima fac ie case of

discrimination i n hiring, even assuming that Mr. Magnum is not

Jewish. More generally, a largely pointless inquiry about

Petitioner's religion coupled with an awkward attempt to show a

history of nondiscrimination in the delivery of newspapers

provide little support for an inference that Mr. Olsen's

rejection of Petitioner's application was motivate d by religious

discrimination.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 2 8 th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 2 8 th day of November , 2018 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Daniel Askinas

1208 East Atlantic Avenue , Apartment A

Delray Beach, Florida 33483

Nancy A. Johnson, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue , Suite 1250

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(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.