02-001901 Modesto A. Torres vs. Winn Dixie Stores, Inc. Status: Closed Recommended Order on Friday, August 30, 2002.

Summary: Petitioner failed to prove that Respondent had unlawfully discriminated against him in connection with the termination of Petitioner`s employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MODESTO A. TORRES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1901

)

WINN DIXIE STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having b een provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings conducted a formal hearing of this

matter in Miami, Florida, on August 1, 2002.

APPEARANCES

For Petitioner: Modesto A. Torres, pro se

25302 Southwest 127th Place

Miami, Florida 33032

For Respondent: Maria H. Ruiz, Esquire

799 Brickell Plaza, Suite 900

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whethe r Respondent unlawfully

discriminated against Petitioner in connection with Petitioner’s

employment by Respondent on the basis of his national origin.

PRELIMINARY STATEMENT

On June 25, 2001, Petitioner Modesto A. Torres (“Torres”),

filed a handwritten charge of discrimination with the Florida

Commission on Human Relations (“FCHR”) that accused his former

employer, Respondent Winn - Dixie Stores, Inc. (“Winn - Dixie”), of

having terminated his employment as a bagger because of his

national origin. Torres fi led an Amended Charge of

Discrimination with the FCHR on August 13, 2001, in which he

made essentially the same allegations.

The FCHR investigated Torres’s claim and, on March 29,

2002, issued a letter stating that it could find no reasonable

cause to beli eve that an unlawful employment practice had

occurred. Thereafter, Torres timely filed a Petition for Relief

with the FCHR contending that Winn - Dixie had discriminated

against him and some co - workers because they were of Puerto

Rican descent. On May 7, 2 002, the FCHR transferred the matter

to the Division of Administrative Hearings (“DOAH”) for further

proceedings, and an administrative law judge (“ALJ”) was

assigned to the case. The ALJ scheduled a final hearing for

August 1, 2002, at 9:00 a.m. in Miami , Florida.

At the final hearing, Torres testified on his own behalf

and called one witness, a Winn - Dixie employee named Louis F.

Haza. Torres offered no exhibits. During its case, Winn - Dixie

presented the testimony of Mr. Haza (who is an assistant store

manager) and also called Steven H. Hollingsworth, a human

resources manager for Winn - Dixie. Winn - Dixie offered exhibits

numbered 1 through 5 into evidence, and the undersigned received

one additional document (Torres’s June 25, 2001, charge of

discriminat ion) as DOAH Exhibit 1.

The final hearing transcript was filed with DOAH on

August 14, 2002. Pursuant to instructions given at the

conclusion of the final hearing, the parties’ respective

proposed recommended orders were due to be filed on August 22,

200 2. Winn - Dixie timely filed a proposed recommended order.

FINDINGS OF FACT

The evidence adduced at final hearing established the facts

that follow.

1. In May 1999, W inn - Dixie hired Torres to work as a

bagger in one of its grocery stores. Until the event that

precipitated his termination in July 2000, Torres’s job

performance was generally satisfactory, although he was formally

reprimanded at least once, in December 1999, for

insubordination.

2. Torres was at work bagging groceries on July 14, 200 0.

The store was crowded that day, and the lines were long at the

cash registers. A customer checking out in one line asked

Torres —— who was stationed at another lane —— to bag his groceries.

Torres refused, and the man (according to Torres) called Torres

an “asshole.” Torres retorted, “You’re the asshole.” (At

hearing, Torres admitted using the epithet in front of “a whole

line” of customers but explained —— in effect —— that, since his

antagonist had used the word first, the man had it coming.)

3. Hav ing thus offended one another, the two men —— Torres

and the customer —— engaged in a loud shouting match. The

assistant store manager, who was in the parking lot outside when

this verbal altercation began, was called inside to restore calm

and order. Taking charge, he separated the disputants,

apologized to the customer (who was a regular shopper at that

store), and sent Torres home to cool off.

4. When Torres reported for work the next day, he was

fired. He complained, then as now, that Winn - Dixie’s decis ion

was the result of his Puerto Rican origin. His supervisors,

however, claimed —— then as now —— that the cause of Torres’s firing

was his profanity - laced row with a customer, which had occurred

in front of other customers.

Ultimate Factual Determinations

5. Winn - Dixie fired Torres, not because of his national

origin, race, or ethnicity, but because Torres quarreled with a

customer —— angrily and loudly —— before other customers. This is a

legitimate reason for a grocery store to discharge a bagger.

6. Ther e is no credible, competent evidence that Winn -

Dixie tolerated similar behavior in non - Hispanic (or non - Puerto

Rican or non - minority) employees.

7. The evidence does not support a finding that Winn - Dixie

feigned disapproval of Torres’s dustup with a shop per as a

pretext for discrimination.

8. In short, Winn - Dixie did not discriminate unlawfully

against Torres.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Secti ons 120.569 and 120.57(1), Florida Statutes.

10. It is unlawful for an employer to discharge or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee’s race, gender, or national origin.

Section 760.10(1)(a), Florida Statutes.

11. Federal discrimination law may properly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of

Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

12. In McDonnell Douglas Corp. v. Green , 4ll U.S. 792,

802 - 03 (1973), the Supreme Court of the United States

articulated a burden of proof scheme for cases involving

allegations of discrimination under Title VII, where the

plaintiff relies upon circumstantial evidence. The McDonnell

Douglas decision is persuasive in this case, as is St. Mary’s

Honor Center v. Hicks , 509 U.S. 502, 506 - 07 (1993), in which the

Court reiterated and refined the McDonnell Douglas analysis.

13. Pursuant to this analysis, the plaintiff (Petitioner

here) has the initial burden of establishing by a preponderance

of the evidence a prima facie case of unlawful di scrimination.

Failure to establish a prima facie case of discrimination ends

the inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6

(Fla. 1st DCA), aff’d , 679 So. 2d 1183 (1996)( citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 198 7)).

14. If, however, the plaintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

here) to articulate some legitimate, nondiscriminatory reason

for its complained - of conduct. If the defendant carries this

bu rden of rebutting the plaintiff's prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

true reason but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

15. In Hi cks , the Court stressed that even if the trier of

fact were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. "It is not

enough, in other words, to dis believe the employer; the

factfinder must believe the plaintiff's explanation of

intentional discrimination." Id. at 519.

16. Torr es complains that his termination was motivated by

his national origin. This is a disparate treatment claim. To

present a prima facie case of disparate treatment using the

indirect, burden - shifting method just described, Torres needed

to prove, by a prep onderance of the evidence, that “(1) he

belongs to a racial minority; (2) he was subjected to adverse

job action; (3) his employer treated similarly situated

employees outside his classification more favorably; and (4) he

was qualified to do the job.” Hol ifield v. Reno , 115 F.3d 1555,

1562 (11th Cir. 1997).

17. Torres failed to establish a prima facie case of

unlawful discrimination using circumstantial evidence. He

produced no credible evidence that similarly situated employees

of a different classifi cation (either non - Hispanics specifically

or non - minorities generally) were treated more favorably than

he, as was his burden under McDonnell Douglas . See Campbell v.

Dominick's Finer Foods, Inc. , 85 F. Supp. 2d 866, 872 (N.D. Ill.

2000)( “To establish thi s element, [the claimant] must point to

similarly situated non - [minority] employees who engaged in

similar conduct, but were neither disciplined nor terminated.”).

For this reason alone, Torres’s claim cannot succeed.

18. Torres likewise offered no persu asive direct evidence

sufficient to demonstrate that Winn - Dixie had fired him with a

discriminatory intent. See Denney v. The City of Albany , 247

F.3d 1172, 1182 (11th Cir. 2001); Holifield , 115 F.3d at 1563.

19. Although Torres’s failure to meet his ini tial burden

obviates the need for further analysis, Winn - Dixie, as found

above, proved a legitimate, nondiscriminatory reason for firing

Torres, and Torres failed to demonstrate that the stated ground

for his discharge —— arguing with a customer —— was merely a pretext

for discrimination. These circumstances provide an independent,

alternative —— and equally compelling —— basis for the undersigned’s

recommendation.

20. In view of Torres’s testimony that the customer

provoked him to anger, it should be noted, befo re concluding,

that Torres’s belief that he, himself, was blameless in regard

to the incident —— or even the fact that the customer may have

“started it” —— is irrelevant to the instant discrimination claim.

See Webb v. R&B Holding Co., Inc. , 992 F. Supp. 138 2, 1387 (S.D.

Fla. 1998). What matters is “‘the perception of the decision

maker.’” Id. ( quoting Smith v. Flax , 618 F.2d 1062, 1067 (4th

Cir. 1980)).

21. Here, where the assistant store manager was required

to break up a verbal fight between the employ ee and a customer,

and where the employee admits that he called the customer an

“asshole,” Winn - Dixie reasonably could have concluded that

Torres was at fault and way out of line. Winn - Dixie’s

management acted well within legal boundaries in terminating a n

employee who, even if provoked, should have heeded the maxim,

“the customer is always right,” and refrained from retaliating

in kind. Common sense and everyday experience teach that even a

rude or abusive customer ordinarily should be dealt with

courteo usly; calling him an “asshole” and engaging in a shouting

match in front of other patrons are patently inappropriate

responses.

22. The bottom line is, Winn - Dixie did not discriminate in

this instance: Torres, the record shows, was fired for

legitimate, nondiscriminatory reasons.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Torres’s Petition for Relief.

DONE AND ENTERED this 30th day of August, 2002, in

Talla hassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August, 2002.

COPIES FURNISHED:

Modesto A. Torres

25302 Southwest 127th Plac e

Miami, Florida 33032

Maria H. Ruiz, Esquire

799 Brickell Plaza, Suite 900

Miami, Florida 33131

Denise Crawford

Clerk of the Commission

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ec ommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.