18-004738 Richard Puccini vs. Sojourn Hospitality-Naples Bay Resort Status: Closed Recommended Order on Tuesday, January 29, 2019.

Summary: Petitioner failed to establish a prima facie case of sex-based employment discrimination or retaliation under section 760.10, F.S., where no evidence was presented at the hearing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD PUCCINI,

Petitioner,

vs. Case No. 18 - 4738

SOJOURN HOSPITALITY - NAPLES BAY

RESORT,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

Andrew D. Manko , Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ) , pursuant to sections 120.569

and 120.57(1), Florida Statutes (201 8 ), 1/ on January 14, 2019 , by

video teleconference between sites i n Tallahassee and F ort Myers ,

Florida.

APPEARANCES

For Petitioner: Richard Puccini, pro se

( by telephone) Apartment 19

2030 Monroe Avenue

Naples, Florida 34109

For Respondent: Jason L. Gunter, Esquire

Gunter Firm

Suite 101

1514 Broadway

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

Whether Respondent, Sojourn Hospitality - Naples Bay Resort,

discri minated and retaliated against Petitioner, Richard Puccini,

on the basis of his sex, in violation of section 760.10, Fl orida

Statutes.

PRELIMINARY STATEMENT

On December 6, 2017, Petitioner, a massage therapist, filed

a complaint with the Florida Commission on Human Relations

(ÐFCHRÑ) asserting that Respondent, a resort and spa,

discriminated against him on the basis of his sex and then

retaliated by eliminating some of his work duties and ultimately

terminating him. Specifically, Petitioner alleged that his

supervisor, a female massage therapist, committed sex - based

discrimination by asking customers whether they preferred a

female or male therapist and scheduling appointments with female

therapists on a preferential basis , even when the customer gave

no gender preference, both of which decreased the number of his

appointments. Petitioner also alleged that his supervisor

r emoved him from any responsibility to schedule appointments when

he initially complained and thereafter terminated him when he

protested that his supervisor booked an appointment with herself ,

even when the customer requested a male therapist.

In respons e to the complaint, Respondent asserted that spa

standards required it to ask customers whether they preferred a

female or male therapist, that full time therapists (unlike

Petitioner, who was hired on an as - needed basis) were given

appointment precedence when customers failed to offer a gender

preference, and that Petitioner was terminated because he

allegedly yelled at a coworker and used profanity.

On August 8, 2018 , FCHR notified Petitioner of its

determination that no reasonable cause existed to believ e that

Respondent engaged in an unlawful employment practice. On

September 11, 2018, Petitioner timely filed a Petition for Relief

with FCHR and requested an administrative hearing on his

complaint for a discriminatory employment practice. On that same

d ay, FCHR referred this matter to DOAH and requested assignment

of an Administrative Law Judge to conduct a formal evidentiary

hearing.

T he undersigned initially scheduled the final hearing for

October 26, 2018 . On October 19, 2018, the undersigned held a

pre - hearing teleconference, at which Petitioner requested an

unobjected - to continuance to conduct additional discovery and

confirm the availability of his witnesses. On October 25, 2 018,

the undersigned issued an O rder granting the continuance and

resch eduling the final hearing f or January 14, 2019, at

9:30 a.m., to be heard by video teleconference at sites in

Tallahassee and Fort Myers , Florida. Th e O rder notif ied the

parties of the date, time, and location of the final hearing and

other pertinent pro cedures . The O rder w as served on all parties

and mailed to PetitionerÓs address of record with DOAH . In

advance of the hearing, Petitioner and Respondent both filed

their proposed exhibits.

At the final hearing, RespondentÓs counsel and witnesses

appea red in person in Fort Myers. Petitioner did not appear at

9:30 a.m., the scheduled start time for the hearing. However,

after the undersignedÓs office called Petitioner to inquire as to

his whereabouts, he appeared by telephone. Petitioner indicated

tha t he wished to proceed solely on his proposed exhibits and did

not plan to present the testimony of any witnesses. 2 /

Accordingly, PetitionerÓs Exhibits 1 and 2 were admitted

into evidence without objection. Respondent introduced no

exhibits into evidenc e. No witness testimony was presented.

No transcript of the proceedings was filed at DOAH. Though

the parties were given ten days to file their respective proposed

recommended orders, no such proposed orders were filed.

FINDING S OF FACT

1. The record is comprised solely of PetitionerÓs Exhibits

1 and 2, which constitute inadmissible hearsay for which no

exception to the hearsay rule has been established. 3 / Because no

testimony or other admissible evidence exists, as to which such

hearsay could be used t o explain or otherwise supplement, there

can be no findings of fact.

CONCLUSIONS OF LAW

2 . DOAH has jurisdiction over th e subject matter and

parties to this proceeding pursuant to sections 120.569 and

120.57(1).

3 . Petitioner must prove that Respondent discriminated and

retaliated against him on the basis of his sex by a preponderance

of the evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So.

3d 17 , 22 (Fla. 3d DCA 2009) ; § 120.57(1)(j), Fla. Stat. A

p reponderance of the evidence is defined as Ðth e greater weight

of the evidence,Ñ or evidence that Ðmore likely than notÑ tends

to prove a certain proposition. S. Fla. Water Mgmt. Dist. v. RLI

Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014 ) .

4 . Under the Florida Civil Rights Act of 1992 (ÐFCRAÑ),

sect ions 760.01 - .11 , Florida Statutes, an ÐemployerÑ shall not

discriminate against an individual because of that individualÓs

sex. § 760.10(1)(a), Fla. Stat.

5 . It is also unlawful for an Ð employer Ñ to engage in

retaliation , such as Ð discriminat [ing] agai nst any person because

that person has opposed any practice which is an unlawful

employment practice under this section . Ñ § 760.10(7), Fla. Stat.

6 . The FCRA defines ÐemployerÑ as Ðany person employing 15

or more employees for each working day in each o f 20 or more

calendar weeks in the current or preceding calendar year, and any

agent of such person.Ñ § 760.02(7), Fla. Stat.

7 . Lacking any record evidence as to the number of

individuals employed by Respondent, Petitioner failed to establish

that Respo ndent is an ÐemployerÑ under the FCRA.

8 . Even assuming Respondent is an Ðemployer,Ñ Petitioner

failed to establish that he was discriminated or retaliated

against on the basis of his sex.

9 . Because the FCRA is patterned after Title VII of the

Civil Rig hts Act of 1964, a s amended, Ð the Florida statute will

take on the same constructions as placed on its federal

prototype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla.

1st DCA 1994).

10 . Ð It is well - settled law that Florida courts follow the

thre e - part framework set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 802 - 04 (1973), and its progeny, for

establishing, by circumstantial evidence, a discrimination claim

based on disparate treatment in the workplace. Ñ Valenzuela ,

18 So. 3d at 21 - 22 .

1 1 . Under the McDonnell Douglas framework , Petitioner has

the initial burden of establishing a prima facie case of sex - based

discrimination . To establish a prima facie case, Petitioner must

demonstrate by a preponderance of the evidence that: 1) he is a

member of a protected class; 2) he was qualified for the position;

3) he was subjected to an adverse employment action; and 4) his

employer treated similarly - situated employees outside of his

protect ed class more favorably than he was treated. Va lenzuela ,

18 So. 3d at 22 ; Burke - Fowler v. Orange Cnty. , 447 F.3d 1319, 1323

(11th Cir. 2006).

1 2 . Because the record is devoid of any evidence on which

factual findings surrounding PetitionerÓs employment properly

could be made, Petitioner failed to prov e his claim of sex - based

employment discrimination.

1 3 . As to PetitionerÓs retaliation claim, he must establish

a prima facie case and demonstrate by a preponderance of the

evidence that: (1) he was engaged in statutorily protected

expression or conduct; (2) he suffered an adverse employment

action; and (3) there is a causal relationship between the two

events. Holifield v. Reno , 115 F.3d 1555, 1566 (11th Cir. 1997).

1 4 . Because the record is devoid of any evidence on which

factual findings surrounding PetitionerÓs termination properly

could be made, Petitioner failed to prove his retaliation claim.

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 in this proceeding finding that the

Petitioner failed to establish that Respondent discriminated

against him on the basis of his sex or retaliating against him

and dismissing the Petition in its entirety.

DONE AND ENTERED this 29th day of January , 2 019 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (201 8 ),

unless otherwise noted.

2 / P etitioner confirm ed that he wished to proceed without

presenting any testimony at the hearing. However, to the extent

his comments could be deemed a request for a continuance , the

undersigned denied that request as u ntimely and because good

cause had not been shown . Inde ed, though the hearing had been

duly noticed for several months, Petitioner decided not to appear

in pe rson Ï without notifying the under signed or Respondent in

advance Ï and only appeared by telephone after the undersignedÓs

office contacted him when he faile d to show up at the location.

Respondent also would be unduly prejudiced if its counsel and

witnesses were required to travel again to Fort Myers for another

hearing date.

3 / The record evidence is limited to PetitionerÓs Exhibits 1

and 2. Petitione rÓs Exhibit 1 is comprised of : portions of

FCHRÓs investigative file, including its investigative

memorandum ; PetitionerÓs Petition for Relief ; FCHRÓs no - cause

determination and notice thereof ; PetitionerÓs formal complaint

and rebuttal letters ; notes of FCHRÓs investigator ; several

comment forms from PetitionerÓs clients ; two apparent screen

shots of RespondentÓs schedule for October 19, 2016, and

October 21, 2017 ; an apparent screen shot of a purported text

message exchange between Petitioner and his su pervisor at the

resort, Cathy Ceballos ; a form nominating Petitioner as a ÐstarÑ

at work complet ed by Ms. Ceballos in July 2016; and an e - mail

review from a client about PetitionerÓs services, dated June 7,

2016. PetitionerÓs Exhibit 2 is an e - mail, dated January 8,

2019, from Jorge Ramirez to Petitioner concerning Mr. RamirezÓs

interview at the resort.

These exhibits were admitted in evidence without objection,

but the documents themselves and most of the information

contained therein (the majority of PetitionerÓs Exhibit 1 and the

entirety of PetitionerÓs Exhibit 2) constitute hearsay. Hearsay

is admissible in administrative proceedings, but can only be used

to explain or supplement other admissible evidence; a finding of

fact cannot be based on hear say alone unless that evidence would

be admissible in a civil action over objection. § 120.57(1)(c),

Fla. Stat.; Fla. Admin. Code R. 28 - 106.213(3). Petitioner

presented no evidence as to the facts surrounding the alleged

discrimination or retaliation oth er than what is contained in

these two hearsay exhibits; Petitioner also presented no evidence

to establish the predicate necessary to admit the exhibits or the

information therein under a hearsay exception. See Wark v. Home

Shopping Club , 715 So. 2d 323, 324 (Fla. 2d DCA 1998) (holding

that hearsay documents could not be used to support a finding of

fact where no other supporting evidence had been admitted and the

proponent of the hearsay failed to establish the predicate

necessary to admit the evidence u nder the business records

exception); Harris v. Game & Fresh Water Fish Com mÓn , 495 So. 2d

806, 808 - 09 (Fla. 1st DCA 1986) (same).

Accordingly, these two exhibits Ï the only evidence in the

record Ï cannot be used to make findings of fact.

COPIES FURNISH ED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Richard P. Puccini

Apartment 19

2030 Monroe Avenue

Naples, Florida 34109

(eServed)

Jason L. Gunter, Esquire

Gunter Firm

Suite 101

1514 Broadway

Fort Myers, Florida 33901

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.