08-000715 Linda M. Cinnante vs. Kmart Corporation Status: Closed Recommended Order on Thursday, July 31, 2008.

Summary: Petitioner failed to show that she was treated differently than male workers under similar circumstances, and she, therefore, failed to prove that she had been discriminated against on the basis of gender.The Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA M. CINNANTE, )

)

Petitioner, )

)

vs. ) Case No. 08-0715

)

KMART CORPORATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 3, 2008, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: G. Ware Cornell, Esquire

Cornell & Associates, P.A.

1792 Bell Tower Lane, Suite 210

Weston, Florida 33326

For Respondent: David M. DeMaio, Esquire

Ogletree, Deakins, Nash, Smoak &

Stewart, P.C.

701 Brickell Avenue, Suite 2020

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the Respondent committed an unlawful employment

practice by discriminating against the Petitioner on the basis

of gender in violation of the Florida Civil Rights Act of 1992,

as amended, Section 760.10 et seq ., Florida Statutes (2006). 1

PRELIMINARY STATEMENT

In a Petition for Relief dated February 7, 2008, and filed

with the Florida Commission on Human Relations ("FCHR"), Linda

M. Cinnante alleged that Kmart Corporation ("Kmart")

discriminated against her on the basis of her gender, in

violation of Section 760.10, Florida Statutes, when it

terminated her employment as a Loss Prevention Associate for

making a "bad stop" of a person she suspected of shoplifting. 2

Ms. Cinnante asserted that a male employee of Kmart made a "bad

stop" but that he was not terminated from his employment as a

Loss Prevention Associate. The FCHR transmitted the matter to

the Division of Administrative Hearings for assignment of an

administrative law judge. After one continuance, the final

hearing was held on June 3, 2008.

At the hearing, Ms. Cinnante testified in her own behalf

and presented the testimony of Kevan Allen; Petitioner's

Exhibits 2, 7, 11, 14, and 17 were offered and received into

evidence. Kmart presented the testimony of Jorge Vega, Lisa

Marie Bowman, and David Shane Pearson; Respondent's Exhibits 1,

2, 6 through 8, 16, 17, 20 through 22, and 33 through 36 were

offered and received into evidence. Respondent's Exhibit 34 is

the transcript of the May 13, 2008, deposition of Linda

Cinnante; Respondent's Exhibit 35 is the transcript of the

deposition of Janet Brush, offered in lieu of live testimony;

and Respondent's Exhibit 36 is the transcript of the deposition

of Ashworth Charles, offered in lieu of live testimony.

The one-volume transcript of the proceeding was filed with

the Division of Administrative Hearings on June 13, 2008. The

parties timely filed proposed findings of fact and conclusions

of law, as well as post-hearing briefs, which have been

considered in the preparation of the Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. In early February 2006, Ms. Cinnante was hired by Kmart

as a Loss Prevention Associate at Kmart Store 7786 in West Palm

Beach, Florida. The duties of Kmart Loss Prevention Associates

include the prevention of shoplifting and the detention of

suspected shoplifters. They also oversee store safety and are

expected to clean up any hazard in the store, including picking

up clothes hangers from the floor and cleaning up spills.

Finally, Loss Prevention Associates are expected to assist with

removing outdated items from shelves and cleaning up the

employee kitchen.

2. Ms. Cinnante's supervisor was Jorge Vega, the Loss

Prevention Manager for Kmart Store 7786. At the times material

to this proceeding, Mr. Vega's supervisor was Janet Brush,

Kmart's District Loss Prevention Manager, and Ms. Brush's

supervisor was Shane Pearson, Kmart's Regional Loss Prevention

Manager. 3

3. Ms. Cinnante was hired by Ms. Brush on the

recommendation of Kmart Store 7786's manager, Lisa Bowman.

Mr. Vega had brought Ms. Cinnante's employment application to

Ms. Bowman's attention because of her experience in security.

Ms. Bowman recommended Ms. Cinnante to Ms. Brush as a good

candidate for Loss Prevention Associate, and eventually Loss

Prevention Manager in another Kmart store, because of her

extensive background and experience in security and because

Kmart Store 7786 needed a female Loss Prevention Associates to

monitor women's fitting rooms and restrooms.

Training for Loss Prevention Associates.

4. Loss Prevention Associates receive Kmart's loss

prevention handbook, computer-based training, and on-the job

training before they are certified to detain suspected

shoplifters.

5. At the times material to this proceeding, the computer-

based training given to Loss Prevention Associates consisted of

five computer discs containing various chapters. To ensure that

employees completed each chapter, they were required to pass a

test at the end of the chapter in order to proceed to the next

chapter. The employees were also required to pass a test upon

the completion of the course.

6. In the on-the-job training, Loss Prevention Associates

completed three "stops" or detentions of suspected shoplifters.

For the first "stop," the new Loss Prevention Associate observed

other Loss Prevention personnel as they completed the steps

culminating in the detention of a suspected shoplifter; for the

second "stop," the new Loss Prevention Associate participated in

completing the steps culminating in the detention of a suspected

shoplifter; and for the third "stop," the new Loss Prevention

Associate was supervised while completing the steps culminating

in the detention of a suspected shoplifter.

Kmart policy and procedure for detaining suspected shoplifters.

7. Loss Prevention Associates are expected to master the

"Six Required Steps to Make a Detention" ("Six Steps") contained

in Kmart's loss prevention handbookaining in the Six Steps

constituted a substantial part of both the computer-based

training and the on-the-job training. The Six Steps are as

follows: 4

In order to initiate detention of a

suspected shoplifter, the following elements

for each of the six steps must be met:

Step 1: Observe suspect approach the

merchandise. The suspect must be observed

approaching the merchandise in question . It

is important to know that the suspect did

not have the merchandise in question prior

to being observed by Loss Prevention

personnel.

Step 2: Observe suspect select merchandise.

The suspect must be observed selecting the

merchandise in question . It is important

that we positively know that the merchandise

in question is Kmart merchandise. In some

cases, customers bring items into the store

to compare size, color, technical data, etc.

Step 3: Observe suspect's concealment. The

suspect must be observed concealing the

merchandise in question . Loss Prevention

personnel must know where the suspect has

concealed the merchandise. Personal

observation of the concealment is necessary.

Step 4: Maintain continuous surveillance.

From the point of concealment, until the

suspect exits the store there must be

uninterrupted observations of the suspect .

It is important to know that the suspect has

not put back, dumped, moved the merchandise

to a different concealment location, passed

to someone else or paid for the merchandise

between the observed concealment and being

stopped exiting the store.

Step 5: Failure to pay. The suspect must

be allowed every opportunity to change their

mind and pay for the merchandise . They must

pass by the cash register area or go through

the cash register lanes without declaring

the concealed merchandise.

Step 6: The stop. Suspect may only be

stopped in the vestibule or outside the

store. No detentions for shoplifting can be

conducted within the store . Caution should

be used for stops within the vestibule if

there are pay phones or these is merchandise

offered for sale in the vestibule, as

shoplifters can claim to have entered the

vestibule to use the phone or pick up

additional merchandise.

* * *

Caution! Individuals may attempt to "set

you up."

Example: You come across a man by the

sunglasses display. He has a pair of

sunglasses in his hand complete with price

tag. He slides the sunglasses in his pocket

and quickly leaves the store. You stop him

for shoplifting but find out the sunglasses

were his. He had a receipt and was just

comparing them to other sunglasses on the

rack. Although it appeared that intent was

demonstrated, you have failed to fulfill the

first of the six steps. You did not see the

subject prior to the theft (i.e., approach

the merchandise) so you are not really sure

whether the subject even took the sunglasses

off the rack or if the sunglasses are Kmart

merchandise. If you act, you have exposed

yourself and Kmart to a potential lawsuit

due to you failure to adhere to the six

required steps.

8. The first three of the Six Steps are considered the

most important because they must be followed in order to confirm

that a crime is being committed. A Loss Prevention Associate

cannot be certain that a theft has taken place if the Loss

Prevention Associate has not observed the suspected shoplifter

approach the merchandise, select the merchandise, and conceal

the merchandise.

9. Loss Prevention personnel are required to follow the

Six Steps in making detentions for shoplifting in order to

protect against lawsuits for wrongful detention. As is

explained in Kmart's loss prevention handbook, in order to avoid

lawsuits, Kmart must be able to show that, among other things,

"[t]he six elements required to make a detention were met."

10. Loss Prevention Associates are made aware that

termination of employment is the consequence of a Loss

Prevention Associate's failure to follow the Six Steps prior to

detaining a suspected shoplifter. Very rarely and depending on

the circumstances, an exception to termination may be made when

a Loss Prevention Associate makes a detention after failing to

complete the requirement in step 4 to keep the suspected

shoplifter under continuous surveillance. This exception to

termination is made under circumstances when, because of the

layout of the store or other factors, there are very brief

lapses in the surveillance of the suspected shoplifter.

Ms. Cinnante's termination.

11. Ms. Cinnante successfully completed the computer-based

training and the on-the-job training and was certified to detain

suspected shoplifters as a Kmart Loss Prevention Associate. She

received extensive training in the Six Steps that must be

followed by Loss Prevention personnel before a suspected

shoplifter can be detained; she knew that the purpose of the Six

Steps was to avoid lawsuits against Kmart; and she knew that

termination was the penalty for failing to follow the Six Steps.

12. On August 1, 2006, Ms. Cinnante was working as a Loss

Prevention Associate in Kmart Store 7786. As she was leaving

Mr. Vega's office, she observed a man walking away from the

display of toothpaste and turning into the aisle in which

toothbrushes were displayed. Ms. Cinnante happened to follow

the man as he walked down the aisle containing the toothpaste,

and, after the man turned into the other aisle, she proceeded to

the main aisle and walked to the garden department, where she

spoke briefly with another employee. Out of the corner of her

eye, she observed the man holding a toothbrush and toothpaste in

his left hand and then removing a toothbrush from the shelf

display and comparing the one in his left hand with the one he

had removed from the shelf. Ms. Cinnante watched as the man put

the toothbrush in his right hand back on the shelf. She also

observed him move the toothbrush and toothpaste he was holding

in his left hand into his right hand and put the toothbrush and

toothpaste in his right pants pocket.

13. Ms. Cinnante observed the man while he shopped in the

jewelry and shoe departments. While the man was in the shoe

department, Mr. Vega came up to Ms. Cinnante and asked her what

was "going on." Ms. Cinnante told Mr. Vega that the man had a

toothbrush and toothpaste in his right pocket. Mr. Vega walked

behind the man, returned to Ms. Cinnante, and told her that the

man also had a bottle of shampoo in his left pocket. Mr. Vega

told Ms. Cinnante to "stay on" the man, and he left to meet with

Ms. Brush, who was visiting his office that day.

14. Ms. Cinnante observed the man pull the shampoo bottle

from his pocket and put it on the bench in the shoe department.

The man then sat down on the bench and tried on a pair of shoes.

He removed the shoes and put his own shoes back on, and then he

walked away, leaving the shampoo bottle on the bench.

15. As the man approached a cashier, Ms. Cinnante tried to

contact Mr. Vega, but he did not respond. The man paid for some

items and left the store. Meanwhile, Ms. Cinnante had tried

several times to reach Mr. Vega on the telephone, but he did not

respond. When the man left the store, Ms. Cinnante followed

him, walked around him to meet him face-to-face, pulled out her

badge, identified herself as a loss prevention officer for the

store, and detained him. The man did not speak English but,

through another Kmart employee who spoke Spanish, the man told

Ms. Cinnante that the toothbrush and toothpaste were his and

were not Kmart merchandise.

16. As Ms. Cinnante was escorting the man to Mr. Vega's

office, Mr. Vega came around a corner and met them. Mr. Vega

spoke to the man in Spanish, examined the toothbrush and

toothpaste, and determined that they were not Kmart merchandise.

17. Ms. Cinnante realized at that time that she had not

followed all of the Six Steps and had made a "bad stop." She

felt very bad about the incident, and she and Mr. Vega

apologized to the man, who accepted the apologies and left the

store.

18. Mr. Vega told Ms. Cinnante that she would lose her job

over the incident and that there "was no way around" the

problem. Mr. Vega returned to his office and told Ms. Brush,

who was still working in Mr. Vega's office, about the incident.

Ms. Brush asked that Mr. Vega call Ms. Cinnante into the office.

19. Ms. Brush discussed the incident with Ms. Cinnante and

immediately prepared a statement detailing the circumstances of

the incident as related by Mr. Vega and Ms. Cinnante. Ms. Brush

concluded that Ms. Cinnante had failed to follow the Six Steps

in detaining the man because Ms. Cinnante failed to see the man

approach and select the toothpaste and toothbrush and that the

value of the items in question was not over $5.00. Ms. Brush

recommended that Ms. Cinnante be terminated, and she sent her

report, dated August 1, 2006, to Kmart's Regional Office by

facsimile transmittal and by electronic mail.

20. Mr. Pearson, Kmart's Regional Loss Prevention Manager,

responded to Ms. Brush's report and recommendation by electronic

mail on August 2, 2008. He directed Ms. Brush to terminate

Ms. Cinnante for violation of company policy. Ms. Bowman

terminated Ms. Cinnante on August 3, 2006.

July 14, 2006, detention of suspected shoplifter by Ashworth

Charles.

21. On July 14, 2006, Mr. Vega, Ms. Cinnante, and Ashworth

Charles, a Loss Prevention Associate employed at Kmart

Store 7786, were in Mr. Vega's office when they observed on the

video monitor a man remove a 20" LCD television from the shelf

in the Electronics Department and place it in his cart.

Mr. Vega, Ms. Cinnante, and Mr. Charles hurriedly left

Mr. Vega's office and proceeded to place the man under

surveillance. Mr. Vega, Ms. Cinnante, and Mr. Charles worked

together as a team, with each of them taking up separate

positions in order to keep the man under continuous

surveillance.

22. Mr. Vega and Ms. Cinnante separated and took up

positions inside the store where they could keep the suspected

shoplifter under continuous surveillance, and Mr. Charles exited

the store through the garden shop entrance and took up a

position outside the store, in front of the glass doors leading

from the main part of the store. Mr. Charles stood against a

column with his back to the doors. Mr. Vega communicated with

Mr. Charles by cell phone and kept him advised of the suspected

shoplifter's movements.

23. Kmart stores have two sets of glass doors leading from

the store to the outside. The first set of doors leads to the

vestibule, which is an area that contains pay telephones and

vending machines, none of which are owned or operated by Kmart.

The second set of doors leads to the parking lot.

24. The suspected shoplifter was observed by Ms. Cinnante

or Mr. Vega or both pushing the cart containing the television

past the cashiers' stations and past all points at which he

could have paid for the television. The suspected shoplifter

sat on a bench near the doors into the vestibule for a few

minutes, constantly looking around the store, and then he went

through the inner glass doors into the vestibule of the store.

Mr. Vega saw the suspected shoplifter hesitate in the vestibule,

and then he saw the outside glass doors begin to open. He used

his cell phone to direct Mr. Charles to detain the suspected

shoplifter. Ms. Cinnante was not near Mr. Vega when he directed

Mr. Charles to make the detention.

25. Mr. Charles made the detention while the suspected

shoplifter was in the vestibule but was in the process of

pushing the cart through the doors leading to the outside of the

store and the parking lot. The suspected shoplifter was

escorted to Mr. Vega's office, where he identified himself as

Kevan Allen. Mr. Allen stated that he was waiting for his

mother to meet him and pay for the television. Mr. Vega decided

to call the police, and Mr. Allen was arrested. He subsequently

pled guilty to retail theft and was sentenced.

26. Mr. Vega did not report Mr. Charles for making a "bad

stop" because he did not consider the detention of Mr. Allen to

be improper. The detention was a team effort involving

Mr. Vega, Ms. Cinnante, and Mr. Charles, and all of the Six

Steps were followed by the team. The detention while Mr. Allen

was still in the vestibule was specifically permitted in Step 6,

even though such stops are to be made with caution.

Treatment of Loss Prevention Associates who failed to follow the

Six Steps.

27. Two Loss Prevention Associates working in the Kmart

Store 7786 had been terminated for failing to follow the Six

Steps prior to Ms. Cinnante's termination. Both terminated

employees were male.

28. One Loss Prevention Associate working in Kmart

Store 7786 was sent to re-training after detaining several

suspected shoplifters without having had them under continuous

surveillance. On that occasion, continuous surveillance of the

suspected shoplifters was not possible given the circumstances,

and Ms. Brush recommended that the Loss Prevention Associate not

be terminated.

29. In 2002, Mr. Charles made what he considered a

questionable "stop" even though he followed all of the Six

Steps. At the time, he was working in a store other than Kmart

Store 7786. Mr. Charles stopped a man who had tried on several

pairs of shoes in the shoe department based on his belief that

the man had switched his shoes for Kmart shoes. After he

stopped the man outside the store, Mr. Charles asked about the

shoes. The man offered an explanation, but Mr. Charles still

thought that the shoes could have been Kmart merchandise; he was

not certain, however, and he let the man go.

30. Mr. Charles reported the incident to the store Loss

Prevention Manager, who reported the incident to Ms. Brush. The

decision was made to terminate Mr. Charles's certification to

detain suspected shoplifters, and he was required to complete

all of the training required of a new Loss Prevention Associate

and to become re-certified to make detentions.

Summary.

31. Ms. Cinnante failed to present any persuasive direct

evidence that Kmart intended to discriminate against her on the

basis of her gender. There was no persuasive evidence that

Mr. Vega displayed any discriminatory animus toward Ms. Cinnante

because she was a woman. Mr. Vega's statement to Ms. Cinnante

that he needed to hire a woman Loss Prevention Associate to

monitor the women's fitting rooms and restrooms cannot

reasonably support the inference that he hired Ms. Cinnante only

because she was a woman. To the contrary, there is persuasive

evidence that Mr. Vega and Ms. Bowman were impressed by

Ms. Cinnante's background and experience in security and

believed she would be a good Loss Prevention Associate and could

eventually move up to Loss Prevention Manager.

32. In addition, Ms. Cinnante failed to present evidence

to establish that Mr. Vega treated Ms. Cinnante differently than

he treated male Loss Prevention Associates by requiring her to

perform tasks not related to store security. Rather, there is

persuasive evidence showing that all Loss Prevention personnel

in Kmart Store 7786, not just Ms. Cinnante, were required to

clean the employee kitchen and do other, non-security-related

jobs around the store.

33. Most importantly, however, Ms. Cinnante has not

presented any evidence that the persons making the decision to

terminate her employment had any discriminatory animus toward

her whatsoever. Mr. Vega reported the incident to Ms. Brush,

who had recommended that Ms. Cinnante be hired as a Loss

Prevention Associate, and Ms. Brush recommended that

Ms. Cinnante be terminated. Mr. Pearson, Kmart's Regional Loss

Prevention Manager, made the final decision to terminate

Ms. Cinnante. Although the evidence establishes that Mr. Vega

reported Ms. Cinnante's improper detention to Ms. Brush on

August 1, 2006, there is no evidence that Mr. Vega failed to

report any other improper detention by a Loss Prevention

Associate.

34. The evidence presented by Ms. Cinnante is not

sufficient to establish that Kmart treated male Loss Prevention

Associates differently than she was treated under similar

circumstances. Ms. Cinnante does not claim that she followed

all of the Six Steps required for the detention of a suspected

shoplifter or that the August 1, 2006, detention was proper.

She contends, rather, that Mr. Charles was treated differently

because he was not terminated for making what she categorized as

an improper detention on July 14, 2006. The evidence is not

sufficient to establish that any of the Six Steps were not

followed when Mr. Charles detained Mr. Allen, and Ms. Cinnante

has failed, therefore, to establish that the detention of

Mr. Allen was improper. The circumstances of Ms. Cinnante's

August 1, 2006, detention and of Mr. Charles's July 14, 2006,

detention were, therefore, not similar.

35. Ms. Cinnante also failed to present persuasive

evidence to establish that the circumstances of the 2002

incident in which Mr. Charles released a suspected shoplifter

after stopping him for questioning were similar to those of the

August 1, 2006, improper detention leading to Ms. Cinnante's

termination.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2007).

37. Section 760.10, Florida Statutes, part of the Florida

Civil Rights Act of 1992, as amended, provides in pertinent

part:

(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 privileges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

38. Florida courts routinely rely on decisions of the

federal courts construing Title VII of the Civil Rights Act of

1964, codified at Title 42, Section 2000e et seq. , United States

Code, ("Title VII"), when construing the Florida Civil Rights

Act, "because the Florida act was patterned after Title VII."

Harper v. Blockbuster Entertainment Corp. , 139 F.3d 1385, 1387

(11th Cir. 1998), citing, inter alia , Ranger Insurance Co. v.

Bal Harbor Club, Inc. , 549 So. 2d 1005, 1009 (Fla. 1989), and

Florida State University v. Sondel , 685 So. 2d 923, 925, n. 1

(Fla. 1st DCA 1996) .

39. Ms. Cinnante has the burden of proving by a

preponderance of the evidence that she was the victim of

employment discrimination, and she can establish discrimination

either through direct evidence of discrimination or through

circumstantial evidence, which is evaluated within the framework

of the burden-shifting analysis first articulated in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See Logan

v. Denny's Inc. , 259 F.3d 558, 566-67 (11th Cir. 2001).

40. As observed by the court in Bass v. Board of County

Comm'rs, Orange County, Florida , 256 F.3d 1095, 1105 (11th Cir.

2001):

Direct evidence of discrimination is

"evidence which, if believed, would prove

the existence of a fact [in issue] without

inference or presumption." . . . "Only the

most blatant remarks, whose intent could be

nothing other than to discriminate on the

basis of [gender] constitute direct evidence

of discrimination." . . . "For statements of

discriminatory intent to constitute direct

evidence of discrimination, they must be

made by a person involved in the challenged

decision." . . ."Remarks by non-decision

makers or remarks unrelated to the decision-

making process itself are not direct

evidence of discrimination."

(Citations omitted).

41. Based on the findings of fact herein, Ms. Cinnante has

presented no persuasive direct evidence that she was

discriminated against because of her gender. Mr. Pearson

ordered her termination based on Ms. Brush's recommendation, and

Ms. Cinnante presented no evidence that either Mr. Pearson or

Ms. Brush had ever displayed any discriminatory animus toward

her. Furthermore, based on the findings of fact herein,

Ms. Cinnante has presented no persuasive evidence that Mr. Vega

ever exhibited any discriminatory animus toward her.

42. In the absence of direct evidence of discrimination,

Ms. Cinnante must rely on the presumption set forth in McDonnell

Douglas to establish a prima facie case of discrimination on the

basis of gender by showing that (1) she is a member of a

protected class; (2) she was qualified to do the job; (3) she

suffered an adverse employment action; and (4) she was treated

differently than similarly situated Kmart Loss Prevention

Associates outside the protected class. See Haas v. Kelly

Servs. Inc. , 409 F.3d 1030, 1035 (8th Cir. 2005); Chapman v. AI

Transp. , 229 F.3d 1012, 1024 (11th Cir. 2000).

43. If Ms. Cinnante satisfies her burden of proving a

prima facie case of discrimination on the basis of gender, the

burden of producing evidence then shifts to Kmart to produce

evidence articulating "a legitimate, non-discriminatory reason"

for terminating Ms. Cinnante. Id. If Kmart establishes a

legitimate, non-discriminatory reason for terminating

Ms. Cinnante, Ms. Cinnante must produce evidence to prove that

the non-discriminatory reason offered by Kmart is pretextual.

Jones v. School Dist. of Philadelphia , 198 F.3d 403, 410 (3d

Cir. 1999).

44. Based on the findings of fact herein, there is no

dispute that Ms. Cinnante is a member of a class of persons

protected by Section 760.10, Florida Statutes; that she was

qualified to work as a Loss Prevention Associate for Kmart; and

that she was terminated from this position. The first three

elements of a prima facie case of employment discrimination

have, therefore, been satisfied.

45. Nonetheless, Ms. Cinnante has failed to meet her

burden of establishing a prima facie case of discrimination on

the basis of gender because she has failed to make a persuasive

showing that she was treated differently by Kmart than other

Loss Prevention Associates outside her protected class were

treated under similar circumstances. In a case such as this,

involving discipline for misconduct or violations of workplace

policies, Ms. Cinnante must establish that similarly situated

male employees were treated more favorably than she was when the

male employees engaged in substantially the same type of

conduct: "'The most important factors in the disciplinary

context are the nature of the offenses committed and the nature

of the punishments imposed.' . . . In order to satisfy the

similar offenses prong, the comparator's misconduct must be

nearly identical to the plaintiff's in order 'to prevent courts

from second-guessing employers' reasonable decisions and

confusing apples with oranges.'" Silvera v. Orange County Sch.

Bd. , 244 F.3d 1253, 1259 (11th Cir. 2001).

46. Based on the findings of fact herein, Ms. Cinnante has

failed to produce sufficient evidence to satisfy the fourth

prong of a prima facie case of gender discrimination under the

McDonnell Douglas analysis. The evidence establishes that it

was Kmart's policy to terminate Loss Prevention Associates who

failed to follow the Six Steps, except for the rare circumstance

when a Loss Prevention Associate was unable to keep a suspected

shoplifter under continuous surveillance. In addition, and more

specifically, Ms. Cinnante failed to present any evidence

establishing that Kmart failed to terminate any Loss Prevention

Associate, either male or female, who did not follow the

critical first three of the Six Steps, the conduct for which she

was terminated.

47. Ms. Cinnante has also failed to establish that

Mr. Charles committed any misconduct with respect to the

July 14, 2006, detention of Mr. Allen or to establish that

Mr. Charles's decision in 2002 to let a shoplifter go was based

on circumstances even remotely similar to those in which

Ms. Cinnante made the improper detention on August 1, 2006, for

which she was terminated.

48. Because Ms. Cinnante has failed to establish a prima

facie case of discrimination on the basis of gender, it is not

necessary to consider whether Kmart produced persuasive evidence

of a legitimate, non-discriminatory reason for terminating

Ms. Cinnante. Nonetheless, it is concluded that the evidence

presented by Kmart is sufficient to establish that its policy

requiring termination of Loss Prevention Associates who fail to

follow the Six Steps when detaining a suspected shoplifter is

based on the legitimate business reason of avoiding lawsuits by

persons improperly detained. Ms. Cinnante failed to present any

evidence that this reason is unworthy of belief or a pretext for

discrimination on the basis of gender.

49. For these reasons, Ms. Cinnante has failed to prove by

a preponderance of the evidence that Kmart committed an unlawful

employment practice prohibited by Section 760.10, Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

from an Unlawful Employment Practice filed by Linda M. Cinnante

on February 7, 2008.

DONE AND ENTERED this 31st day of July, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 2008.

ENDNOTES

1 / All citations to the Florida Statutes herein are to the 2006

edition unless otherwise indicated.

2 / A "bad stop" in the context of this Recommended Order is the

common term used by Kmart employees to describe the improper

detention of a suspected shoplifter.

3 / Kmart also refers to its Loss Prevention Managers as Loss

Prevention Coaches.

4 / The format of the following quotation has been changed

somewhat to accommodate the format of this text.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

G. Ware Cornell, Jr., Esquire

Cornell & Associates, P.A.

1792 Bell Tower Lane, Suite 210

Weston, Florida 33326

David M. DeMaio, Esquire

Ogletree, Deakins, Nash, Smoak &

Stewart, P.C.

701 Brickell Avenue, Suite 2020

Miami, Florida 33131

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.