20-003798 Donald Chew vs. Seven Lakes Association, Inc. Status: Closed Recommended Order on Wednesday, November 18, 2020.

Summary: Former employee failed to prove employer discriminated against him because of his race; employer had legitimate non-discriminatory reason for terminating Petitioner.

Petitioner, Donald Chew , based on h is race (African American) when it

terminated his employment; and , if so , what is the appropriate remedy.

P RELIMINARY S TATEMENT

On September 16, 2019 , Petitioner filed a Charge of Discrimination with

the Florida Com mission o n Human Relations (FCHR) alleging discrimination

based on " Race. " Specifically, Petiti oner, an African American male , alleged

he had been treated differently than his white counterparts and was

wrongfully terminated in violation of the Florida Civ il Right s Act (FCRA).

On July 13, 2020 , FCHR issued a " Determination: No Reasonable Cause , "

and Petitioner filed a timely Petition for Relief to contest that d etermination

on August 13, 2020 . The Petition for Relief again alleged Petitioner was wrongfully terminated due to h is race and provided more specific instances of

discriminatory treatment and racial comments . FCHR transmitted the

Petition to DOAH, where it was assigned to the undersigned and noticed for a final hearing.

On October 8, 2020, the par ties participated in a pre - hearing conf erence

regarding the final hearing procedures and the presentation of evidence.

At the final hearing , Petitioner offered his own testimony and that of

three other witnesses: Joan Farus (a white female and former co - worker at

the Association); Timothy Day (a white male and the former General Manager of the Asso ciation); and Tanisha Davis (an African American female

and Petitioner's wife) . Additionally, Petitioner's Exhibits P - B through P - E, P -

G through P - Q, and P - S we re admitted in evidence. Respondent offered the

testimony of four witnesses: Kathy Miske (a white female and Board member

for the Association); Carl Triola (a white male and Board member for the

Association); Linda Keyes (a white female and Board member fo r the

Association); and June Gibbs (a white female and Petitioner's former

s upervisor at the Association). Respondent's Exhibits R - A through R - S and R -

U through R - Y were admitted into evidence.

The Transcript of the he aring was filed on October 26, 2020 , and a

corrected copy of the Transcript was filed on October 29, 2020. The parties

both filed timely proposed recommended orders, which have been duly

considered .

F INDINGS OF F ACT

P ARTIES

1. Petitioner , Donald Chew, is an African American male who was

em ployed by the Association from January 23, 2017, to September 19, 2018.

During the time he was there, Mr. Chew was one of the Association's few

non - white employees.

2. Respondent, the Association , is a condominium association governed by

c hapter 718, Flori da Statutes. A ccording to Mr. Chew, a majority, if not all, of

the condominium owners are white . The Association has approximately

50 employees.

3 . The Association is governed by a Board of Directors (Board), made up of

five to seven members . All the Boar d members who testified at the hearing

were white. The Board hires a General Manager, who oversees the day - to - day

operations of the Association. This includes oversight over the condominium

grounds, recreation, and financial aspects of the Association. The General

Manager had check - writing authority for the Association.

4 . For the times relevant to Petitioner's claims, Timothy Day served as the

General Manager. 2 Prior to being hired Mr. Day was involved in an

investigation related to his employment with a l ocal government entity .

2 Mr. Chew was hired by the Association's General Manager Judy Grosvenor, but Mr. Day

became General Manager in August 201 7.

Neither the reason for the investigation nor the outcome of that investigation

was clear from the evidence. Regardless, Mr. Day was given the opportunity

to explain the circumstances related to the investigation to the Board prior t o

being hired.

5 . Relevant to this case, the General Manager oversaw the Accounting

Manager, who ma naged a staff of accountants. June Gibbs served as the

Accounting Manager who oversaw Mr. Chew from the date of his hire to

May 2018, while he was in the st aff accountant role.

M R . C HEW ' S J OB H ISTORY AND D UTIES

6 . The Association originally hired Mr. Chew for the position of staff

accounta nt. The hiring process consisted of review of Mr. Chew's resume, an

interview, and then a criminal background and referen ce check . The

Association did not check Mr. Chew's litigation history at the time it hired

him .

7 . In September 2017, Ms. Gibbs gave Mr. Chew a mi xed written

performance review. Although he was " Above Average " in initiative and

working relationships, Ms. Gibbs indicated he was " Below Average " in his

basic accoun ting skills and his tardiness. In her comments, she noted:

Don, I really dislike writing a negative evaluation.

But, your accounting skills really concern me. This is why I hired you and the core of your position. It's

been great that you have done well with the

insurance and working with Brown & Brown. Even

though we have struggled with the accounting parts of the insurance UMS you have done well assisting eve ryone setting [ ] this software up . And

I believe you are above a verage in computer

technology. But, once again accounting is the core.

At this point because I really need someone strong

in accounting behind me. I am going to have you

stay with what you are good at – wor king on the

insurance a nd UMS. And I will appoint you some

basic accounting jobs. Also work on any tardiness

issues.

8 . In March 2018, the Association requested that Mr. Chew obtain a

Community Association Manager License (CAM License) from the Florida

Department of Business an d Professional Regulation . Mr. Chew submitted an

online application in which he was required to answer a number of questions ,

including the following:

2. Are you or have you ever been a defendant in

civil litigation in this or any other state … in which

th e basis of the complaint against you was alleged

negligence, fraudulent or dishonest dealing, foreclosure, bankruptcy, or breach of fiduciary duty

related to the practice or profession for which you

are applying, or is there any such case or investigation pending.

9 . Mr. Chew a nswered " No " to this question.

10 . On May 2, 2018, the Association promoted Mr. Chew to the

Administrative Services Manager (ASM) position, which reported directly to

the General Manager, Timothy Day . Along with this promotion, Mr. Chew

received a salary increase.

11 . In the ASM position, Mr. Chew handled a variety of issues and

considered himself the General Manager's " right hand man. " Mr. Chew did

very well in this position and was well liked by the Board, Mr. Day, and the

Associa tion staff.

12 . In August 2018, Mr. Day announced that he would be resigning from

the Association and recommended Mr. Chew for General Manager position.

13 . On August 30, 2018, the Board voted unanimously to appoint

Mr. Chew as the Interim General Manage r.

1 4 . The credible testimony at the hearing established that at this point

the Board believed a final decision would be made for the permanent General Manager position after more extensive background checks were conducted on

Mr. Chew. Meanwhile, Mr. Chew would serve in an interim capacity.

15 . Later on August 30 , Mr. Day informed Mr. Chew that he had received

information that there was judgment for embezzlement against Mr. Chew in

an action brought by t he Attorney General for the State of Illinois . Mr. C hew

explained that the suit was not against him personal ly, but against a

corporation.

16 . On September 4, 2018, Mr. Day informed Mr. Chew that he was being

placed on paid administrative leave pending an investigation into the Illinois

litigation .

17 . On September 19, 2018, the Association's attorney sent Mr. Chew a

letter of termination.

D ISCRIMINATORY A CTS

18 . Mr. Chew testified that his a ccounting co - workers made racial

comments that made him feel uncomfortable while he was working as a staff

account an t. As described by Mr. Chew, these remarks were made while he

was working under Ms. Gibbs, prior to May 2018. Mr. Chew 's co - worker, Joan

Farus, confirmed that Ms. Gibbs ( Ms. Farus's and Mr. Chew's supervisor)

and other employees talk ed about " black people " in a derogatory way around

Mr. C hew. 3 The undersigned finds that Petitioner established that he was

subject to disc riminatory comments by staff prior to Mr. Chew becoming an

ASM.

19 . Mr. Chew also asserts that he was treated less favorably by the Board

t han the white employees. Mr. Chew presented little, if any, evidence of how

he was treated less favorably by the Board . To the contrary, b ased on the

testimony at the hearing by the Board members and staff, it was clear that

Mr. Chew was well liked; the Bo ard promot ed him and provided him with

bonuses and pay raises. The fact that the Board unanimously approved him

for the Interim General Manager position on August 30, 2018, leads to the

conclusion that the Board did not have any racial animus toward Mr. Ch ew .

20 . Although the Association has an Equal Opportunity Employer and

Non - Harassment Policy, there is nothing in its Employee Handbook

3 Ms. Farus was terminated by the Association in August 2018.

specifically prohibiting discrim inatory conduct based on race. The Handbook

indicates employees " deserve to be treated w ith respect and courtesy. " It also

states it is company policy that the " workplace be free of tensions involving

matters which do not relate to our business " such as " ethnic, religious, or

sexual remarks, " but stops short of explicitly prohibiting racism o r racist

comments.

21 . The Handbook does urge an employee who feels harassed to notify a

supervisor or the Human Resources department. It also provides that any

grievances regarding the job, working conditions , or problems with another

employee be submitte d to the employee's immediate supervisor in writing.

22 . There is no credible evidence Mr. Chew ever submitted a written

complaint to his supervisor, Human Resources, or anyone else at the

Association regarding the racist comments.

M R . C HEW ' S B ACKGROUND H ISTORY

23 . After the Board appointed Mr. Chew as the Interim General Manager,

Kathy Miske, a white fem ale who lived in an Association condominium ,

researched Mr. Chew 's background. 4 Ms. Miske previously performed

background checks for a law firm in Chicago before she moved to a

condominium in the Association. She researched Mr. Chew because she had a

" habit of checking on people , " and she had been approached by a

condominium resident, Debbie Combs, also a white femal e , who was

suspicious of Mr. Chew . The re ason for Ms. Comb s 's suspicion was not

disclosed at the hearing .

24 . Ms. Miske discovered that the Attorney General of Illinois had filed a

" Verified Complaint for an Injunction, an Accounting, Surcharge, and Other

Equitable Relief " (Complaint) against Mr . Chew personally in May 2013. The

Complaint essentially described an embezzlement scheme, and specifically

accused Mr. Chew of abusing a position of trust while employed at Marcy -

4 Although she later became a B oard member, at the time she researched Mr. Chew she was

not.

Newbury Association, Inc. (MNA). It alleged Mr. Chew had misappropriated

fun ds, in violation of the Illinois Charitable Trust Act. Although not a

criminal prosecution, the Illinois Attorney General sought injunctive relief,

civil damages, punitive damages, and civil penalties against Mr. Chew.

25 . Ms. Miske also discovered an Orde r of Final Judgment (Final

Judgment) had been entered against Mr. Chew in the Illinois case on

September 9, 2013. The Final Judgement se ems to be a default judgment. As

a result, Mr. Chew was enjoined from serving as a charitable trustee, was

ordered to pa y $ 205,372 in damages , and was also require d to pay interest

and investigative costs.

26 . Although Mr. Chew had a plausible explanation as to the

circumstances surrounding the Illinois case , there was no evidence that the

Final Judgment had been appealed, withdrawn, reversed, or nullified in any

way.

27 . Mr. Chew admitted he did not notify the Association of the Final

Judgment and that he did not list MNA o n the resume he provided to the

Association.

28 . Ms . Miske made copies of the Complaint and Final J ud gment against

Mr. Chew. She distributed the copies to three of the Board members that she

knew personally. Eventually , copies were provided to the President of the

Board, Mr. Day, and the Board's attorney.

29 . The Association was required by law to maint ain a bond to cover its

employees , including the General Manager . 5 The Board members testified

they were concerned that the Final Judgment would affect the Association's

ability to o btain the proper bond if Mr. Chew became General Man a ger.

30 . The Board me mbers relied on the Association's attorney 's advice

regarding the Association's ability to obtain a bond and the attorney's

recommendation to terminate Petitioner based on the Complaint and Final

Judgment.

31 . Mr. Chew claims that he was discriminated aga inst because he was

not given an opportunity to explain the Final Judgement or underlying facts

to the Board. In comparison, he claims Mr. Day was given an opportunity to

explain a criminal investigation against him and was hired despite the

investigation. Mr. Day had previously been involved in the local government,

but the nature of the investigation or the outcome of that investigation was

not established at the hearing.

32 . Mr. Chew had a Final Judgment against him by the Illin ois Attorney

General for what essentially amounted to embezzlement. In contrast,

Mr. Day was only under investigation; there was no evidence he was f ound

guilty of anything . Moreover, Mr. Chew failed to disclose a former employer,

MNA. There is no proof that Mr. Day tried to hide that he had been under

investigation or that he hid his employment by a previous employer.

5 Section 718.111(11)(h) , Florida Statues, states :

(11) INSURANCE.

* * *

(h) The association shall maintain insurance or fidelity

bonding of all persons who control or disburse funds of the

association. The insurance policy or fidelity bond must cover

the maximum funds that will be in the custody of the a ssociation or its management agent at any one time. As used

in this paragraph, the term " persons who control or disburse

funds of the association " includes, but is not limited to, those

individuals authorized to sign checks on behalf of the

association, an d the president, secretary, a nd treasurer of the

association .

C ONCLUSIONS OF L AW

33 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this cause pursuant to sections 120.569 ,

120.57(1), and 760.11(7), Florida Statutes. See Fla. Admin. Code

R. 60Y - 4.016.

34 . Pursuant to section 760.10(1)(a), it is an unlawful employment

practice for an employer to " discharge or to fail or refuse to hire any

individual, or otherwise to discrim inate against any individual with respect

to compensation, terms, conditions, or privileges of employment, because of such individual ' s race, color, religion, sex, pregnancy, national origin, age,

handicap, or marital status. "

6

35 . Mr . Chew relies on circu mstantial evidence of discriminatory intent to

prove h is discrimination claim. Using the shifting burden of proof pattern

established in McDonnell Douglas Corp oration v. Green , 411 U.S. 792 (1973),

first, Petitioner has the burden of proving a prima facie case of

discrimination. Second, if Petitioner meet this initial burden , the burden

shifts to Respondent to " articulate some legitimate, nondiscriminatory

reason " for its action. Third, if Respondent satisfies this burden, Petitioner

has the opportunity to prove that the legitimate reasons asserted by Respondent are really a pretext. See Valenzuela , 18 So. 3d at 22 .

36 . Every stage of this burden shifting analysis must be establish ed by a

preponderance of the evidence. Id. ; see also § 120.57(1)(j), Fla. Sta t.

( " Findings of fact shall be based upon a preponderance of the evidence, except

in penal or licensure proceedings or except as otherwise provided by statute

and shall be based exclusively on the evidence of record and on mat ters

officially recognized.").

6 Florida courts have held that because the FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended, federal case law dealing with Title VII is applicable. See,

e.g., Valenzuela v. GlobeGround N. Am. , LLC, 18 So. 3d 17, 21 - 22 (Fla. 3d DCA

2009)(gender); Thompson v. Baptist Hosp. of Miami, Inc ., 279 F. App ' x 884, 888 n.5 (11th Cir.

2008) ( race).

T IME - B ARRED A LLEGATIONS

37 . In his hearing testimony and proposed recommended order, Petitioner

alleges a panoply of wrongs by the Association ag ainst him because he is

African American. As determined above, Mr. Chew has only proved that he

was subject to racist remarks made by co - workers while he was a staff

accountant.

38 . T he FCRA requires that a charge of discrimination be filed w ithin

365 days of the alleged discrimination. § 760.11(1) , Fla. Stat. " A claim is time

barred if not filed within these time limits. " Nat'l R.R. Passenger Corp. v.

Morgan , 536 U.S. 101, 109 (2002); Van Hoek v. McKesson Corp., 2020 WL

533940, at *4 (M.D. Fla. Feb. 3, 2020) . In Morgan , the Supreme Court

explained that discriminatory acts are not actionable if time barred, even

wh en they are related to acts alleged in timely filed charges. " Each discrete

discriminatory act starts a new clock for filing charges alleging that act. "

Morgan , 536 U.S. at 113 . Discrete acts are " easy to identify " and include

termination, failure to promo te, discipline, denial of transfer, or refusal to

hire. Id. at 114 . " The existence of past acts and the employee’s prior

knowledge of their occurrence, however, does not bar employees from filing

charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely

filed. " Id. at 1 13 .

39 . Ultimately, Mr. Chew can only file charges to cover discrete acts that

"occurred" within the appropriate time period. Id. Here, the racist commen ts

made by staff occurred befo re he was promoted in May 2018. Petitioner filed

his complaint with FCHR on September 16, 2019. Therefore , any

discrimination that o ccurred prior to September 16, 2018 , is time barred, and

is untimely. As such , it is unnecessa ry to determine if thes e comments rise to

the level o f racial har assment so as to constitute a hostile work environment ,

or whether Petitioner was required to report them at the time they occurred.

D ISPARATE T REATMENT

40 . Mr. Chew points to the fact he w as treated differently than Mr. Day, a

white male, as evidence of discrimination. This " disparate treatment " claim is

the most easily understood type of discrimination. See Schultz v. Royal

Caribbean Cruises, Ltd. , 465 F.Supp.3d 1232 , at 1261 (S.D. Fla. 20 20).

Disparate treatment occurs when an employer treats an employee less

favorably than others because of his or her race, color, religion, sex, or

national origin. Id. To establish a case of disparate treatment, Mr. Chew

must demonstrate that he:

(1) belo ng ed to a protected class;

(2) suffered an adverse employment action;

(3) was qualified to do h is job; and

(4) was treated less favorably than similarly

situated employees outside of the protected class.

See Alvarez v. Lakeland Area Mass Transit Dist., 2020 WL 3473286, at *10

(M.D. Fla. June 25, 2020).

41 . There is no dis pute as to the first element: Mr . Chew is African

American . Regar ding the second element, Mr. Chew suffered an adverse

action when he was terminated and the Interim General Manager posit ion

was rescinded.

42. Petitioner has not provided sufficient evidence that he was qualified

for the position of General Manager. First, th e CMA L icense he received was

based on false information . H e failed to disclose that he had been a defendant

in civi l litigation alleging dishonest dealing. It is questionable whether

Mr. Chew could have been qualified for the General Manage r position

without a CMA License. Second, there was sufficient evidence to show that

the Final Judgment against Mr. Chew would risk the Association's ability to

acquire the necessary bond. Therefore, t he Association would not be abl e

place him permanent ly in the G eneral Manger p osition.

43 . Even if he did meet the requirements to serve in the General Manager

position, he cannot point to a similarly situated non - African American to

meet the fourth " comparator " element of a disparate treatm ent claim.

Petitioner must show he is similarly situated in all relevant respects to

Mr. Day, the employee he claims the Board gave preferential treat ment. See

Woods v. Cent. Fellowship Christian Acad. , 545 F. App ' x 939, 945 (11th Cir.

2013). More specifically, to be valid comparators for disparate discipline, such

as termination, they must have " engaged in the same conduct without such

differentiating or mitigating circumstances that would distinguish their

conduct or the employer ' s treatment of them for it. " Sanguinetti v. United

Parcel Serv., Inc. , 114 F. Supp. 2d 1313, 1317 (S.D. Fla. 2000).

44 . As recently explained in Mac Papers, Inc. v. Boyd , 2020 WL 6110622,

at *2 (Fla. 1st DCA Oct. 16, 2020) :

Picking a single comparator with inadequate,

irrelevant, or superficial similarities falls short of

what the law requires. Courts require that comparators be meaningful, which explains why

the Eleventh Circu it — which reviewed the

oftentimes discordant caselaw on the topic —

recently decided en banc that comparators must be " similarly sit uated in all material respects. " Lewis

v. City of Union City, Georgia , 918 F.3d 1213, 1218

(11th Cir. 2019) (rejecting " nearly - identical

standard " as too rigid and rejecting " not useless " as

too lax).

* * *

With Lewis and its progeny as our guideposts,

Swift fails as a valid compar ator. Consistent with

Lewis , a " comparator's misconduct must be similar

in all material respects. " McPhie v. Yeager , 819

Fed.Appx. 696, 698 – 99 (11th Cir. 2020) (applying

Lewis ).

45 . Here, as explained above, Mr. Day and Mr. Chew were not similar in

all material aspects. Mr. Day was under investigation, whereas Mr. Chew

had a Final Judgment for embezzlem ent entered against him. As such,

Mr. Chew has failed to prove the fourth element necessary to his disparate

treatment claim: that a similarly - situated non - African American employee

was treated better than he was treated.

A SSOCIATION ' S R EASON F OR T ERMINATI ON

46 . Regardless, even if Mr. Chew could meet h is initial burden of

e stablishing a prima facie race discrimination claim under McDonnell

Douglas , the burden would shift to the Association to provide a legitimate

non - discriminatory reason for Mr. Chew's te rmination and the rescission of

the Interim General Manager position . The employer ' s burden, at this stage,

is an " exceedingly light " one of production, not persuasion, which means the

employer " need only produce evidence that could allow a rational fact f inder

to conclude that [the employee ' s] discharge was not made for a discriminatory

reason. " Schultz , 2020 WL 3035233, at *28.

47 . The Association has met this burden. Given that it is required to carry

a bond to cover its employees, and that bond was in j eopardy given the Final

Judgment against Mr. Chew , any reasonable condominium association in the

same position would have withdrawn consideration of Mr. Chew for the

General Manager position. Further, the fact that he did not disclose his

employment with M NA is sufficient to terminate him from any p osition.

P RETEXT

48 . Having met its burden of producing a legitimate non - discriminatory

reason for h is termination, the burden would then shift back to Mr. Chew to

establish this reason was a pret ext. To show p retext, Petitioner must identify

" weaknesses, inconsistencies, or contradictions in the Association ' s

articulated legitimate reasons for its action so that a reasonable factfinder

would find them unworthy of credence. " Alvarez v. Royal Atl. Developers, Inc . ,

610 F.3 d 1253, 1265 (11th Cir. 2010).

49 . M r . Chew could meet this burden by presenting ev idence that

employees outside his protected class were involved " in acts of comparable

seriousness [but] were nevertheless retained . " See McDonnell Douglas , 411

U .S. at 804 – 05. Ultimately, he would need to show the Association's proffered

reason for terminating him wa s a pretext because it (1) should not be

believed, or (2) when c onsidering all the evidence, it is more likely that the

discriminatory reason motivate d the decision than the employer ' s proffered

reason. See Bielawski v. Davis Roberts Boeller & Rife, P.A. , 2020 WL

2838811, at *5, n.4 (M.D. Fla. June 1, 2020).

50 . Again , Mr. Chew has failed to provide sufficient evidence for the

undersigned to find that t he proffered reason for h is termination ( the Illinois

C omplaint and Final Judgment against him and the impact on the

Association's ability to be properly bonded ) was a pretext.

51. Ultimately, Mr. Chew failed to prove he was terminated because of his

race .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f Law, it is

R ECOMMENDED that the Florida Commiss ion on Human Relations enter a

final order dismissing Donald Chew's Petition for Relief.

D ONE A ND E NTERED this 18th day of Novem ber , 2020 , in Tallahassee,

Leon County, Florida.

H ETAL D ESAI

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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of November, 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(e Served)

Donald Chew

1262 Northeast 41st Terrace Avenue

Cape Coral, Florida 33909

(eServed)

Christina Harris Schwinn, Esquire

Pavese Law Firm

1833 Hendry Street

Post Office Drawer 1507

Fort Myers, Florida 33901

(eServed)

Vanessa Fernandez, Esquire

Pave se Law Firm

1833 Hendry Street

Fort Myers, Florida 33901

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All part ies 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.