Employee Training on Race Discrimination Is Expensive To Avoid!

ImageCustomer Sues Tampa Taco Bell under Race Discrimination Law

A Florida Appeals Court has reinstated a lawsuit filed by a customer of a Tampa area Taco Bell restaurant after the customer claimed that racial comments were made to him by an employee of the restaurant at the drive-thru window.  After the case was dismissed by a state court judge, the customer appealed and the suit was recently reinstated. A case that could have been prevented with appropriate and consistent employee training on race discrimination.

Some Background:

With law suits on the rise, all Florida businesses who serve the public have potential liability for discriminatory comments made by their employees.  The Florida Civil Rights Act (“FCRA”), passed in 1992, prohibits discrimination in place of public accommodation.  The discrimination prohibited includes race, color, national origin, sex, handicap, familial status, or religion.  The term “public accommodation” in the FCRA covers motels, hotels, gasoline stations, places of entertainment, restaurants, cafeterias, lunch rooms, soda fountains, sports arenas, concert halls and other facilities engaged to selling food for consumption on the premises.

 A Run for the Border

Lamar Maynard, a young African American male went to a Tampa area Taco Bell and ordered through the drive-thru window.  Another African American male friend was with him.  After ordering, Mr. Maynard drove forward to the pick-up window and attempted to change his order by asking for a soft drink for his friend.  Dan Peterson was working at the Taco Bell at the pick-up window and Peterson refused to accept the added soft drink!   Maynard claimed that Peterson made a racially motivated and demeaning comment to Maynard through the window.  Maynard turned off his car’s engine and refused to pull his car out of the drive thru lane, blocking traffic and preventing Taco Bell from doing drive thru business for about 20 minutes.

South of the Border

Inside the restaurant, and unknown to Maynard and his friend, Mr. Peterson pressed a silent alarm button that automatically alerted the Tampa Police.  The police responded to the scene as if a robbery was in progress.  Mr. Maynard suddenly found himself surrounded by Tampa police officers who approached his car with drawn weapons.  While attempting to get out of his car, Maynard claimed that he struck his knee on the steering wheel and while being searched for a weapon, hurt his elbow when it struck the car.  The search of Maynard’s person and his car found no weapons, drugs or other contraband.  Maynard and his friend were then released.

Maynard filed suit under the FCRA claiming that he had been discriminated against by the restaurant in violation of the public accommodation provisions of the FCRA.  A Circuit court in Tampa dismissed the FCRA claims of Maynard on technical reasons claiming that he had not timely filed a Charge of Discrimination as required by the FCRA.

As with a Charge of Discrimination filed by an employee, a customer also has to file a Charge alleging discrimination in public accommodations within one year of the incident.  The incident in this case at the Taco Bell drive-thru happened on April 15, 2007.  On April 8, 2008, Maynard contacted the Florida Commission on Human Relations (FCHR) in Tallahassee and filled out an “initial questionnaire” form for the agency.  Maynard’s formal complaint (the Charge of Discrimination”) was filed with FCHR on April 24, 2008, over a year after the incident.

Taco Bell moved to dismiss Maynard’s Charge of Discrimination claiming that his charge had not been timely filed.  The FCHR, however, determined that Maynard’s Complaint was timely filed relying on an FCHR policy that a Complaint is deemed filed as of the receipt of the Initial Questionnaire form and not the actual Charge of Discrimination.  FCHR processed Maynard’s Complaint and in January of 2009, issued a Notice of Dismissal stating that the Maynard had voluntarily withdrawn his Complaint in favor of filing suit in state court.

Maynard filed suit in state court in Tampa and Taco Bell moved to dismiss his discrimination claim claiming that he had failed to meet the conditions preceded to filing the discrimination suit since he had not timely filed his Charge of Discrimination.  A circuit court in Tampa agreed and dismissed Maynard’s discrimination claim.  On appeal, however, the Second District Court of Appeals disagreed with the trial court and found it had incorrectly dismissed Maynard’s claim for discrimination.  The appeals court looked at the FCHR record in the case and found that the determination of whether a Charge of Discrimination is timely filed rests with the FCHR, and not with a court!

The appeals court found that the Notice of Dismissal issued by the FCHR showed that the agency was satisfied that Maynard had timely filed his initial Charge and that Maynard had sufficiently claimed that he had met the administrative requirements of suing Taco Bell.  The appeals court said it was error for the trial court to go behind Maynard’s law suit to reconsider the FCHR’s treatment of Maynard’s Charge.  Lamar Maynard v. Taco Bell of America, Inc., and Daniel Peterson, Case No. 2D11-5390, Fla. 2nd DCA (May 31, 2013).

Take away:

This decision effectively extends the one year statute of limitations for Florida discrimination cases by from a few weeks, up to several months, as long as a complaining party contacts FCHR and begins the process.  FCHR may find that a Charge of Discrimination has been filed even though the formal Charge is not filed until after the one-year period.  This case will be used by employees to argue that they have more than a year to file a Charge when they have contacted FCHR during the year.

Florida employers who deal with the public should provide training for their employees to avoid racial and discriminatory statements by employees to customers.  Here a customer is suing over the comment of an employee at the drive thru window.  Not only is supervisory training important, but this case shows that employee training is also a good idea for those employers covered by the public accommodate provisions of the FCRA.

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