06-002461 Ursula Costantini vs. Wal-Mart Stores East, L.P., No. 5326 Status: Closed Recommended Order on Wednesday, February 28, 2007.

Summary: Petitioner did not make a prima facie case of discrimination based on age, gender, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

URSULA CO STANTINI, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2461

)

WAL - MART STORES EAST, L.P. , )

NO. 5326 , )

)

Respondent. )

)

RECOMMENDED ORDER

A hear ing was held pursuant to notice, on November 9, 2006,

in Ocala, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Ursula Costantini , pro se

5108 Southwest Loop

Ocala, Florida 34476

For Respondent: Amy R. Harrison, Esquire

Lindsay A. Connor, Esquire

Ford & Harrison, LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Complaint of Discrimination

filed by Petitioner on September 26, 2005.

PRELIMINARY STATEMENT

On September 26, 2005, Petitioner, Ursula Costantini , filed

an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) which alleged that Wal - Mart

violated Sect ion 760.10, Florida Statutes, by discriminating

against her on the basis of age and gender.

The allegations were investigated and on June 15, 2006,

FCHR issued an Amended Determination of "no cause" and Amended

Notice of Determination: N o Cause.

A Peti tion of Relief was filed by Petitioner on July 10,

2006. The Petition for Relief also alleged retaliation. FCHR

transmitted the case to the Division of Administrative Hearings

(Division) on or about July 14, 2006. A Notice of Hearing was

issued setting the case for formal hearing on September 19,

2006. Respondent filed a Motion for Continuance , which was

granted. The hearing was rescheduled for October 13, 2006.

Petitioner filed a Motion for Continuance , which was granted.

The hearing was rescheduled for November 9, 2006.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Lucy Dixon, Jacqueline Case, and John

Hayek. Petitioner's Exhibit s lettered A through D were admitted

into evidence. Respondent presented the testi mony of David

A ch t ley, Doris Riofrio, Mich elle Perez, Margie Allen, and My la

Ga y le. Respondent offered Exhibits lettered A through H, which

were admitted into evidence.

A transcript consisting of one volume was filed on

January 9, 2007. The partie s timely filed Proposed Recommended

Orders which have been considered in the preparation of this

Recommended Order. Petitioner also filed a request that certain

exhibits already admitted into evidence at the hearing be

excluded. Petitioner's request for exclusion of these exhibits

is denied.

FINDINGS OF FACT

1. Petitioner, Ursula Costantini , was employed by Wal - Mart

Store No. 5326 (hereinafter Wal - Mart) from August 2004 until

June 2005. While employed by Wal - Mart, Petitioner held the

position of a part - time Accounting Office Associate.

2. David Achtley was store manager of Store 5326 at all

times material to this proceeding. Associates who were hired

prior to the store 's opening performed many tasks including

assembling counters, p utting up labels, unloading trucks, and

stocking shelves. Associates also received training.

3. When the store first started employing associates,

employees' work schedules were manually typed on a personal

computer. At that time, employees' schedules c ould be modified

fairly easily.

4. Shortly before the store actually opened, employees'

work schedules began to be generated using a staffing computer

program. In order to generate schedules, the program takes into

account sales, customer counts, holiday s, and other factors

including availability sheets completed by associates. When the

store was newly opened, much of this information was based on

projections.

5. The store in question opened in 2004. In May 2005,

Mr. A ch t ley began analyzing actual sale s data to earlier

projections. Mr. Ach t ley realized that his store was short of

its projected sales. As a result, he began re - evaluating

staffing needs to reflect actual sales data.

6. All employees complete a Customer Service Scheduling

Availability fo rm. Employees are not guaranteed to be assigned

the hours they request.

7. Petitioner completed a Customer Service Scheduling

Availability Sheet for part - time employment on June 10, 2005, on

which she stated that she was available to work Mondays through

Thursdays from 11:00 p.m. until 4:00 a.m. Under the words

"Store Shifts," "overnight" was circled. She indicated on the

form that she was not available to work on Saturdays or Sundays.

Petitioner completed another scheduling availability sheet on

Augus t 19, 2004, to work as a part - time employee. On this

availability form, Petitioner stated her availability to work as

"Open" any day of the week and at "any time," with the exception

of being unavailable to work on Sundays.

8. In June 2005, Wal - Mart's ho me office directed all

stores to stop modifying the computer - generated shifts, and

mandated that stores must have associates work the computer

generated shifts. Some of the shifts changed in part because

the store was not making the sales that had been pr ojected. The

only flexibility was to allow a modification of one hour for a

business or personal need at the beginning or end of a shift.

9. Petitioner had been working a 11:00 p.m. to 4:00 a.m.

shift. However, the computer program did not generate a sh ift

with those time frames. The overnight shift was changed to

10:00 p.m. to 7:00 a.m. Petitioner objected to the schedule

change.

10. Doris Riofrio was the operations co - manager of store

5326. Ms. Riofrio supervised Margie Allen, the assistant who

was directly over the accounting office. Petitioner contacted

Ms. Riofrio to discuss this schedule change. At the time,

Mr. A ch t ley was out of town. However, he phoned Petitioner from

an airport when he received a voice - mail message to discuss the

schedule change. Mr. A ch t ley informed Petitioner, that he could

no longer modify work schedules as in the past. He explained

that he had a position available for her in the cash office from

10:00 p.m. to 7:00 a.m., but that he could no longer offer her a

positio n with an 11:00 p.m. to 4:00 a.m. schedule.

11. Petitioner met with Mr. Ach t ley and Michele Perez, the

personnel coordinator for store 5326. Mr. Ach t ley again

explained that there was no shift from 11:00 p.m. to 4:00 a.m.

Petitioner refused to work the 11:00 p.m. to 7:00 a.m. shift.

12. Mr. A ch t ley also offered to look at other position s in

the store that were available that might have a shorter

schedule, but she did not accept that offer either. She did not

want to work anywhere in the store except t he cash office during

the hours she had been working.

13. During this meeting, Petitioner did not express that

she was being discriminated against because of her age or

gender.

14. At the conclusion of the meeting, an Exit Interview

form was filled out a nd signed by Mr. Ach t ley and Ms. Perez. On

the form, Mr. A ch t ley checked "yes" that he would recommend her

for re - hire. The following was written in the comment section:

"Refused new job offer, refused to alter availability, available

shifts not acceptab le to her, good associate, very dependable,

would rehire." Petitioner refused to sign the form.

15. Respondent did not hire anyone to replace Petitioner

in the accounting office following Petitioner's leaving

employment with Respondent. Associates who w orked the overnight

shift aft er she left worked the computer - generated shift, not

the 11:00 p.m. to 4:00 a.m. shift previously worked by

Petitioner.

16. Petitioner presented testimony from former co - workers

about personality conflicts within the accountin g office, in

particular with Myla Gayle, who was the lead associate in the

cash office at the time Petitioner was employed there. However,

those witnesses acknowledged that the conflicts were not related

to age or gender.

17. One of the co - workers who te stified on behalf of

Petitioner is a 62 - year - old male. He continues to work for

Respondent. He believes that he was discriminated against on

the basis of age when applying for a particular position which

was filled by a younger person. However, that per son's

qualifications or wages are not in evidence.

18. There is no competent evidence that Wal - Mart used age

or gender as a criterion in its determining its associates' work

schedules, including Petitioner's.

19. Petitioner did not engage in any prot ected activity

prior to her termination from employment at Wal - Mart.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

21. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discriminate against an individual on the basis of age

or sex (gender).

Age Discrimination

22. In order to make out a pr ima facie case of age

discrimination under the federal Age Discrimination in

Employment Act (ADEA), the complainant must show that she was a

member of a protected age group, that she was qualified for the

job, that she was rejected, and that she lost the p osition to a

younger person. Benson v. Tocco, Inc. , 113 F.3d 1203, 1207

(11th Cir. 1997), citing McDonnell Douglass Corp. v. Green , 411

U.S. 792 (1973) (t he 11th Circuit has adopted a variation of the

McDonnell Douglass Corp. v. Green test in ADEA violati on

claims.) . 1/

23. However, in cases alleging age discrimination under

Section 760.10(1)(a), Florida Statutes, FCHR has concluded that

unlike cases brought under ADEA, the age of 40 has no

significance. FCHR has determined that to demonstrate th e last

element of a prima facie case of age discrimination under

Florida law, it is sufficient for Petitioner to show that she

was treated less favorably than similarly - situated individuals

of a "different" age as opposed to a "younger" age. See Linda

Mar chinko v. The Wittemann Co., Inc. , FCHR Order No. 06 - 005

(January 6, 2006), and numerous cases cited therein.

24. Petitioner has not met her burden of proving a prima

facie case of age discrimination under either federal or Florida

law. As to the first element of establishing a prima facie

case, she is, and was at the time of her employment with

Respondent, a member of a protected age group for purposes of

ADEA. As to the second element, while the minimum

qualifications for the job are not clear from t he record, there

is nothing to indicate that she was not qualified for the job

and she was not fired because of poor job performance.

Accordingly, she met the minimum requirements for the job

satisfying the second element of establishing a prima facie

cas e.

25. As to the next element of establishing a prima facie

case, Petitioner was subject to an adverse employment decision

in that she was not kept on the job. There is no competent

evidence that anyone was hired to replace Petitioner, much less

a person of a "different" age group. Thus, this element of

establishing a prima facie case is not satisfied.

26. A ssuming that Petitioner had established a prima facie

case, when the charging party, i.e. , Petitioner, is able to make

out a prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non - discriminatory

explanation for the adverse employment action. Walker v.

Prudential Property and Casualty Insurance Company , 286 F.3d

1270 (11th Cir. 2002); Department of Correcti ons v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting

burdens of proof in discrimination cases). The employer has the

burden of production, not persuasion, and need only persuade the

finder of fact that the decision was non - discri minatory.

Department of Corrections v. Chandler , supra ; Alexander v.

Fulton County, GA , 207 F.3d 1303 (11th Cir. 2000).

27. Even if Petitioner established a prima facie case of

age discrimination, Respondent has adequately articulated a

legitimate, non - discriminatory explanation for its employment

decision regarding Petitioner. Petitioner was not willing to

adjust to the schedule change and did not want to accept any

other position with Respondent. As such, Respondent has

asserted a legitimate, non - discriminatory reason for not

continuing to employ Petitioner. The decision of Respondent

regarding Petitioner was based upon legitimate means and was not

based upon Petitioner's age.

28. Petitioner failed to present sufficient evidence to

contradict the evidence presented by Respondent that she was not

retained by Wal - Mart because she was not willing to work a new

hourly schedule or change positions.

29. Once the employer articulates a legitimate non -

discriminatory explanation for its actions, the bu rden shifts

back to the charging party to show that the explanation given by

the employer was a pretext for intentional discrimination.

"Would the proffered evidence allow a reasonable factfinder to

conclude that the articulated reason for the decision was not

the real one?" Walker v. Prudential , supra . "The employee must

satisfy this burden by showing directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief." Department of

Corrections v. Chandler , 582 So. 2d 1183 at 1186; Alexander v.

Fulton County, GA , supra . Petitioner has not met this burden.

30. Courts have found only the most blatant remarks, whose

intent could be nothing other than to discriminate on the basis

of age, to constitute direct evidence of age discrimination.

See, e.g. , Barnes v. Southwest Forest Industries , 814 F.2d 607

at 610 (11th Cir. 1987) (remark by personnel manager to

terminated security guard t hat in order to transfer, "you would

have to take another physical examination at your age, I don't

believe you could pass it" was not considered direct evidence of

age discrimination by the court); Williams v. General Motors

Corp. , 656 F.2d 120 at 130 (5t h Cir. Unit B 1981) cert. denied ,

455 U.S. 943 (1982) (scrap of paper on which was written

"Too old -- Lay Off" would constitute direct evidence of

discriminatory intent).

31. Other than Petitioner's assertions that Respondent

discriminated against h er, Petitioner presented no evidence

establishing that Respondent's reasons were pretextual.

Petitioner's speculation and personal belief concerning the

motives of Respondent are not sufficient to establish

intentional discrimination. See Lizaro v. Denny 's, Inc. , 270

F. 3d 94, 104 (2d Cir. 2001) ( p laintiffs have done little more

than to cite to their mistreatment and ask the court to conclude

it must have been related to their race. This is not

sufficient.") .

Gender Discrimination

32. To establish a prima facie case of gender

discrimination, Petitioner must demonstrate similar elements to

those previously discussed regarding age discrimination: that

she is a member of a protected class; that she is qualified to

do her job; and that her employer trea ted si milarly - situated

employees outside of her protected class more favorably than it

treated her. See , McDonnell , supra .

33 . Petitioner is a female and a member of a protected

class. As Mr . Ach t ley acknowledged on her exit interview form

that he would rehire her, she was presumably qualified to do her

job. As to the third prong of the analysis, however, there is

no competent evidence that Respondent treated men more favorably

than Petitioner in the application of its computer - generated

work schedule a fter June 2005, or in any other aspect of her

employment.

Retaliation

34 . To establish a prima facie case of retaliation,

Petitioner must show that she engaged in protected activity,

that she suffered adverse employment action, and that there is

some c ausal relation between the protected activity and the

adverse employment action. Casiano v. Gonzales , 2006 U.S. Dist.

Lexis 3593 (N.D. Fla. 2006): Jeronimus v. Polk County

Opportunity Council, Inc. , 2005 U.S. App. Lexis 17016 (11th Cir.

2005). There is no evidence that Petitioner engaged in

protected activity (i.e., complained about unlawful

discriminatory treatment) when she spoke to any of her

superiors, to support a charge of retaliation.

3 5 . In summary, Petitioner has failed to carry her burden

of proof that Respondent engaged in discrimination based on age,

gender, or retaliation in its actions regarding her employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

Tha t the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 2 8 th day of February, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Admin istrative 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 Adm inistrative Hearings

this 28 th day of February, 2007.

ENDNOTE

1/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Stat utes. See Brand v.

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

COPIES FURNISHED :

Ursula Costantini

5108 Southwest Loop

Ocala, Florida 34476

Amy R. Harrison, Esquire

Lindsay A. Conner, Esquire

Ford & Harrison, LLP

225 Water Street, Suite 710

Jacksonville, Florida 32202

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee P arkway, 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.