The Penis Pancake

From Florida Administrative Law Judge Gary Early’s Oct. 31 recommended order in Turnage v. Bob Evans Restaurant, LLC, considering the question “Whether Respondent discriminated against Petitioner in a place of public accommodation due to his race or sex through an act of sexual harassment in violation of section 760.08, Florida Statutes”:

On January 3, 2024, Petitioner, through his counsel, Bernard R. Mazaheri, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) alleging that Respondent, Bob Evans Restaurant, LLC, discriminated against him by serving him a pancake “shaped into a penis and balls.” {A photograph of the pancake was included in the Charge of Discrimination. Unless Petitioner was advised that it was intended to depict a penis, it could just as easily be a pancake-based representation of an elephant, or when viewed from a different angle, the capitol building of the state of Florida.} …

Petitioner, through his counsel, chose to invoke the jurisdiction of DOAH to contest the decision by FCHR that being served a pancake allegedly in the shape of a penis did not rise to an actionable case of discrimination. Respondent joined the fray by having its counsel make an appearance as a qualified representative.

One might conclude that two attorneys, both presumably bound by canons of professional conduct, would pay attention to a notice setting a hearing in a case they brought or participated in. Here, that did not occur. Instead, the parties, and their counsel, decided it to be appropriate to ignore the hearing, thus wasting the time of the presiding Administrative Law Judge and the court reporter, and allowing the taxpayer dollars used to pay both to be wasted. Despite having knowledge of these proceedings, the parties, through their counsel, failed to comply with the Notice of Hearing or the Order of Pre-Hearing Instructions, and failed to appear at the final hearing.

Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made that Bob Evans Restaurant engaged in any discriminatory conduct….

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