08-000683 Susan Byers vs. Family Dollar Services, Inc. Status: Closed Recommended Order on Thursday, July 24, 2008.

Summary: Petitioner failed to establish that she was terminated from employment and that there was a causal connection to a complaint she made.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN BYERS, )

)

Petitioner, )

)

vs. ) Case No. 08-0683

)

FAMILY DOLLAR SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on May 30, 2008, in Marianna, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Susan C. Byers, pro se

2204 Highway 73 South

Marianna, Florida 32448

For Respondent: Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has been the

subject of an unlawful employment practice as defined in

Chapter 760, Florida Statutes (2006). 1

PRELIMINARY STATEMENT

On January 8, 2008, the Florida Commission on Human

Relations (Commission) issued a Determination: Cause,

determining that there was reasonable cause to believe that

Respondent, Family Dollar Services, Inc. (Family Dollar

Services), had retaliated against Petitioner, Susan Byers, for

complaining to Family Dollar Services’ human resources office

about discrimination based on sex. On January 29, 2008,

Ms. Byers filed with the Commission a Petition for Relief for a

retaliatory discharge. The case was transmitted to the Division

of Administrative Hearings on February 8, 2008, for assignment

of an Administrative Law Judge.

The case was originally assigned to Administrative Law

Judge Diane Cleavinger, but was transferred to Administrative

Law Judge Susan B. Harrell to conduct the final hearing.

At the final hearing, Ms. Byers testified on her own

behalf. She did not submit any exhibits. Family Dollar

Services called the following witnesses: Angela Anderson Lance,

Christopher Thomas Miller, Craig Milburn Moore, and

William Jefferson Brewer. Respondent’s Exhibits 1 through 6, 9

through 16, 18, and 19 were admitted in evidence.

The Transcript was filed on June 25, 2008. On June 27,

2008, Family Dollar Services filed a Motion for Extension of

Time to File Post-Hearing Brief and requested the time for

filing be extended to July 21, 2008. Family Dollar Services

filed a post-hearing submittal on July 21, 2008. As of the date

of this Recommended Order, Ms. Byers had not filed a post-

hearing submittal.

FINDINGS OF FACT

1. Family Dollar Services operates distribution centers

for Family Dollar Stores, Inc., which is a large nationwide

chain of self-service stores selling basic, lower-priced goods

for family and home needs.

2. At all times relevant to this case, Ms. Byers was a

forklift area manager at Family Dollar Services’ distribution

center in Marianna, Florida. Ms. Byers’ supervisors were

Craig Moore, who was the operations manager, and Chris Miller,

who was the department manager.

3. On August 23, 2006, Ms. Byers met with Angel Anderson, 2

who was the human resources manager for Family Dollar Services,

to discuss an issue that involved Mr. Moore. Ms. Byers advised

Ms. Anderson that she felt that Mr. Moore was “talking down to

her,” but Ms. Byers was unable to give any specific instances in

which Mr. Moore had talked down to her. Ms. Anderson told

Ms. Byers that she could relay the information to Don Braun,

who, at the time, was regional vice president for Family Dollar

Services. Ms. Byers indicated that she did not want

Ms. Anderson to do anything then, but wanted to see if she could

handle it on her own. Ms. Byers did not mention that she felt

that she was being discriminated against because she was a

woman.

4. Ms. Byers claims that she spoke to Ms. Anderson about

Mr. Moore on three other occasions, but Ms. Anderson does not

recall those conversations. If Ms. Anderson had received a

complaint from Ms. Byers, alleging that she was being

discriminated against based on her sex, Ms. Anderson would have

taken a written statement from Ms. Byers and sent it to the

corporate office in North Carolina. An investigation would have

been initiated based on the complaint. No written statement was

taken from Ms. Byers, and no investigation was initiated.

Ms. Byers never complained to Ms. Anderson at any time that she

was being discriminated against based on her sex.

5. On August 28, 2006, Mr. Moore, Mr. Miller, and

Ms. Anderson met with Ms. Byers to discuss Ms. Byers’

interaction with some of her subordinate employees. Ms. Byers

had been observed taking breaks and eating lunch with the same

subordinate employees each day. During the meeting, Mr. Moore

and Mr. Miller advised Ms. Byers that it was not a good

management practice to take breaks and eat lunch with the same

subordinate employees each day because the practice could create

a perception of favoritism and advised Ms. Byers to refrain from

such practice.

6. At the end of the meeting on August 28, 2006,

Mr. Miller and Mr. Moore made it clear to Ms. Byers that the

matters discussed in the meeting were to be considered

confidential and were not to be discussed with other employees.

About an hour after the meeting, Mr. Miller overheard Ms. Byers

and another employee, Jackie Hodges, talking about the meeting.

Mr. Miller could not tell exactly what was being said. Later,

Ms. Hodges came to Mr. Miller’s office and indicated that

Ms. Byers was upset and distressed by the meeting. Mr. Miller

took Ms. Hodges’ comments to mean that Ms. Byers had told

Ms. Hodges about the meeting, despite Mr. Miller’s and

Mr. Moore’s admonitions to keep the meeting confidential.

7. Mr. Miller confronted Ms. Byers about her discussion

with Ms. Hodges. Ms. Byers denied telling Ms. Hodges about the

meeting and claimed that Ms. Hodges had merely seen that

Ms. Byers was upset by what had been said to her in the meeting.

8. Mr. Miller went to Ms. Anderson and Mr. Moore to

discuss Ms. Byers’ failure to abide by her supervisor’s

direction of confidentiality. Mr. Miller and Mr. Moore also

discussed the issue with Mr. Braun, and it was decided that

Ms. Byers should be issued an initial written counseling for her

failure to follow her supervisors’ direction. Mr. Miller

directed Ms. Anderson to draft the initial written counseling.

According to the Distribution Center Disciplinary Policy of

Family Dollar Services, an initial written counseling is the

lowest level of discipline that can be given to a Family Dollar

Services’ employee.

9. On August 29, 2006, Mr. Miller and Mr. Moore called

Ms. Byers to a meeting in Mr. Moore’s office to issue Ms. Byers

the initial written counseling. Ms. Byers came to the meeting

and became upset. She told them that it was unfair to give her

the initial written counseling and that she was quitting. She

accused Mr. Moore of hating her because she was a white woman

and left Mr. Moore’s office. On her way back to the warehouse

area where her workstation was located, Ms. Byers stopped at

Ms. Anderson’s office and told Ms. Anderson: “I quit, Angel.

They finally did this to me and I’ve had enough. I quit.”

10. Ms. Byers went to her workstation and gathered her

things. Mr. Miller followed her to her work area. Because

Ms. Byers was upset, Mr. Miller had a security officer escort

Ms. Byers from the facility.

11. Ms. Byers was not terminated from her employment.

Neither Mr. Miller nor Mr. Moore had the authority to terminate

Ms. Byers because she was a manager. Termination of managers

had to be authorized by corporate headquarters. No

authorization was sought from the corporate headquarters, and no

authorization was given by corporate headquarters to terminate

Ms. Byers.

12. Ms. Byers applied for and received unemployment

compensation benefits after she left the employment of Family

Dollar Services. She argues that her receipt of unemployment

benefits is evidence that she was terminated from her

employment. The evidence established that unemployment

compensation claims against Family Dollar Services were handled

for Family Dollar Services by a third party. Ms. Anderson

received notice from the third party contractor that Ms. Byers

had been awarded unemployment compensation benefits, and

Ms. Anderson instructed the contractor to appeal the decision on

the basis that Ms. Byers voluntarily left her employment, but

the contractor failed to do so.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

15. The anti-retaliatory provision of the Florida Civil

Rights Act, Subsection 760.10(7), Florida Statutes, provides:

It is an unlawful employment practice for an

employer, an employment agency, a joint

labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

16. The Florida Civil Rights Act is patterned after

federal Title VII, and Subsection 760.10(7), Florida Statutes,

is virtually identical to its federal counter part in Title VII.

See 42 U.S.C. § 2000e-3(a). Because the Florida Civil Rights

Act is patterned after Title VII, federal case law on Title VII

applies to Florida Civil Rights Act claims. Guess v. City of

Miramar , 889 So. 2d 840, 846 n.2 (Fla. 4th DCA 2004).

17. To establish a prima facie claim of retaliation under

Title VII, the employee must demonstrate that she engaged in a

statutorily protected activity, she suffered an adverse

employment action, and there is a casual relation between the

two events. Guess , 889 So. 2d at 846. In Rice-Lamar v. City of

Fort Lauderdale , 853 So. 2d 1125, 1132-1133 (Fla. 4th DCA 2003),

the court, citing Olmsted v. Taco Bell Corp. , 141 F.3d 1547,

1560 (llth Cir. 1988), stated:

[T]he casual link requirement under Title

VII must be construed broadly; “a plaintiff

merely has to prove that the protected

activity and the negative employment action

are not completely unrelated.” Once the

prima facie case is established, the

employer must proffer a legitimate, non-

retaliatory reason for the adverse

employment action. The plaintiff bears the

ultimate burden of proving by a

preponderance of the evidence that the

reason provided by the employer is a pretext

for prohibited, retaliatory conduct.

18. Ms. Byers has failed to establish a prima facie case

of retaliation. She made a complaint to Ms. Anderson that

Mr. Moore “talked down to her.” Ms. Byers did not make a

complaint that Mr. Moore discriminated against her because she

is a woman. Ms. Byers asked Ms. Anderson to keep her complaint

confidential and told Ms. Anderson that she would try to work it

out herself. There was no evidence presented that either

Mr. Moore or Mr. Miller had been made aware that Ms. Byers had

made a complaint to Ms. Anderson. Ms. Byers voluntarily quit

her employment when she learned that she was going to be issued

an initial written counseling for failing to adhere to her

supervisors’ direction that she keep a meeting with them

confidential. Ms. Byers was not terminated from her employment

by either Mr. Moore or Mr. Miller. Ms. Byers failed to

establish a causal connection between her making a complaint to

Ms. Anderson and her subsequent unemployment. Additionally,

Ms. Byers neither alleged in her Petition for Relief nor

established at hearing that the initial written counseling

stemmed from her complaint to Ms. Anderson.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entering dismissing

Susan Byers’ Petition for Relief.

DONE AND ENTERED this 24th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 24th day of July, 2008.

ENDNOTES

1/ Unless otherwise stated, all references to the Florida

Statutes are to the 2006 codification.

2/ Angel Anderson’s name has since changed to Angel Anderson

Lance. Since her name appears as “Anderson” throughout the

exhibits admitted in evidence, she will be referred to as

Ms. Anderson.

COPIES FURNISHED :

Elizabeth Reveley, Esquire

Family Dollar Services, Inc.

Post Office Box 1017

Charlotte, North Carolina 28201

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Susan C. Byers

2204 Highway 73 South

Marianna, Florida 32448

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

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.