08-001755 Jonnetta Benedict vs. Wal-Mart Stores East Status: Closed Recommended Order on Wednesday, November 19, 2008.

Summary: Petitioner did not prove a prima facie case. Respondent`s actions were based on a legitimate, non-discriminatory reason.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONNETTA BENEDICT, )

)

Petitioner, )

)

vs. ) Case No. 08-1755

)

WAL-MART STORES EAST, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was conducted pursuant to notice on September 18,

2008, via video teleconferencing with sites in Jacksonville and

Tallahassee, Florida, before the Division of Administrative

Hearings by its duly-designated Administrative Law Judge, Barbara

J. Staros.

APPEARANCES

For Petitioner: Jonnetta Benedict, pro se

5534 Casavedra Court

Jacksonville, Florida 32244

For Respondent: Jonathan A. Beckerman, Esquire

Scott Forman, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in

Petitioner’s Public Accommodations Complaint of Discrimination

filed by Petitioner on September 6, 2007, and if so, what relief

should be provided.

PRELIMINARY STATEMENT

On September 6, 2007, Petitioner filed with the Florida

Commission on Human Relations (FCHR), a Public Accommodations

Complaint of Discrimination, alleging that she had been

discriminated against pursuant to Chapter 760, Florida Statutes,

in that she was denied service because of her race.

The allegations were investigated and on February 29, 2008,

FCHR issued its Determination: No Cause and a Notice of

Determination: No Cause. A Petition for Relief was filed by

Petitioner on March 27, 2008.

On April 10, 2008, FCHR transmitted the matter to the

Division of Administrative Hearings for the assignment of an

administrative law judge.

A Notice of Hearing was entered on April 24, 2008,

scheduling the case for formal hearing on June 10 and 11, 2008.

Respondent filed an unopposed Motion for Continuance, which was

granted. The case was re-scheduled for final hearing on

September 18, 2008, and proceeded as scheduled.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Brian Benedict, Wayne Benedict, and

Adarious Pickens. Petitioner did not offer any exhibits into

evidence. Respondent presented the testimony of Jonnetta

Benedict and Jeannie Jo Thornton. Respondent offered one exhibit

which was admitted into evidence. 1/

A one-volume transcript was filed on October 3, 2008. The

parties were given until November 3, 2008, to file proposed

recommended orders. Respondent filed a Proposed Recommended

Order which has been carefully considered in the preparation of

this Recommended Order. No post-hearing submission was received

from Petitioner.

FINDINGS OF FACT

1. Petitioner is an African-American woman living in the

Jacksonville area. She is married to Wayne Benedict and is the

mother of Bryan Benedict.

2. On July 23, 2007, Petitioner went to Wal-Mart to do the

family’s grocery shopping. Her son, Bryan, and his friend,

Adarious Pickens, also African-American, were with her.

3. When she arrived at Wal-Mart, she proceeded to the deli

counter, where she usually begins her shopping trip.

4. On the day in question, the numbering system in the deli

was broken. When operating, the numbering system dispenses

tickets with numbers on them which determine which customers

arrived first and who receives service first.

5. At the time Petitioner approached the deli counter,

three Caucasian customers were present and waiting for service.

After the three Caucasian customers were served, another

Caucasian customer approached the deli counter and was waited

upon. Because Petitioner believed that the last Caucasian

customer had been served out of turn, Petitioner left the deli

area to find a manager. After learning that the manager had gone

for the day, she was directed to a person who was “team lead.”

She complained to the team lead who apologized to Petitioner.

6. After speaking to the team lead, Petitioner then

returned to the deli department and asked one of the deli

associates, Jeanne Thornton, to identify the other deli

associate. Ms. Thornton identified the other associate as

“Trish.” Petitioner again left the deli area.

7. At the time of this incident, Ms. Thornton and Trish

were the only two Wal-Mart associates were working at the deli

counter. Petitioner acknowledges that the deli appeared to be

short-staffed, as she typically sees three or four associates

working behind the deli counter.

8. Several minutes later, Petitioner returned to the deli

counter and requested service. Prior to this time, Petitioner

waited for service, which was not forthcoming, but did not

verbally request service. Ms. Thornton then waited on

Petitioner, who left the deli area after she was given the food

items she requested. Ms. Thornton noticed that Petitioner was

angry and upset.

9. The deli counter in question is at least 30 feet long.

The deli contains both a cold food section and a hot food

section. In addition, there is a lower shelf where items are for

sale, which do not require the assistance of deli associates.

10. On any given day, associates are assigned to work in

either the hot or cold food sections. At the time Petitioner

approached the deli counter, Trish was assigned to the deli’s hot

food section, and Ms. Thornton was in the midst of filling a

large cold food order.

11. When a deli associate is assigned to cook food in the

deli department’s hot food section, it is that person’s

responsibility to perform duties related to the hot food.

According to Ms. Thornton, “when the food comes up, it has to be

temped, logged, and put in the hot bar.” These duties of an

associate assigned to the hot food section of the deli take

priority over helping customers. If the hot food is not properly

temped, logged, and put in the hot bar, the hot food must be

thrown away.

12. On those occasions when the numbering system is not

working, the deli associates rely on customers to tell them who

should be waited on next. This is, in part, because the

associates often turn their backs to the customers at the deli

counter while they are cutting meat, etc.

13. Food items sold from the deli counter are not intended

for on-site consumption. Petitioner did not intend to consume

the items purchased from the deli on the premises of Wal-Mart.

14. No employee of Respondent made any racially derogatory

or racially related comments to Petitioner.

15. Other than Petitioner’s firm belief that she was

overlooked in favor of Caucasian customers, no evidence was

presented that the actions of Respondent’s associates were

racially motivated.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569, 120.57(1), and

760.11, Florida Statutes (2007).

17. Petitioner's complaint is based on a perceived

violation of Section 760.08, Florida Statutes (2007), which

requires all persons to be entitled to the full and equal

enjoyment of goods, services, facilities, privileges, advantages,

and accommodations of any place of public accommodation, as

defined in Chapter 760, Florida Statutes (2007), without

discrimination or segregation on the ground of race, color,

national origin, sex, handicap, familial status or religion.

18. Pursuant to Section 760.02(11), Florida Statutes

(2007), "public accommodations" is defined as follows:

(11) "Public accommodations" means places of

public accommodation, lodgings, facilities

principally engaged in selling food for

consumption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning of this section:

(a) Any inn, hotel, motel, or other

establishment which provides lodging to

transient guests, other than an establishment

located within a building which contains not

more than four rooms for rent or hire and

which is actually occupied by the proprietor

of such establishment as his or her

residence.

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling food

for consumption on the premises , including,

but not limited to, any such facility located

on the premises of any retail establishment,

or any gasoline station.

(c) Any motion picture theater, theater,

concert hall, sports arena, stadium, or other

place of exhibition or entertainment.

(d) Any establishment which is physically

located within the premises of any

establishment otherwise covered by this

subsection, or within the premises of which

is physically located any such covered

establishment, and which holds itself out as

serving patrons of such covered

establishment. (emphasis supplied)

19. The threshold question is whether Respondent is a place

of public accommodation as defined by Section 760.02(11), Florida

Statutes.

20. Because the food at Respondent’s deli is not consumed

on the premises, Respondent does not fit within the definition of

public accommodation as defined by Section 760.02(11), Florida

Statutes.

21. However, because the case was fully tried on the

merits, it is appropriate to examine the ultimate question of

discrimination. See Green v. School Board of Hillsborough

County , 25 F.3d 974, 978 (11th Cir. 1994); see also USPS Board of

Governors v. Aikens , 460 U.S. 711 at 715 (1983).

22. Complainants may establish a prima facie case of public

accommodation discrimination by proving: 1) that she is a member

of a protected class; 2) that she attempted to contract for

services and to afford herself the full benefits and enjoyment of

a public accommodation; 3) that she was denied the right to

contract for those services and thus denied the benefits and

enjoyments of same; and 4) that similarly situated persons who

were not members of the protected class received full benefits or

enjoyment, or were treated better. Foster v. Howard University

Hospital , No. 06-244, 2006 U.S. Dist. LEXIS 74512 (D.C. 2006);

Afkhami v. Carnival Corp. , 305 F. Supp. 2d 1308, 1322 (S.D. Fla.

2004); Laroche v. Denny's, Inc. , 62 F. Supp. 2d 1375, 1382 (S.D.

1999).

23. The Florida Civil Rights Act (FCRA) is patterned after

Title VII, and federal case law dealing with Title VII is

applicable to cases arising under the Florida Act. Florida State

University v. Sondel , 685 So. 2d 923, 925n.1 (Fla. 1st DCA 1996);

Velez v. Levy World Limited Partnership , 182 Fed. Appx. 929, 932

(11th Cir. 2006).

24. In order to prove discrimination violative of Section

760.08, Florida Statutes, Petitioner may demonstrate her case

through direct evidence of discrimination; pattern and practice

of discrimination; or circumstantial evidence of discrimination.

Afkhami , supra at 320. Direct evidence of discrimination, which

is "composed of only the most blatant remarks, where intent could

be nothing other than to discriminate," Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11th Cir. 1999), is not at issue in this

case. Likewise, Petitioner has not submitted evidence of a

pattern and practice of discrimination. Akfhami , 305 F. Supp. 2d

at 1321 (plaintiff must present evidence of a pattern and

practice of differential treatment affecting other members of his

or her class that is systematic as opposed to isolated, sporadic

incidents).

25. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, “the Supreme

Court’s shifting-burden analysis adopted in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (citation omitted) (1973). . . is

applicable.” Laroche v. Denny’s Inc. , 62 F. Supp. 2d 1375, 1382

(S.D. Fla. 1999). Under this well-established model of proof,

the complainant bears the initial burden of establishing a prima

facie case of discrimination. The burden then shifts to the

respondent to articulate a legitimate, non-discriminatory reason

for its action. If the respondent successfully articulates such

a reason, than the burden shifts back to the complainant to show

that the reasons given by the respondent are a pretext for

discrimination. Feacher v. Intercontinental Hotels Group , 563 F.

Supp. 2d 389 (N.D.N.Y. June 3, 2008). The ultimate burden of

persuading the trier of fact that unlawful discrimination

occurred remains with the complainant. EEOC v. Joe’s Stone

Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002); and see Brand

v. Florida Power Corp. , 633 So. 2d 504, 507 (Fla. 1st DCA 1994).

26. Petitioner meets the first element of a prima facie

case in that she is a member of a protected class, i.e., she is

African-American. As to the second element, she attempted to

contract for services and to afford herself the full benefits and

enjoyment of a public accommodation. That is, assuming for this

analysis that Respondent is a public accommodation, Petitioner

went to Respondent’s store to purchase deli items.

27. Petitioner did not, however, prove the third element.

While she did not receive service as promptly as she wished, she

was not denied service and ultimately purchased the food items

she desired from the deli. Once Petitioner verbally requested

service at the deli counter, she received it.

28. As to the fourth element, Petitioner presented evidence

that Caucasian customers at the deli counter received service

before she did. However, she did not establish that the deli

associates knew that she was waiting for assistance longer than

the Caucasian customers and then intentionally chose to assist

those customers before helping Petitioner.

29. Because Petitioner did not prove all of the required

elements, she did not establish a prima facie case. Even if she

had, however, Respondent presented a legitimate, non-

discriminatory reason for the delayed service to Petitioner.

That is, the numbering system was broken, the deli associates

were relying on their customers to voice who was in line next,

and the deli was short-staffed on the day in question. See

Department of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st

DCA 1991); Alexander v. Fulton County, Georgia , 207 F.3d 1303

(11th Cir. 2000).

30. Finally, Petitioner did not show that a discriminatory

reason more likely than not motivated the deli associates in

their actions or inactions that day. Accordingly, Petitioner did

not establish pretext.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered that dismisses Petitioner's

claim of public accommodation discrimination.

DONE AND ENTERED this 19th day of November, 2008, in

Tallahassee, Leon County, Florida.

Barbara J. Staros

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 19th day of November, 2008.

ENDNOTE

1/ Page 52 of Respondent's Exhibit 1 was admitted into evidence.

COPIES FURNISHED:

Jonnetta Benedict

5534 Casaverda Court

Jacksonville, Florida 32244

Johathan A. Beckerman, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

1 South Biscayne Boulevard

Miami, Florida 33131

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.