22-000729 Horace Barnes vs. Jts Enterprises Of Tampa, Ltd., D/B/A Caspers Company, A/K/A Mcdonald's Store No. 5470 Status: Closed Recommended Order on Monday, July 25, 2022.

Summary: Petitioner failed to prove that he was subjected to unlawful discrimination based on his race.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

H ORACE B ARNES ,

Petitioner ,

vs. Case No. 22 - 0729

JTS E NTERPRISES OF T AMPA , L TD ., D/B/A

C ASPERS C OMPANY , A/K/A M CDONALD ' S

S TORE N O . 5470 ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH), on May 11, 2022, in Tampa, Florida.

A PPEARANCE S

For Petitioner: Horace Barnes , pro se

Apartment 4

5544 Terrace Court

Tampa, Florida 33617

For Respondent: Kevin D. Johnson, Esquire

Colby Ellis, Esquire

Johnson Jackson LLC

100 North Tampa Street , Suite 2310

T ampa, Florida 33602

S TATEMENT OF T HE I SSUE

The issue in this case is whether JTS Enterprises of Tampa, Ltd., d/b/a

Caspers Company, a/k/a McDonald ' s Store No. 5470 (Respondent),

discriminated against Horace Barnes (Petitioner), on the basis of his race, in

violation of the Florida Civil Rights Act (FCRA).

P RELIMINARY S TATEMENT

On August 6, 2021 , Petitioner filed a Public Accommodation Complaint of

Discrimination (Complaint) with the Florida Commission on Human

Relations (Commission) , alleging that he was the victim of discrimination on

the basis of sex . On February 4, 2022 , the Commission notified Petitioner

that no reasonable cause existed to believe that Respondent committed

unlawful discrimination on the basis of sex .

On March 8, 2022 , Petitioner filed a Petition for Relief with the

Commission in which he alleged that Respondent committed a discriminatory

public accommodation practice on the basis of his race, not sex, as indicated

in the Complaint . The Commission transmitted the Petition for Relief to

DOAH to conduct a chapter 120 evidentiary hearing.

At the final hearing, the undersigned sought clarification from Petitioner

regarding the basis for his claim Ð that is, whether his claim was based on sex

or race discrimination. Petitioner made clear that his C omplaint was solely

based on race discrimination, as can be seen in the quote from the final

hearing T ranscript below:

JUDGE LIVINGSTONE: Okay. All right. One

second. All right. Mr. Barnes, I reviewed all the

documents. Well, not all the documents. Ag ain, I

am not the Florida Commission on Human

Relations, so I don ' t have all the information that

you may have provided to them when they were

investigating your claim. But I saw that you filed a

public complaint of -- or a complaint of public

accommodatio ns discrimination, and you also filed

a petition for relief. In your notes, I noticed a claim

of sex discrimination and race discrimination. Do

you intend to proceed today to try to prove both of

those claims, or just one?

MR. BARNES: Oh, no. Well, reall y -- Judge --

talking about the investigator was the one wrote

the report. You know, I ain ' t never tell him about

no sex, nothing about that. You know, I just filed a

complaint. I got all my documents right here to

show that it is not a sexual complaint.

JUDGE LIVINGSTONE: Okay. So, are you saying

today that your complaint of discrimination is

based solely on race? So only on your race?

MR. BARNES: Yes.

JUDGE LIVINGSTONE: Okay. So not sex

discrimination, only discrimination based on your

race?

MR. B ARNES: Yes.

At the final hearing, the parties ' Joint Exhibit 1 was admitted into

evidence. Petitioner testified on his own behalf and called James Walker

(Mr. Walker) as a witness. Petitioner ' s E xhibits 1 through 8 were admitted

into evidence. Respondent called Michelle Canty (Ms. Canty) , Laquan Jerger,

Nyris Lily Perez, and Rebecca Boamah as witnesses.

At the close of the hearing, the parties requested a 20 - day timeframe

following DOAH ' s receipt of the hearing transcript to file post - hearing

submittals. 1 On June 14, 2022 , the one - volume Transcript of the final hearing

was filed with DOAH. Respondent timely submitted a Proposed

Recommended Order, which was duly considered in preparing this

Recommended Order. Petitioner did not submit a post - hearing submit tal.

All statutory references are to the 202 1 version of the Florida Statutes.

Relevant provisions of chapter 760, Florida Statutes, have been unchanged

since 2015, prior to any alleged discriminatory acts .

1 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

F INDINGS OF F ACT

1. Petitioner is a black man w ho lives in Tampa, Florida.

2. Respondent owns and operates several McDonald ' s franchises in the

Tampa, Florida area , including a restaurant located at 2006 50th Street , in

Tampa, that is known as the " Broadway " location .

3 . Petitioner has visited the Bro adway McDonald ' s to purchase food on

several occasions.

4. On or about May 22, 2021, at approximately 6:00 a.m., Petitioner drove

to the Broadway McDonald ' s drive - through to purchase breakfast with his

friend, Mr. Walker. Petitioner drove the vehicle; Mr. Walker sat in the

passenger seat.

5. When a customer ' s vehicle is stopped at the Broadway McDonald ' s

drive - through speaker box to place an order, the restaurant employee taking

the order cannot see the driver . There is no continuous video feed available

th at would allow the order taker to see the customer.

6 . The drive - through has a camera that takes still - image pictures of the

side s of cars coming through the drive - through lanes. The pictures taken are

of the side, roof, and hood of the vehicle coming thr ough the drive - through.

7. The purpose of the pictures is to allow the employees working in the

drive - through windows to match orders with the vehicles . The driver cannot

be viewed from the still - image picture.

8 . Petitioner testified that when he pulled into the drive - through to place

his order, an employee s aid " s hut up, sissy , " through the drive - through ' s two -

way speaker box, before he was even able to begin to place his order.

9. Petitioner testified that he parked and entered the lobby with

Mr. Walke r and asked to speak to the manager. Petitioner claims that

thereafter, an employee approached the front counter and said " I ' m the one

called you a sissy , " and " y ou need to get out my store, drunk . "

10. Petitioner testified that the employee who called hi m a drunk and a

sissy was Ms. Canty .

11. Mr. Walker testified that he and Petitioner left the store and called

the polic e, but the police declined to respond because of C OVID - 19

restrictions.

12. Ms. Canty is a black woman. She has been employed by Respond ent

for approximately ten years and has worked at the Broadway location for

approximately five years. She currently serves as the guest services manager .

13. As the guest services manager, Ms. Canty is responsible for resolving

customer complaints and tra ining other employees on how to provide good

customer service , in addition to other tasks.

14. Ms. Canty denied calling Petitioner a drunk or a sissy and denied

interacting with him, at all, on May 22 , 2021 . She denied ever seeing or

interacting with Peti tioner, prior to the day of the hearing.

15. At hearing, the undersigned had the opportunity to observe the

testimony and demeanor of Petitioner and Ms. Canty . The testimony of

Ms. Canty is credited and is more persuasive than the testimony of

Petitioner , which was not credible or persuasive .

16. The undersigned finds that Ms. Canty did not call Petitioner a drunk

or a sissy.

17 . Based on Petitioner ' s version of events, a McDonald ' s employee called

him a sissy before seeing or speaking to him, as Petitio ner was not visible to

McDonald ' s employees prior to the initial alleged " sissy " comment.

18 . Assuming arguendo, that a McDonald ' s employee did call Petitioner a

sissy, the employee did so before knowing Petitioner ' s race.

19. Petitioner failed to meet h is burden of proving that Respondent

committed an unlawful discriminatory practice against him in violation of the

FCRA .

C ONCLUSIONS OF L AW

20. DOAH 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 also Fla. Admin. Code R. 60Y - 4.016.

21 . Section 760.11(7) permits a party for whom the Commission

determines that there is no reasonable cause to believe that a violation of the

FCRA has occurred to request an a dministrative hearing before DOAH.

Following an administrative hearing, if the Administrative Law Judge (ALJ)

finds that a discriminatory act has occurred, the ALJ " shall issue an

appropriate recommended order to the commission prohibiting the practice

and recommending affirmative relief from the effects of the practice,

including back pay. " § 760.11(7), Fla. Stat.

22. Petitioner alleges Respondent discriminated against him, based on his

race , in violation of the FCRA.

2 3 . The burden of proof in an administ rative proceeding, absent a

statutory directive to the contrary, is on the party asserting the affirmative of

the issue. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981);

see also Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996). The standard of proof is

p reponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

24 . The FCRA prohibits discrimination in places of " public

accom modation , " based on race. See § 760.08, Fla. Stat.

2 5 . It is undisputed that Respondent is a " public accommodation " as

defined by section 760.02(11)(b).

26 . The FCRA is patterned after Title VII of the Civil Rights Act of 1964,

as amended. Accordingly, Florida courts hold that federal decisions

construin g Title VII are applicable when considering claims under the FCRA.

Harper v. Blockbuster Entm ' t Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998);

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

2009); and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

2 7 . Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela , 18 So. 3d at 22. Direct evidence is evidence that, if

believed, would prove the existence of discriminatory intent behin d the

employment decision without any inference or presumption. Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno ,

115 F.3d 1555, 1561 (11th Cir. 1997). " [D]irect evidence is composed of ' only

the most blatant remar ks, whose intent could be nothing other than to

discriminate ' on the basis of some impermissible factor. " Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

28 . Petitioner presented no direct evidence of discrimination. Similarly,

the record in this proceeding contains no statistical evidence of

discrimination by Respondent .

29 . Instead, Petitioner relies on circumstantial evidence of discrimination

to prove h is case. See Lindsey v. SLT Los Angeles, LLC , 447 F.3d 1138, 1140 -

41 (9th Cir. 2006) (n oting that, while direct evidence of racial

discrimination could support a finding of discriminatory intent, it is not

required, and circumstantial evidence alone may be sufficient).

30 . Claims of discrimination in public accommodations under the FCRA ,

re lying on circumstantial evidence , apply the same prima facie standards and

burden of proof as employment discrimination claims under Title VII and the

FCRA. See LaRoche v. Denny ' s, Inc. , 62 F. Supp. 2d 1366, 1368, 1370 (S.D.

Fla. 1999) (finding public acco mmodation claims under the FCRA have " the

same prima facie standards and burdens of proof as do employment

discrimination claims under Title VII. " ); see also Solomon v. Waffle House,

Inc. , 365 F. Supp. 2d 1312, 1331 (N.D. Ga. 2004).

31 . As such , in public accommodation discrimination cases, Florida courts

follow the three - part, burden - shifting framework set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973).

32 . Under the McDonnell Douglas framework, Petitioner bears the initial

burden of estab lishing a prima facie case of unlawful discrimination based on

his race . If this burden is met, Respondent ha s the burden of articulating a

legitimate non - discriminatory basis for its action.

33 . If Respondent satisf ies its burden, Petitioner must then pr ove that the

legitimate reason asserted by Respondent is a mere pretext for unlawful

discrimination. Savanna Club Worship Serv. v. Savanna Club Homeowners '

Ass ' n , 456 F. Supp. 2d 1223, 1231 (S.D. Fla. 2005).

34. To establish a prima facie case of public ac commodation

discrimination, Petitioner must demonstrate that he: (1) is a member of a

protected class; (2) attempted to afford himself the full benefits and

enjoyment of a public accommodation; (3) was denied the full benefit or

enjoyment of a public accom modation; and (4) such services were available to

similarly situated persons outside his protected class who received full

benefits or who were treated better. Laroche , 62 F. Supp. 2d at 1382; see also

Solomon , 365 F. Supp. 2d at 1331.

35 . Respondent conc edes that Petitioner, a black man, is a member of a

protected class. Petitioner proved that he attempted to patronize

Respondent ' s establishment in May 2021 when he visited to purchase

breakfast. Petitioner failed to prove all other elements of the prima f acie case.

36. Petitioner failed to present any persuasive or credible evidence to find

that Ms. Canty (or any other employee of Respondent) called him a sissy

while he attempted to order through the drive - through. Further, he failed to

prove that Ms. Can ty called him a sissy and a drunk , when he later entered

the restaurant's lobby .

37. Most importantly, even if called a sissy or drunk (alleged facts which

he did not prove), Petitioner also failed to provide any evidence to support the

allegation that it occurred because of his race.

38 . Because Petitioner failed to establish a prima facie case under the

McDonnell Douglas framework , the claim fails and no analysis regarding

pretext is required .

39. Petitioner failed to prove that he was subjected to publ ic

accommodation discrimination ; and, as such, his Petition for Relief must be

dismissed.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order dismissing Petitioner ' s Petition for Relief.

D ONE A ND E NTERED this 25th day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Horac e Barnes

Florida Commission on Human Relations Apartment 4

4075 Esplanade Way , Room 110 5544 Terrace Court

Tallahassee, Florida 3239 9 - 7020 Tampa, Florida 33617

Kevin D. Johnson, Esquire Colby Ellis, Esquire

Johnson Jackson , LLC Johnson Jackson , LLC

100 North Tampa Street , Suite 2310 100 North Tampa Street , Suite 2310

Tampa, Florida 33602 Tampa, Florida 33602

Mary Ellen Clark , Chief Legal Counsel l Henry Graham, Attorney Supervisor

Florida Commission on Human Relations Florida Commission on Human Relations

4075 Esplanade Way, Room 110 4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.