03-000048 Roberta Trevarthen vs. Wal-Mart Stores, Inc. Status: Closed Recommended Order on Monday, September 22, 2003.

Summary: Petitioner asserted that she was discharged because of her sex, female. The evidence demonstrated that Wal-Mart had a legitimate, nondiscriminatory reason for terminating her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERTA TREVARTHEN, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0048

)

WAL - MART STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

June 18, 2003, in Deland, Florida, and conducted by Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David Glasser, Esquire

Gl asser and Handel

Suite 100, Box N

150 South Palmetto Avenue

Daytona Beach, Florida 32114

For Respondent: Peter R. Corbin, Esquire

Ford & Harrison, LLP

121 West Forsyth Street, Suite 1000

Post Office Box 41566

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent Wal - Mart Stores, Inc. (Wal - Mart) engaged

in an unlawful employme nt practice with respect to Petitioner

Roberta Trevarthen (Msevarthen).

PRELIMINARY STATEMENT

Msevarthen filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commission), on

September 11, 2000. She stated that, bu t for her sex she would

not have been terminated as a loss prevention specialist with

Wal - Mart, on August 3, 1999, and she claimed that, she was

treated less favorably than similarly situated males. On

November 27, 2002, the Commission filed a "Determinat ion: No

Cause" finding that there was no reasonable cause to believe

that an unlawful employment practice had occurred.

Subsequently, Msevarthen filed a Petition for Relief with

the Commission. Thereafter the Commission forwarded the

Petition to the Division of Administrative Hearings for

adjudication and the matter was filed on January 8, 2003.

The matter was set for hearing on April 23, 2003. Pursuant

to a request for a continuance filed by Msevarthen, the case

was re - set for June 18, 200 3, and heard as re - scheduled.

Petitioner offered one document that was received into evidence.

Petitioner presented the testimony of Eddie Gregory, James

William Barlow, and testified in her own behalf. Wal - Mart

offered 20 documents that were received i nto evidence.

Respondent presented the testimony of Peter Greer and, without

objection, filed the transcript of Robert Mulak subsequent to

the hearing, for consideration as if he had testified at the

hearing.

A Transcript was filed September 2, 2003. Respondent

timely filed a Proposed Recommended Order on September 12, 2003,

which was considered in the preparation of this Recommended

Order. Petitioner did not file a proposed recommended order.

Citations are to Florida Statutes (1999) unless o therwise

noted.

FINDINGS OF FACT

1. Roberta Trevarthen is a female who worked for Wal - Mart

for two and one - half years until she was terminated August 3,

1999. Msevarthen has had a long career as a loss prevention

specialist and was functioning i n that capacity for Wal - Mart

during times pertinent to this case. A loss prevention

specialist uses surreptitious observation techniques to stop

theft that might be committed by customers or employees or both.

2. Wal - Mart is a retail outlet having stores across the

United States. One of the stores Wal - Mart owns and operates is

located in Port Orange, Florida.

3. The Florida Commission on Human Relations administers

the Florida Civil Rights Act of 1992.

4. Msevarthen was on duty as a loss prevention

specialist in the Port Orange, Wal - Mart store on August 2, 1999.

On that day she spotted a man whom she believed was acting

suspicious and who might be planning to shoplift. He was a

dirty white male who appeared to be a transient.

5 . Msevarthen observed the suspect go in and out of

the store on three occasions and then observed him re - enter the

store. She followed him to the electronics section and observed

him pick up an item in a Blistex container. Thereafter James W.

Barlow (Mr. Barlow), another loss prevention specialist working

in the store joined her. Msevarthen suggested that they

looked suspicious huddled together so she asked Mr. Barlow to

move away.

6. Msevarthen then observed the suspect enter the

fitt ing room with the object in his hands concealed by a pair of

men's trousers. When the suspect left the fitting room he put

the trousers on a display stand. Msevarthen asked

Mr. Barlow to check the fitting room and he found no merchandise

there.

7. Msevarthen watched the suspect walk toward the

grocery section and believed that he had an unnatural bulge in

his trousers. Then she observed him walk past the cash register

section and observed him exit the front door. Msevarthen

did not continuously observe the suspect from the time she first

suspected he had lifted merchandise, until when he departed the

store.

8. Once the suspect exited the store, Msevarthen,

Mr. Barlow, and a stocker named Eddie Gregory, stopped the

suspect, and required him to accompany them to the Security

Office. No merchandise was found on his person. The suspect

said that he had left the merchandise he had picked up on a

counter by the fitting room. The two loss prevention

specialists went with him to that area and there found a comb

and mirror set.

9. Pursuant to Wal - Mart procedures, a loss prevention

specialist must satisfy five elements before deciding to stop a

shoplifting suspect. The specialist must see the person take

merchandise from its resting place in the store; must observe

the person conceal the merchandise; must maintain observation of

the person at all times prior to the stop; must observe the

person fail to pay for the merchandise; and must allow the

person to exit the vestibule b efore effecting the stop.

10. Msevarthen failed to comply with the element

requiring constant observation of the suspect and thus, in loss

prevention parlance, made a "bad stop," which means the stop

failed to produce evidence sufficient to prose cute the suspect

as a thief. Although Mr. Barlow is a co - equal loss prevention

specialist, and he helped stop the suspect, it was

Msevarthen who initiated the operation, made the decision to

stop the suspect, and actually effected the stop. Therefor e, in

accordance with Wal - Mart policy, the responsibility for the bad

stop rested entirely on her.

11. The loss prevention specialist who makes a stop is

responsible for making the report concerning it, whether it is a

good stop or a bad stop. If a bad stop is made, the loss

prevention specialist is required to notify the store manager

and the district loss prevention supervisor. When these events

occurred, Robert Mulak (Mr. Mulak) was the store manager and

Peter Greer (Mr. Greer), was the district loss prevention

supervisor.

12. Msevarthen did not immediately tell Mr. Mulak or

Mr. Greer about the bad stop. Mr. Greer learned of it the next

day when Mr. Barlow informed him telephonically.

13. Msevarthen was the recipient of accept able

performance reviews on May 8, 1998, and January 18, 1999. She

was given a "Coaching for Improvement Form" on April 11, 1998,

by Joe T. Moore, who is currently the store manager, and again

on November 24, 1998, by Mr. Greer. These forms are given

sub sequent to counseling sessions.

14. Bad stops precipitated these "Coaching for Improvement

Forms." The first coaching was nothing more than a counseling

session. The subsequent coaching was termed a "decision - making"

session and was a serious eve nt. During this session she was

advised that another bad stop could result in her termination.

A "decision - making" session, recorded on a "Coaching for

Improvement Form," leaves an employee with no doubt that his or

her job is in jeopardy.

15. Gene rally speaking, Msevarthen's peers and

superiors seemed to have a higher opinion of her performance

than the performance and counseling reports indicate. She made

200 successful stops in one year, which was considered to be

exceptional by her supervis or.

16. Nevertheless, Msevarthen violated loss prevention

doctrine when she stopped the suspect on August 2, 1999, because

she did not observe the suspect from the time he was thought to

have concealed merchandise until the time he was stopped.

Moreover, she compounded the situation by failing to report it

to the store manager and to Mr. Greer, the district loss

prevention supervisor. This latter failing was an unforgivable

breach and resulted in her termination by Mr. Greer on August 3,

1999.

17. Providing guidance to Mr. Greer, with regard to his

decision to terminate Msevarthen, was a Wal - Mart document

addressing loss prevention that was titled, Reasons for

Immediate Dismissal. One of the reasons permitting immediate

dismissal is se t forth as follows: "Any breach of Company

policy where the In - Store Loss Prevention Associate is in direct

violation of Company policy rules, procedures, directives,

safety procedures, or regulations which relate to a breakdown of

integrity, job performa nce or the ability to perform his/her

duties will be cause for immediate termination from employment."

18. Mr. Barlow did not experience any disciplinary action

as a result of this stop because it was not his stop and it was

not his duty to report it . Mr. Barlow explained to Mr. Greer

that he delayed reporting the incident because he wanted to give

Msevarthen the opportunity to decide on her own to report

it. Mr. Barlow perceived that Msevarthen was afraid to

report it because she feared dis ciplinary action.

19. Msevarthen was told by Mr. Greer on one occasion,

"You are a gal, whip these guys' butts." She also once heard

someone say, "Hush up, there's a broad here." On one occasion

she had, in her own words, "kiddingly" been calle d a "girl."

Her testimony indicated that she was in no way offended by the

manner in which these words were used.

20. The only evidence Msevarthen could produce which

may have tended to prove that she was the victim of

discrimination were the fo regoing statements. The first

statement appears to have been an attempt to motivate her to

greater production. The second indicates that something was

being said that was, in someone's opinion, inappropriate for a

lady to hear. The references to her bei ng a girl appear to have

been made in jest.

21. Mr. Barlow has known Msevarthen for several years,

and had worked with her for more than a year, and he never heard

her complain about gender discrimination until the inception of

this case. Mr. Gr eer stated that he harbored no prejudice

toward women employees and stated that, "He was only interested

in people who got the job done." He further related that he

wanted people working for him who made him look like a good

manager.

22. Wal - Mart ha s a policy against discrimination. This is

explained to employees in the Associate Handbook which has a

section titled, "Respect for the Individual." In this section

are the words, "It is the policy of Wal - Mart to provide

recruitment, hiring, training, p romotion, and other conditions

of employment without regard to race, color, age, gender,

religion, disability, national origin, or veteran status."

23. At the time of her discharge Msevarthen was being

paid $10.47 per hour and was working 40 hour s per week.

Immediately subsequent to termination she was unemployed for as

long as four months. She lost her investigative license because

she was not working in the loss prevention field. After about a

year she obtained a job working with abused child ren and was

paid $9.20 per hour for 32 hours per week. After six months she

began working 40 hours per week. After a year her wage was

increased to $9.32 per hour. After a year and one - half her wage

was increased to $9.52 per hour. In April of 2003, he r wage was

increased to $10.05 per hour.

24. At Wal - Mart she had a 401(k) plan that Wal - Mart

supplemented with $20 per week, and insurance benefits. Wal -

Mart also provided health insurance. No 401(k) plan is offered

at her current place of employme nt.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1) and 760.11(4)(b) and

(6) (2002).

26. The Florida Civil Rights Act of 1992, as amended,

found at Sections 760.01 - 760.11 and Section 509.092, was

patterned after Title VII of the Civil Rights Acts of 1964 and

1991, Title 42 U.S. Code, Section 2000, et seq ., as well as the

Age Discrimination in Employment Act of 1967 (ADEA), Title 2 9

U.S. Code, Section 623. Federal case law interpreting Title VII

and the ADEA is applicable to cases arising under the Florida

Act. See Florida Department of Community Affairs v. Brant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

27. Section 760.10 provides i n part as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privilege s of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

28. It is apparent, therefore, that Section 760.10

provides that it is an unlawful employment practice to discharge

someon e on account of his or her sex.

29. In a case of alleged discrimination, the employee must

first establish that an unlawful employment practice has

occurred by proving by a preponderance of the evidence a prima

facie case of discrimination. A plaintiff e stablishes a prima

facie case of discrimination under Title VII by showing: (1) she

belongs to a minority; (2) she was subjected to an adverse job

action; (3) her employer treated similarly situated employees

outside her classification more favorably; and (4) she was

qualified to do the job . Demonstrating a prima facie case is

not onerous; it requires only that the plaintiff establish facts

adequate to permit an inference of discrimination. Holifield v.

Reno , 115 F.3d 1555 (11th Cir. 1997).

30. Mse varthen demonstrated that she was a member of a

protected class because she was a woman. She was subject to an

adverse job action because she was terminated. She was clearly

qualified to accomplish the tasks assigned to her as a loss

prevention specialis t. However, she failed to prove similarly

situated employees outside her classification were treated more

favorably.

31. With regard to this latter point, she attempted to

prove that Mr. Barlow made the stop in question and that

Mr. Barlow failed to rep ort the bad stop. The facts adduced at

the hearing, however, proved by a preponderance of the evidence

that Msevarthen made the determination that a stop was

appropriate, supervised the stop, and physically made the stop

herself. Furthermore, it was Mr. Barlow who informed management

of the stop, even though it was Msevarthen's duty to do so.

32. In this case no proof was elucidated which would tend

to show that there was any connection between Msevarthen's

sex and her discharge. She complai ned that she had been

referred to as a "broad" and a "girl" but there was no

indication that these references were made by persons in

authority, with the exception of the exhortations of Mr. Greer

that show to the male loss prevention specialists what a ca pable

employee she was. The alleged biases of other staff members are

not relevant. "The biases of one who neither makes nor

influences the challenged personnel decision are not probative

in an employment discrimination case." Medina - Munoz v. R.J.

Reynold s Tobacco Co. , 896 F.2d 5 (1st Cir. 1990).

33. The facts adduced by Msevarthen fell woefully

short of proving a prima facie case. However, assuming arguendo

that a prima facie case was proven, the evidence failed to prove

discrimination occurred.

34. If the employee succeeds in proving a prima facie

case, the burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the discharge of the

employee. Should the employer meet this burden, the employee

must then prove by a preponderance of evidence that the

legitimate reasons offered were a pretext for the employment

action and that, therefore, the real reason was grounded in

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973 ).

35. The employer in this case, demonstrated a legitimate,

nondiscriminatory reason for discharging Msevarthen. She

had been warned on November 24, 1998, that an additional bad

stop might result in her termination. Slightly more than eight

months later she made another bad st op. Msevarthen

compounded her mistake by failing to report it and subsequently

lying about it. These failings resulted in her dismissal.

36. No evidence whatsoever was produced that would tend to

show that Wal - Mart's actions were a pretext for discr iminatory

acts.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order be entered which dismisses

Msevarthen's Charge of Discrimination and Petition for

Relief.

DONE AND ENTERED this 22nd day o f September, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 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 22nd day of September, 2003.

COPIES FURNISHED :

Peter R. Corbin, Esquire

Ford & Harrison, LLP

121 West Forsyth S treet, Suite 1000

Post Office Box 41566

Jacksonville, Florida 32202

David Glasser, Esquire

Glasser and Handel

Suite 100, Box N

150 South Palmetto Avenue

Daytona Beach, Florida 32114

Denise Crawford, Agency Clerk

Florida Commission on Human Relation s

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.