09-000095 Rosemary Chavez vs. Lowe`s Status: Closed Recommended Order on Tuesday, August 31, 2010.

Summary: Petitioner's claims of harassment due to gender and national origin, and of retaliation, were without merit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSEMARY CHAVEZ, )

)

Petitioner, )

)

vs. ) Case Nos. 09-0095

) 09-5280

LOWE'S HOME CENTERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in these consolidated cases

on April 12, 2010, in Gainesville, Florida, before Lawrence P.

Stevenson, a duly-designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rosemary Chavez, pro se

1966 Southwest 69th Drive

Gainesville, Florida 32607

For Respondent: Thomas R. Brice, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent, Lowe's Home Centers, Inc.

(“Lowes”) 1 committed unlawful employment practices contrary to

Section 760.10, Florida Statutes (2008), 2 / by discriminating

against Petitioner based on her gender or national origin

(Hispanic) in its allowance of a hostile work environment, or by

discharging Petitioner from her employment in retaliation for

engaging in protected conduct.

PRELIMINARY STATEMENT

On or about June 5, 2008, Petitioner Rosemary Chavez

("Petitioner") filed with the Florida Commission on Human

Relations ("FCHR") an Employment Complaint of Discrimination

(the "First Complaint") against Lowes. Petitioner alleged that

she had been wrongfully subjected to discipline, continuing

harassment (including threats of physical violence), and an

involuntary transfer, and further stated as follows:

1) Lowe's #2365 Store Manager gave me a

Final Notice on 5/2/08 which was

premeditated because things were said that

were not true. I gave superior quality of

excellence and I have gained recognition in

Commercial Sales. I am knowledgeable and

graduated from Building Trades. It gives me

great pleasure to help people out. I know

projects, materials, multi-task, etc. I can

produce a long list. I handled $400,000

projects. I am a good person. I do not

swear or curse. I love my job and people.

2) I endured eight months of slurs based on

my gender and my national origin by co-

worker Mr. John Wayne Edwards. He

threatened me by telling me if I wasn’t a

woman, he’d beat me up in the parking lot.

Mr. Edwards said, “We need to build a fence

around the Mexican border” on three

occasions. The harassment was reported in

writing to several Managers but no

corrective action was taken. I did not even

get a response.

3) I was involuntarily transferred from

Commercial Sales as a result of the Final

Notice. At the time, I was handling a

$300,000 project which I feel I am owed the

commission.

The FCHR investigated Petitioner's Complaint. FCHR

Investigative Specialist Emily Davis issued an investigative

memorandum on November 5, 2008. The memorandum recited

Petitioner's allegations, detailed the findings of Ms. Davis’

investigation, and then concluded that there was not reasonable

cause to believe either that Lowes had subjected Petitioner to

unlawful discrimination based on her national origin or her sex,

or Lowes unlawfully subjected Petitioner to hostile working

environment harassment.

In a letter dated December 3, 2008, the FCHR issued its

determination that there was no reasonable cause to believe that

an unlawful employment practice occurred as alleged by the First

Complaint.

On January 5, 2009, Petitioner timely filed a Petition for

Relief with the FCHR. On January 8, 2009, the FCHR referred the

case to the Division of Administrative Hearings (“DOAH”). The

case was issued DOAH Case No. 09-0095 and was initially

scheduled to be held on April 6 and 7, 2009.

On March 30, 2009, Petitioner filed an Employment Charge of

alleged that she had been retaliated against because she filed a

formal complaint of discrimination against her employer.

Petitioner stated that Lowes was notified of her charge on

June 6, 2008, and terminated her employment on August 8, 2008,

after four years of employment.

On August 20, 2009, FCHR investigation specialist Pamella

Dupree issued an investigative memorandum finding there was no

reasonable cause to believe that Lowes unlawfully discriminated

against Petitioner in retaliation for her initial complaint. On

August 27, 2009, the FCHR issued its determination that there

was no reasonable cause to believe that an unlawful employment

practice occurred as alleged by the Second Complaint.

On or about September 23, 2009, Petitioner timely filed a

second Petition for Relief with the FCHR. On September 28,

2009, the FCHR referred the case to DOAH. The case was issued

DOAH Case No. 09-5280. By order dated October 6, 2009, DOAH

Case Nos. 09-0095 and 09-5280 were consolidated for hearing.

The consolidated cases were scheduled for hearing on April 12

through 14, 2010. The hearing was convened and completed on

April 12, 2010.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Lowes employees Cynthia Leland and

Albert Conerly. Petitioner offered no exhibits. Lowes

presented the testimony of Chris Bayne and Lowes employees John

Wayne Edwards, Charles Raulerson, Lynette White, and excerpts

from the deposition testimony of Karla Daubney. 3 / Lowes'

Exhibits 1 through 6, 9 through 13, 17 through 23, 26, 27, 40,

and 42 through 46 were admitted into evidence. Petitioner

testified in rebuttal.

The two-volume transcript was filed at the Division of

Administrative Hearings on May 5, 2010. On May 17, 2010, Lowes

filed a motion for extension of the time to file its proposed

recommended order, which was granted by order dated May 20,

2010. In accordance with the order granting extension, Lowes

filed its Proposed Recommended Order on June 14, 2010. Without

objection, Petitioner filed her Proposed Recommended Order on

June 18, 2010.

FINDINGS OF FACT

1. Lowes is an employer as that term is defined in

Subsection 760.02(7), Florida Statutes.

2. In November 2004, Petitioner, a Mexican-American

female, was hired by Lowes to work at store number 2365 in

Gainesville as a Commercial Sales Associate (“CSA”) in the

Commercial Sales department, which serves contractors and large

institutional customers. Petitioner’s primary duty was to

assist customers in the selection, demonstration and purchase of

products.

3. At the time she was hired, Petitioner received from

Lowes copies of the following documents: Lowes' Code of Ethics,

Lowes' Equal Employment Opportunity Policy, Lowes' No Harassment

Policy, and Lowes' Performance Management Policy 315 setting

forth the company’s standards of conduct and discipline. These

policies were in effect during the entirety of Petitioner’s

employment at Lowes.

4. Lowes' Code of Ethics specifically provides that

employees “must maintain the confidentiality of information

entrusted to them by Lowes or its suppliers or customers,”

unless such disclosure is authorized by the company’s lawyers or

is required by law. Lowes' Equal Employment Opportunity Policy

provides that all reports and investigations of harassment “will

be treated confidentially to the extent possible, and with the

utmost discretion.” Lowes' Performance Management Policy 315

provides that unauthorized disclosure of company information is

a “Class A violation,” which will normally subject an employee

to immediate termination on the first occurrence.

5. Petitioner’s allegations of harassment and hostile work

environment center on a single Lowes co-worker, John Wayne

Edwards. Mr. Edwards was another CSA in Commercial Sales. He

had no supervisory authority over Petitioner and exercised no

control over the terms and conditions of Petitioner’s

employment. Petitioner has not alleged that Mr. Edwards

subjected her to any unwanted sexual comments, sexual touching,

or sexual advances.

6. Petitioner’s factual allegations against Mr. Edwards

involve three incidents. The first incident, in September 2007,

was an argument between Petitioner and Mr. Edwards at work.

Petitioner accused Mr. Edwards of taking a customer file from

her. Mr. Edwards denied taking the file, pointing out to

Petitioner that he had no reason to take her file. If

Mr. Edwards wanted the information contained in Petitioner’s

customer file, he could simply take it from the Commercial Sales

department’s computer.

7. Petitioner called Mr. Edwards a liar. Mr. Edwards

Mr. Edwards asked Petitioner what she meant by that statement,

and Petitioner called him coward. Mr. Edwards then said to

Petitioner, “If you were a man, me and you’d go across the

street right now and settle this.”

8. Petitioner reported the incident to Lynette White, the

Human Relations (“HR”) manager for Lowes store number 2365,

alleging that Mr. Edwards had threatened to beat her up in the

parking lot. 4 / Ms. White investigated the matter, interviewing

Petitioner, Mr. Edwards and two or three other CSAs who

witnessed the incident. Ms. White concluded that Mr. Edwards

had not threatened any physical harm to Petitioner, but that

Mr. Edwards’ statement was nonetheless inappropriate. She

counseled Mr. Edwards to take care in his workplace

conversations so that no one could construe anything he said as

a threat, and to avoid contact with Petitioner whenever

possible.

9. The second of the three incidents occurred on or about

October 2, 2007. According to Petitioner, she was standing near

a filing cabinet in Commercial Sales. Mr. Edwards was “talking

Petitioner told Mr. Edwards not to talk to her, but he continued

in a very loud voice. Then, when he was finished bragging and

talking, Mr. Edwards rushed toward the filing cabinet “like a

football player” and hit the cabinet hard. Petitioner testified

that Mr. Edwards hurt himself and ran and told management.

Store managers came running to make sure that Petitioner was not

hurt in the incident.

10. Mr. Edwards had no recollection of such an incident.

He stated that there are three CSAs and an assistant in an area

that is 12 feet long and 42 inches wide, with a filing cabinet

that is in use directly behind the computer work stations. It

is unavoidable that people moving through such a space will

touch or bump one another. Mr. Edwards was positive he would

have excused himself if he inadvertently bumped Petitioner, and

denied ever doing anything that could be construed as “charging”

at the filing cabinet with the intention of hurting or

frightening Petitioner.

11. Ms. White investigated this incident, interviewing

Petitioner, Mr. Edwards, and other persons who were in the area

when the incident allegedly occurred. During her interview with

Ms. White, Petitioner conceded that neither Mr. Edwards nor the

file cabinet touched her. Ms. White asked Petitioner to show

her how the incident occurred, using a file cabinet in

Ms. White’s office. Petitioner was unable to show a scenario

that, in Ms. White's words, “added up to someone coming towards

you to attack you.” The two other employees who had been in the

area saw nothing to indicate that Mr. Edwards made contact with

or sought to harm Petitioner. Ms. White concluded that, at

most, Mr. Edwards accidentally bumped the file cabinet while

Petitioner was nearby.

12. As to the third incident, Petitioner alleged that on

three or four occasions in early 2008, Mr. Edwards approached

her and, apropos of nothing, announced, “We need to build a

fence around the Mexican border.” Petitioner testified that

these bigoted comments were clearly intended to intimidate her

and cast aspersions on her heritage. Petitioner took this

complaint to Karla Daubney, then Lowes' HR district manager.

Ms. Daubney investigated Petitioner’s complaint by interviewing

Petitioner, Mr. Edwards, and other employees in Commercial

Sales.

13. Mr. Edwards denied making a comment about “building a

fence around the Mexican border.” He testified that the only

possible source for Petitioner’s allegation (aside from sheer

invention) was a conversation he had with a male co-worker about

the Iraq War. Mr. Edwards had stated his opinion that the

United States would be better off bringing its soldiers home

from Iraq and using the savings to shore up our borders with

Mexico and Canada. 5 / He had no idea whether Petitioner was

within earshot during this conversation, and denied ever making

anti-Mexican comments, whether or not they were aimed at

Petitioner.

14. Mr. Edwards testified that this allegation was

particularly hurtful because he is the adoptive father of two

Mexican children, a brother and sister. At the time Mr. Edwards

adopted them, the girl was three years old and the boy was nine

months old. The children are now adults. Mr. Edwards’ daughter

is a surgeon, and his son is in the air-conditioning business.

15. After her investigation, Ms. Daubney concluded that

Petitioner’s allegations were unsupported by the evidence.

Mr. Edwards was not disciplined for this incident.

16. At the final hearing in this matter, Petitioner and

Mr. Edwards testified about all three incidents. Petitioner

produced two witnesses, neither of whom witnessed any of these

events first-hand or had any clear recollection of the incidents

as related by Petitioner. No witness other than Petitioner

characterized Mr. Edwards as anything other than a good Lowes

employee and a solid citizen. Far from allowing a hostile work

environment, Lowes diligently investigated every accusation made

by Petitioner. Mr. Edwards was by far the more credible

witness, and was genuinely puzzled as to why Petitioner had

selected him as the continuing focus of her ire.

17. The evidence indicated that Petitioner had job

performance issues that predated her odd vendetta against

Mr. Edwards. She received an “Initial Notice” on November 6,

2006, for failure to follow up on various customer orders.

18. On May 2, 2008, Petitioner received a “Final Notice,”

the last step in Lowes' progressive discipline system prior to

termination. Petitioner had used Lowes' confidential customer

contact information to telephone a regular commercial customer,

Justice Steele, at his home. Shortly after this conversation,

Mr. Steele telephoned Charles Raulerson, the manager of store

number 2365, to complain about Petitioner’s unprofessional

conduct. Mr. Steele followed up the phone call with a letter,

dated April 25, 2008, which stated as follows, verbatim:

The evening of April 23, at approximately

6:30 P.M., I received a call from Rosie

[Chavez] in Commercial Sales when I answered

she proceeded to tell me that, she had heard

John and I talking earlier. So I asked her

what the problem was? At this point she

started to tell me I had no right to

critique her work, I tried to explain to her

that I was quite unhappy that she had lost

one order of mine and had mixed up another

one in the same week. And had I known she

was there I would have spoken to her face to

face, at this point she became very

argumentative and started telling me how she

was the only person who did her job in

commercial sales. And her co-workers where

[sic] lazy and stupid that they should not

even be there, personally I thought this was

very very unprofessional on her part. Not

to mention calling me at home considering I

am in the store almost daily placing orders,

getting estimates, etc. In the years I have

been doing business with your company I

always found the staff to be quite

knowledgeable an courtesy I’m surprised that

you would allow an employee to act in this

manner. I’m aware you do your best to

screen employees but if this issue is not

addressed I will not continue doing any

further business with your company. Thank

you for your attention to this matter.

19. In her meeting with Mr. Raulerson about Mr. Steele’s

complaint, Petitioner asserted that her boss could not tell her

what to do on her own time, and that Mr. Steele was lying about

her phone conversation with him. 6 / Mr. Raulerson attempted to

explain that Petitioner was conducting Lowes business when she

called Mr. Steele, and she was therefore a representative of

Lowes whether or not the call was placed from the store.

Petitioner continued to assert that she could do anything she

wanted if she was not physically at the store.

20. Mr. Raulerson issued the Final Notice and transferred

Petitioner to the position of cashier in response to

Mr. Steele’s complaint. 7 / The transfer was a lateral move,

involving no change in Petitioner’s employee status or pay.

During the meeting at which the Final Notice was issued,

Mr. Raulerson reminded Petitioner of Lowes' confidentiality

policies and provided her with another copy of Performance

Management Policy 315.

21. The referenced Performance Management Policy would

have allowed Mr. Raulerson to terminate Petitioner’s employment

for her unauthorized use of confidential customer information.

However, Mr. Raulerson decided to give Petitioner another chance

to salvage her job, away from the Commercial Sales department. 8 /

22. On July 25, 2008, Mr. Raulerson received another

complaint about Petitioner from Lowes customer Chris Bayne.

Mr. Bayne was a registered nurse working in the emergency room

at North Florida Regional Medical Center in Gainesville. On

July 24, 2008, Petitioner phoned Mr. Bayne at his private cell

phone number, which he had given to Lowes two years previously

when buying lumber. Mr. Bayne was without knowledge of

Petitioner’s grievances against Mr. Edwards, Mr. Raulerson

and/or Lowes.

23. Nonetheless, Petitioner caused Mr. Bayne to leave the

emergency room in the middle of a procedure to take her phone

call. Petitioner solicited Mr. Bayne to write a letter of

character reference for her, to be used in a discrimination

lawsuit against Lowes. Mr. Bayne had no idea what Petitioner

was talking about. In an effort to get her off the phone and

get back to his job, Mr. Bayne gave Petitioner his email address

and told her to send any information via that route.

24. After work, with more time to think about the call,

Mr. Bayne became increasingly disturbed. He wondered how

Petitioner had obtained his private phone number and began to

worry about identity theft. The next morning, he telephoned

Lowes and complained to Mr. Raulerson. Mr. Bayne later sent

Mr. Raulerson a copy of the letter that Petitioner had emailed

to Mr. Bayne. The letter read as follows:

Hi. As many of you already know, I have

been demoted to cashier. Mr. Justice Steele

wrote a letter to Lowe's. According to

Mr. Charlie Raulerson, store manager and

Mr. Tom Bragdon, operation manager,

Mr. Steele claimed that I called him on his

personal time and that I argued with him.

I always follow up on my orders. I

overheard Mr. Steele tell someone that I

lost his order. So I called him up to find

out what happened and what is going on. I

had informed Mr. Steele that I will be

placing a copy of his estimate in front of

his file folder because he had not paid for

it yet. The copy was still there in front

of his file folder. There was no argument.

There were a couple of other things that

were mentioned in which not a single word

was brought up. I asked Charlie Raulerson

the store manager for a copy of the letter

and he refused to show me the letter because

it was Lowe's property.

I am defending myself. There is more than

what you know is going on. I have been

discriminated based on my national origin

and my gender now for over eight months at

Lowe's #2365 in Gainesville Florida on 13 th

Street. You are my fifth proof. I am

knowledgeable about construction. I

graduated from Building Trades. I loved my

job and I loved the people. Please submit a

character reference to Emily Davis, EEOC

Investigator (Equal Employment Opportunity

Commission) at

[e-mail] . For those

who do not have e-mail, please mail

reference to 2009 Apalachee Parkway, Suite

200, Tallahassee, FL 32301-4857. Tell her

everything you know. Do not fear anything.

The reference letter is not going to Lowe's.

It is going to Emily Davis only. Everything

is strictly confidential. Ms. Davis is

currently investigating my case

#15D200800721.

Please keep me in your prayers. In

addition, please give a copy of this letter

to the prayer group at your church and ask

them to pray for me.

Please pass the word around because I did

not get everyone’s phone number since I was

immediately demoted to cashier on May 2,

2008, on a Final Notice. Please ask

everyone to e-mail Emily Davis or write to

her.

Please help me and thank you for your help.

Rosie

25. At the hearing, Petitioner testified that she sent

this letter to hundreds of people. As the text indicates, most

of the recipients were current or former Lowes employees, but

many were customers such as Mr. Bayne. None of the recipients

had any personal knowledge of Petitioner’s allegations.

Petitioner appeared to have no understanding that her actions

were in clear violation of Lowes' confidentiality policies, not

to mention common sense.

26. Mr. Raulerson asked Ms. Daubney to investigate

Mr. Bayne’s complaint. Ms. Daubney interviewed Petitioner in an

attempt to understand why she called Mr. Bayne. Petitioner

refused to answer Ms. Daubney’s questions. She insisted that

her conversation with Mr. Bayne was none of Lowes' business.

27. Mr. Raulerson testified that Mr. Bayne’s complaint

provided more than adequate grounds for terminating Petitioner’s

employment, but that he decided to give Petitioner yet another

chance to turn her situation around and become a productive

employee.

28. Shortly after investigating Mr. Bayne’s complaint and

learning that Petitioner had used Lowes' confidential business

records to circulate her own complaint to hundreds of people,

Ms. Daubney received a copy of a memorandum written by Linda

Brown, Records Bureau Chief of the Alachua County Sheriff’s

Office. Ms. Brown was the supervisor of Nanci Middleton, the

wife of Larry Middleton, one of Petitioner’s co-workers at

Lowes. Ms. Brown’s memo stated that she had received a

telephone call from Petitioner seeking to discuss “an EEOC issue

of discrimination” involving Mr. Middleton, and asking to speak

with Ms. Middleton. Ms. Brown told Petitioner that it was

inappropriate to contact Ms. Middleton at work about an issue

unrelated to the Alachua County Sheriff’s Office.

29. Petitioner testified as to her purpose in phoning

Ms. Brown. Petitioner sought permission to eavesdrop on a

proposed conversation between the Middletons, during which

Mr. Middleton would somehow be urged by his wife to “tell the

statements. Petitioner wanted Ms. Brown to join her in

eavesdropping on this conversation in order to serve as

Petitioner’s witness in her discrimination case. Not

surprisingly, Ms. Brown declined Petitioner’s proposition.

30. Ms. Daubney concluded that Petitioner’s telephone call

to Ms. Brown violated Lowes' confidentiality policies. In

consultation with Ms. Raulerson, Ms. Daubney decided to

terminate Petitioner’s employment with Lowes, effective

August 8, 2008. The grounds for Petitioner’s termination were

repeated customer complaints about Petitioner’s job performance

and intrusions into customers’ privacy, and her repeated

violations of Lowes' confidentiality policies despite numerous

warnings.

31. Petitioner’s position, repeated in her testimony at

the hearing, was that Chapter 760, Florida Statutes, gave her

the right to “defend” herself in any way she deemed appropriate,

and to contact anyone who might help her, regardless of whether

they had any knowledge of or connection to her disputes with

Lowes. Petitioner refused to acknowledge that any of her

actions had been inappropriate.

32. Petitioner offered no evidence to establish that her

employment was terminated because of her gender or national

origin. Petitioner testified that her firing was unrelated to

her national origin or her gender.

33. Petitioner offered no credible evidence that Lowes

discriminated against her because of her national origin or her

gender, subjected her to harassment because of her national

origin or gender, or retaliated against her in violation of

Chapter 760, Florida Statutes.

34. Petitioner offered no credible evidence to support her

factual allegations against Mr. Edwards. The evidence did not

establish that Mr. Edwards threatened physical harm to

Petitioner or made derogatory remarks to Petitioner regarding

her national origin.

35. Petitioner offered no credible evidence disputing the

legitimate, non-discriminatory reasons given by Lowes for

terminating Petitioner’s employment.

36. The evidence established that Petitioner’s First and

Second Complaints were devoid of merit. The evidence

established that Lowes showed great forbearance in not firing

Petitioner well before August 8, 2008.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

38. The Florida Civil Rights Act of 1992 (the “Florida

prohibits discrimination in the workplace, and prohibits

retaliation against an employee for engaging in protected

activity such as filing a charge of discrimination with the

FCHR.

39. Subsection 760.10, Florida Statutes, states the

following, in relevant 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 of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) 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.

40. Lowes is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

41. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

42. Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to Lowes, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non-discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Lowes' proffered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

43. In order to prove a prima facie case of unlawful

employment discrimination under Chapter 760, Florida Statutes,

Petitioner must establish that: (1) she is a member of the

protected group; (2) she was subject to adverse employment

action; (3) Lowes treated similarly situated employees outside

of her protected classifications more favorably; and

(4) Petitioner was qualified to do the job and/or was performing

her job at a level that met Lowes’ legitimate expectations.

See , e.g. , Jiles v. United Parcel Service, Inc. , 360 Fed. Appx.

61, 64 (11th Cir. 2010); Knight v. Baptist Hospital of Miami,

Inc. , 330 F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro

Services Corporation , 144 F.3d 1438, 1441 (11th Cir. 1998);

McKenzie v. EAP Management Corp. , 40 F. Supp. 2d 1369, 1374-75

(S.D. Fla. 1999).

44. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

45. Petitioner established that she is a member of a

protected group, in that she is a Mexican-American (Hispanic)

female. Petitioner was subject to an adverse employment action

insofar as she was terminated. Petitioner was qualified to

perform the job of cashier, the job she held at the time of her

dismissal, though her actual job performance was less than

adequate.

46. Petitioner presented no evidence that her race,

nationality or gender played any role in her termination or in

her failure to achieve promotion at Lowes. She presented no

evidence, aside from her own less-than-reliable testimony, that

any similarly situated employee was treated any better than was

Petitioner. The evidence indicated that at least one similarly

situated white male employee was fired immediately for a single

violation of the same confidentiality policies for which

Petitioner received repeated warnings prior to her dismissal.

Having failed to establish this element, Petitioner has not

established a prima facie case of employment discrimination.

47. Even if Petitioner had met the burden, Lowes presented

evidence of legitimate, non-discriminatory reasons for

disciplining and terminating Petitioner, thereby rebutting any

presumption of racial or color discrimination. The evidence

presented by Lowes established that Petitioner was given a Final

Notice and transferred to a cashier’s position after the company

investigated the incident involving Mr. Steele. Petitioner

disputed the facts surrounding the incident, but did not dispute

that this was Lowes' reason for disciplining her. There was no

showing that Lowes' reasons for the Final Notice and transfer of

Petitioner were pretextual.

48. The evidence presented by Lowes established that

Petitioner’s employment with Lowes was terminated in the

immediate aftermath of Petitioner’s entirely improper

eavesdropping request to the supervisor of the wife of

Petitioner’s co-worker. Ms. Daubney and Mr. Raulerson were also

cognizant of the repeated customer complaints against Petitioner

and Petitioner’s repeated violations of Lowes' confidentiality

policies despite repeated warnings and specific instruction to

the contrary. Petitioner admitted that she repeatedly violated

Lowes' confidentiality policies by discussing details of on-

going investigations with other employees, customers, and

persons entirely outside the orbit of Lowes, such as Ms. Brown.

Petitioner admitted to sending correspondence relating to her

complaints against Lowes to hundreds of persons, none of whom

had any personal knowledge of her claims.

49. Lowes' reasons for disciplining Petitioner and

ultimately terminating her employment were legitimate and non-

discriminatory. Petitioner presented no evidence that her

firing was in retaliation for her filing a complaint with the

FCHR. Petitioner was fortunate not to have been fired before

August 8, 2008, for reasons unrelated to her national origin or

gender. Petitioner wholly failed to prove that the reasons

given by Lowes for firing her are pre-textual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Lowe's Home Centers, Inc., did

not commit any unlawful employment practices and dismissing the

Petitions for Relief filed in these consolidated cases.

DONE AND ENTERED this 31st day of August, 2010, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 August, 2010.

ENDNOTES

1/ For reading clarity, "Lowe's" has been shortened to "Lowes" in

the text of this Recommended Order, except when used in direct

quotations.

2 / Citations shall be to Florida Statutes (2008), unless

otherwise specified. Petitioner was given a “Final Notice”

(Lowes’ last step in progressive discipline before termination)

on May 5, 2008, then was discharged from her position with Lowes

on August 8, 2008. Section 760.10, Florida Statutes, has been

unchanged since 1992.

3 / Ms. Daubney’s entire deposition was admitted as Lowes’

Exhibit 46, with the understanding that Lowes would file the

deposition transcript at DOAH prior to the submission of

proposed recommended orders. However, the deposition was never

filed. Therefore, the only portions of Ms. Daubney’s testimony

that have formed the basis for findings of fact are excerpts

read into the record at the final hearing.

4 / As these cases have progressed, Petitioner’s description of

this incident has intensified to an allegation that Mr. Edwards

threatened her life.

5 / Mr. Edwards stated that at the time of this conversation,

there had been talk in the news about “suitcase nukes” being

smuggled into the United States through Canada.

6 / A theme of the hearing was Petitioner’s persistent denial of

the consistent observations by co-workers and Lowes customers

that she is inordinately argumentative. Petitioner’s behavior

throughout the hearing confirmed the accuracy of those

observations.

7 / As noted in the Preliminary Statement, supra , this Final

Notice was the precipitating event to Petitioner’s filing of the

First Complaint.

8 / During roughly the same time period, Mr. Raulerson terminated

the employment of a white male CSA for using confidential

customer contact information to telephone a customer and ask her

out on a date.

COPIES FURNISHED :

Thomas R. Brice, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

Rosemary Chavez

1966 Southwest 69th Drive

Gainesville, Florida 32607

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

Derick Daniel, Executive Director

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.