09-002849 Dorine Alexander vs. Walmart Stores East, L.P. Status: Closed Recommended Order on Tuesday, April 6, 2010.

Summary: Petitioner failed to demonstrate that her failure to achieve promotion or her dismissal from employment was due to her race or color.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORINE ALEXANDER, )

)

Petitioner, )

)

vs. ) Case No. 09-2849

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 11,

2010, in Ocala, Florida, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dorine Alexander, pro se

376 Marion Oaks Trail

Ocala, Florida 34473

For Respondent: Scott A. Forman, Esquire

Elaine W. Keyser, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent committed unlawful

employment practices contrary to Section 760.10, Florida

Statutes (2007), 1 by discriminating against Petitioner based on

her race or color in its failure to promote her or in its

decision to terminate her employment.

PRELIMINARY STATEMENT

On or about October 28, 2008, Petitioner Dorine Alexander

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

Relations ("FCHR") an Employment Complaint of Discrimination

(the "Complaint") against Respondent Wal-Mart Stores East, L.P.

("Walmart"). 2 Petitioner alleged as follows:

I believe I was subjected to different terms

and conditions, denied training, denied a

promotion, unfairly disciplined, and

terminated because of my race (black) and my

color (dark skinned). I began working with

Respondent on August 26, 2004. My last

position title was Customer Service

Supervisor. I along with a white supervisor

(Catherine Durham)[ 3 / ] was assigned to the

night shift. Catherine did not do any work

and I had to pull all of the cash drawers

and handle the accounting issues. I was

written up for being late, however,

Catherine was late everyday and she was not

disciplined. I was given a "D-day" while I

was out on approved sick leave.[ 4 / ] Each

time I applied for a manager's position I

was told my attendance was a problem,

although all of the write-ups were reversed.

I complained to the corporate office and I

only got a response after I missed out on

the quarterly training. In September 2007,

I was hospitalized and when I returned to

work I applied for a hardship loan and

Respondent denied my request. However,

Catherine applied for a hardship loan and

she received it. My responsibilities also

increased while I was on this shift. I was

responsible for cashiers, accounting, self

check out and stock.

On November 14, 2007 I was terminated,[ 5 / ]

falsely accused of theft and arrested. The

allegations were false. I and other

supervisors often shared pass codes with

each other and cashiers when we were short

staffed and extremely busy and nothing was

done about it. Catherine was also given

vital information about pass codes when

employees were under investigation. I never

received that information.

The FCHR investigated Petitioner's Complaint. FCHR

investigative specialist Pamela Dupree issued an investigative

memorandum on March 6, 2009. The memorandum recited

Petitioner's allegations regarding the differing conditions of

employment and discipline to which she was subjected between

August 26, 2004 and September 2007, but concluded as follows:

Complainant filed [her] charge of

discrimination with the FCHR on October 30,

2008. The allegations raised by Complainant

were not raised within 365 days of the

alleged harm and will not be addressed in

this report.

The quoted language from the memorandum references Section

760.11(1), Florida Statutes, which provides that any person

aggrieved by a violation of the Florida Civil Rights Act of

1992, as amended, "may file a complaint with the commission

within 365 days of the alleged violation. . . " This provision

operates as a statute of limitations that bars any claim for

damages pre-dating 365 days before the filing of the claim.

Greene v. Seminole Electric Cooperative, Inc. , 701 So. 2d 646,

648 (Fla. 5th DCA 1997). To extend the time for filing by

equitable tolling, Petitioner would have to establish one of the

factors listed in Section 95.051, Florida Statutes. Petitioner

has not alleged that any of these factors apply to her

situation.

The investigator determined that the only issue raised by

Petitioner that was not time-barred was the question of her

discharge from employment on November 13, 2007. In a letter

dated April 15, 2009, the FCHR issued its determination that

there was no reasonable cause to believe that an unlawful

employment practice occurred as to Wal-Mart's discharge of

Petitioner.

On May 20, 2009, Petitioner timely filed a Petition for

Relief with the FCHR. On May 22, 2009, the FCHR referred the

case to the Division of Administrative Hearings. The hearing

was initially scheduled to be held on August 26, 2009. The case

was continued twice and finally was held on January 11, 2010.

At the outset of the hearing, the undersigned affirmed that

his jurisdiction extends no farther than that of the FCHR, and

that the only issue for decision involved Petitioner's

discharge. The undersigned ruled that Petitioner could present

evidence regarding events that occurred prior to November 14,

2007, in order to establish a pattern of discrimination and

thereby supplement the contention that her ultimate dismissal

was due to discrimination.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Jacqueline Cruz, Joan Cameron, and

Lawford Cameron, her fellow employees at Wal-Mart. Petitioner

offered no exhibits. Wal-Mart presented the testimony of

Petitioner; asset protection coordinator Sandra Raines; market

asset protection manager Melanie Clemons; and market human

resource manager Mark Mathis. Wal-Mart's Exhibits 6, 7, 9, 10,

15 through 24, and 27 through 29 were admitted into evidence.

Petitioner testified in rebuttal, and Mr. Mathis testified in

surrebuttal.

The one-volume transcript was filed at the Division of

Administrative Hearings on January 28, 2010. At the hearing,

the parties stipulated to a 30-day period within which to file

proposed recommended orders. Walmart timely filed its Proposed

Recommended Order on February 25, 2010. Petitioner did not file

a proposed recommended order.

FINDINGS OF FACT

1. Wal-Mart is an employer as that term is defined in

Subsection 760.02(7), Florida Statutes.

2. Petitioner, an African-American female, was hired by

Wal-Mart on or about August 26, 2004. At the time of her

dismissal, she worked as a Customer Service Manager ("CSM") on

the overnight shift, from 10 p.m. to 7 a.m. As a CSM,

Petitioner performed various cashiering and supervisory duties

at the front end of the store. These duties included conducting

cash transactions and making refunds to customers.

3. Petitioner's employment with Wal-Mart was terminated on

November 13, 2007, for a category of offense styled "Gross

Misconduct--Integrity Issue" related to fraudulent returns. In

plain language, Petitioner was alleged to have stolen money from

Wal-Mart by issuing "refunds" to nonexistent customers and

pocketing the money from the cash register.

4. Wal-Mart has a "Coaching for Improvement" policy

setting forth guidelines for progressive discipline. See

endnote 4, supra , for a brief description of the disciplinary

progression. While the progressive discipline process is used

for minor and/or correctable infractions such as tardiness,

"gross misconduct" constitutes a ground for immediate

termination. The coaching policy explicitly sets forth "theft,"

"dishonesty," and "misappropriation of company assets" as

examples of gross misconduct.

5. Prior to her termination, Petitioner's most recent

three progressive "coachings" related to her habitual poor

attendance and punctuality. A verbal coaching for misconduct

related to attendance/punctuality was issued on January 5, 2007.

A written coaching for misconduct related to

attendance/punctuality was issued on February 23, 2007. A

"decision day" for misconduct related to attendance/punctuality

was issued on August 24, 2007, because Petitioner had

accumulated six unauthorized absences since the written coaching

in February. All of these coachings pre-dated Petitioner's

Complaint by more than 365 days.

6. Petitioner conceded that these coachings were unrelated

to the reasons for her dismissal from employment. Apart from

her unconvincing testimony about an allegedly malfunctioning

store time-clock, Petitioner essentially conceded that she had

persistent problems arriving on time for work. Petitioner also

conceded that, aside from hearsay and rumor on the floor of the

store, she had no personal knowledge of anyone else's coachings

and thus had no basis for comparing her disciplinary history to

that of any other Wal-Mart employee.

7. Wal-Mart's "Promotion & Demotion Criteria" expressly

provide that an employee is not eligible for a promotion to

management trainee if he or she has an active written coaching.

A written coaching is "active" for a period of one year after

its issuance, meaning that Petitioner would not have been

eligible for promotion to management trainee until February 24,

2008, had she not been discharged on November 13, 2007.

8. Wal-Mart's "Career Preference" system is a computer

program that allows employees to express their interest in

promotion to other positions. An employee may log onto the

Career Preference system and indicate her interest in a

particular job. If an employee has not indicated her interest,

she is not considered to have applied for the position and will

not be considered for that job opening.

9. A printout of Petitioner's Career Preference history

was entered into evidence. It indicates that she never applied

for a promotion to department manager.

10. On April 13, 2006, Petitioner attempted to indicate

her interest in the management trainee program. However, the

Career Preference system will allow only qualified employees to

indicate an "interest" and thereby be considered for a job;

less-than-qualified employees are shown to have an aspirational

"goal" of attaining the position. As of April 13, 2006,

Petitioner had at least one active written coaching in her

employment file, 6 had not completed the prerequisites for the

management trainee program, and was therefore ineligible for the

position. Thus, the Career Preference system did not list her

as having an "interest" in the management trainee position and

she was not considered for the job.

11. The evidence indicates that Petitioner was not

qualified or eligible for a promotion at any time during the

365-day period preceding the filing of her Complaint.

12. Wal-Mart's asset protection coordinators ("APCs") and

Market Asset Protection Managers ("MAPMs") work under an

entirely different chain of command than those employees

involved in store operations. APCs and MAPMs are not involved

in day-to-day decisions regarding employee discipline or

promotions.

13. Sandra Raines is the APC for Wal-Mart Store 5326,

where Petitioner worked. Her job is to supervise and

investigate integrity and facility safety issues, including

instances of suspected theft by Wal-Mart employees.

14. Ms. Raines reports directly to Melanie Clemons, the

MAPM for 12 stores in Market 481, including Store 5326.

Ms. Clemons supervises 12 APCs as to their asset protection

duties, which includes allegations of internal theft by Wal-Mart

employees.

15. As part of her job, Ms. Raines reviews a weekly refund

review report. This report provides information regarding

suspicious transactions, such as refunds in excess of $50 for

which the customer did not provide a receipt. The report

provides information necessary to trace the transaction: the

operator number of the cashier, the number of the register on

which the transaction occurred, and whether the transaction was

hand-keyed.

16. It is usual Wal-Mart refund practice to scan the

Universal Product Code ("UPC") bar code from the receipt into

the register. A "hand-keyed" transaction is one in which the

register operator manually overrides the register's protocol and

types the information into the register, rather than scanning in

the UPC bar code. Ms. Raines testified that, though there are

legitimate reasons for using this procedure, a hand-keyed

transaction is one of the "red flags" that cause her to look

more deeply into a transaction.

17. In the course of reviewing the November 3, 2007,

weekly refund review report, Ms. Raines noticed a sale of

$963.92 in merchandise at 3:47 a.m. on October 24, 2007,

conducted by Petitioner. She also noticed a refund of $212.92

related to that receipt at 3:29 a.m. on November 2, 2007. The

refund was hand-keyed. The large amount of the refund, the odd

hour at which it occurred, and the fact that it was hand-keyed,

combined to rouse Ms. Raines' curiosity.

18. Ms. Raines reviewed the electronic journal, a record

of every transaction that takes place in the store. She was

able to obtain the original receipt from the October 24, 2007

purchase and the receipt for the November 2, 2007 refund. The

refund receipt indicated that the returned item was a recliner

chair. Ms. Raines' suspicions became greater as she wondered

who would return a recliner at 3:29 a.m., then further

intensified when she noted the original receipt showed that no

recliner was purchased.

19. Ms. Raines' preliminary review of the refund report

and the receipts led her to believe that Catherine Durso, a

white female CSM working the overnight shift, conducted the

refund transaction. Ms. Durso's operator number was on the

refund receipt. Ms. Raines began reviewing store surveillance

footage to find visual evidence that Ms. Durso had committed a

fraudulent return.

20. Ms. Raines reviewed the video of the original

October 24, 2007, sale and saw no recliner. However, she did

observe Petitioner printing an additional copy of the sales

receipt approximately 11 minutes after the sale.

21. Ms. Raines next reviewed the video of the November 2,

2007 refund transaction. She saw no recliner chair 7 and no

customers present at the register at the time of the refund.

Instead, Ms. Raines saw Petitioner conducting the refund

transaction on Ms. Durso's register at 3:47 a.m. Ms. Durso was

not to be seen in the surveillance footage of this transaction.

22. Based on all the evidence before her, Ms. Raines

concluded that Petitioner hand-keyed a fraudulent cash refund

for $212.92, using the UPC code for a recliner chair and the

transaction number from the reprinted receipt she had kept from

the October 24, 2007 sale.

23. At this point, Petitioner had recorded a cash refund

of $212.92 but had not taken any money from the register.

Ms. Raines therefore continued to watch the video to "kind of

see what's going to happen next." At 6:03 a.m., Petitioner

recorded a "no sale" transaction on the same register she had

used for the refund. A "no sale" can only be performed by a CSM

or a member of management because it involves opening the

register drawer without actually recording a sale. A "no sale"

is typically used when the cashier needs to change out larger

bills for smaller ones. On this "no sale," Petitioner appeared

to be merely sorting money.

24. However, Petitioner recorded a second "no sale" three

minutes later, at 6:06 a.m. This time, Petitioner removed money

from the large-bill slot of the register and concealed the money

in a black jacket draped over her left arm.

25. Petitioner admitted removing the money from the

register and placing it under her jacket. She claimed that she

did so in order to safely move the money from the front of the

store to the accounting office in the back. This claim was not

credible.

26. Ms. Raines testified that there is never a situation

in which a CSM should hide money under a jacket. Wal-Mart

provides blue register bags for transporting money and requires

their use, for reasons of safety and employee integrity.

27. Based on her observation of the fraudulent return

transaction, and the removal and concealment of money from the

register drawer, Ms. Raines concluded that Petitioner was

stealing money from Wal-Mart.

28. Ms. Raines continued her investigation, and discovered

two additional fraudulent returns performed by Petitioner. Both

of these returns were hand-keyed, and both used the receipt from

the October 24, 2007 purchase. One refund transaction occurred

on October 24, 2007, the same date as the purchase. Petitioner

hand-keyed a refund for a recliner chair in the amount of

$212.92, the same amount as the November 2, 2007 refund. The

second refund occurred on October 26, 2007. Petitioner hand-

keyed a $249.09 fraudulent refund for a Barbie Jeep, a battery-

operated toy car large enough to hold two young children. No

Barbie Jeep was purchased on October 23, 2007.

29. For both of these refunds, Petitioner used the same

$963.92 receipt from October 24, 2007, that Ms. Raines observed

Petitioner reprinting 11 minutes after the actual purchase. Ms.

Raines viewed the store video to confirm that no customers were

present when these refunds were conducted. She also confirmed

that no recliner or Barbie Jeep entered the store on the dates

in question.

30. Finally, Ms. Raines observed that on October 13, 2007,

Petitioner's register was $300 short at the end of her shift.

The surveillance video for that date showed Petitioner

performing nine "no sale" transactions. Under the guise of

performing an audit of the cash register, Petitioner was

removing money from the drawer.

31. Ms. Raines notified her supervisor, Ms. Clemons, of

her observations and her conclusion that Petitioner conducted

several fraudulent refunds in order to steal money from Wal-

Mart.

32. Ms. Clemons reviewed the evidence gathered by

Ms. Raines. She reviewed the store videos to verify that

Petitioner conducted three fraudulent refund transactions. At

the conclusion of her independent review of the evidence,

Ms. Clemons was convinced that Petitioner had stolen money from

Wal-Mart.

33. Ms. Raines and Ms. Clemons scheduled an interview with

Petitioner on November 13, 2007. At this interview, Ms. Clemons

terminated Petitioner's employment with Wal-Mart because of

gross misconduct.

34. During the interview, Petitioner admitted that she

conducted fraudulent returns. She wrote out a statement in her

own words:

I had a couple of returns that were not

actually returns. They were used for

emergency personal purposes due to severe

hardship and past-due medical bills.

To my recollection, it has only started just

recently around October 2007 and only 3x's

that I remember.

I do apologize for the integrity issue and

am willing to pay back the 3 that I know and

remember.

I felt I was pushed over the edge by

personnel and corporate or none of this

would have happened. Everyone goes through

hardships and I guess it was just my turn

and that's how I chose to deal with [sic].

Again, I apologize and am willing to repay

Wal-Mart, given the opportunity.

35. At the hearing, Petitioner unconvincingly claimed that

she was "coerced" into writing the above statement by a promise

that Wal-Mart would not pursue criminal charges for the theft if

she made a written confession. She claimed that the statement

was not true, but was the result of putting herself "in a

theatrical acting mode," imagining what would make someone do

the things of which she stood accused. This testimony was not

credible.

36. Ms. Raines and Ms. Clemons credibly testified that

Petitioner was not coerced into admitting her guilt.

Ms. Clemons stated that she offered Petitioner the opportunity

to write a statement out of adherence to Wal-Mart procedures.

Ms. Clemons did not need the statement. She already had all the

evidence she needed and would have fired Petitioner whether or

not she wrote the statement.

37. Petitioner admitted that she was discharged solely as

a result of the investigation performed by Ms. Raines and

Ms. Clemons. Petitioner was criminally prosecuted for the

theft. She pled guilty and was convicted of grand theft, was

sentenced, and paid restitution to Wal-Mart.

38. Petitioner testified that she does not believe and

does not contend in this forum that either Ms. Raines or

Ms. Clemons discriminated against her because of her race or

color. She testified that the discrimination did not involve

Ms. Raines and Ms. Clemons: "I was fired by them, but the case

of discrimination goes way before that."

39. Even if the time-barred elements of the Complaints

were considered, Petitioner provided no evidence beyond her bare

assertions that she suffered from discrimination on account of

her race or color. She believed that Ms. Durso received favored

treatment, not because she was white and Petitioner was black,

but because Ms. Durso had relatives in management and friends in

the store. Also, Ms. Durso had computer skills that Petitioner

lacked, which at times enabled Ms. Durso to sit at a desk in the

back of the store while Petitioner did the heavy lifting in the

front. Given Petitioner's obvious lack of candor as to the

central issue of her termination, the undersigned is reluctant

to base tangential findings on Petitioner's word alone. Even if

Petitioner's testimony were credited as to the preferential

treatment accorded Ms. Durso, Petitioner alleged no motive

related to race or color in any of this treatment.

40. Petitioner offered no record evidence that she was

qualified for, applied for, and was denied a promotion. To the

contrary, the evidence showed that Petitioner kept herself

ineligible for promotion under Wal-Mart rules by having written

"coachings" on her record for persistent lateness and unapproved

absences from work.

41. Petitioner offered no evidence that a similarly

situated employee of another race or color committed a similar

theft and was not discharged from employment with Wal-Mart.

42. The greater weight of the evidence establishes that

Petitioner was terminated from her position with Wal-Mart due to

gross misconduct on the job in form of fraudulent refunds that

attempted to cover her theft of money from her employer.

43. The greater weight of the evidence establishes that

Wal-Mart has not discriminated against Petitioner based on her

race or color.

CONCLUSIONS OF LAW

44. 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).

45. The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. Subsection

760.11(1), Florida Statutes, provides that any person aggrieved

by a violation of the Act must file a complaint within 365 days

of the alleged violation. This is a statute of limitations, and

restricts Petitioner's Complaint to violations alleged to have

occurred 365 days or less prior to October 30, 2008. Greene v.

Seminole Electric Cooperative, Inc. , 701 So. 2d 646, 648 (Fla.

5th DCA 1997); St. Petersburg Motor Club v. Cook , 567 So. 2d 488

(Fla. 2d DCA 1990) (referencing the then-current 180-day

limitations period).

46. The evidence established that the only adverse

employment action suffered by Petitioner at the hands of Wal-

Mart between October 30, 2007, and October 30, 2008, was her

dismissal from employment on November 13, 2007. All of

Petitioner's other allegations are time-barred.

47. Subsection 760.10(1)(a), Florida Statutes, states the

following:

(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.

48. Wal-Mart 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.

49. 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).

50. 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 Wal-Mart, 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

Wal-Mart's offered 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).

51. 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) she was qualified to do the job; and (4) her

employer treated similarly-situated employees of other races or

colors more favorably. See , e.g. , 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).

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

unlawful employment discrimination.

53. Petitioner established that she is a member of a

protected group, in that she is an African-American female. She

is also dark-skinned. Petitioner was subject to an adverse

employment action insofar as she was terminated. Petitioner was

qualified to perform the job of customer service manager, the

job she held at the time of her dismissal.

54. Petitioner failed to demonstrate that she was

qualified for promotion to management trainee or department

manager, either during the 365-day period at issue in this case

or during the time-barred period of her employment.

55. Petitioner presented no evidence that her race or

color played any role in her termination or in her failure to

achieve promotion at Wal-Mart. She presented no evidence, aside

from her own less-than-reliable testimony, that any similarly

situated employee was treated any differently or better than was

Petitioner. Having failed to establish this element, Petitioner

has not established a prima facie case of employment

discrimination.

56. Even if Petitioner had met the burden, Wal-Mart

presented evidence of legitimate, non-discriminatory reasons for

terminating Petitioner, thereby rebutting any presumption of

racial or color discrimination. The evidence presented by Wal-

Mart established that Petitioner was terminated for gross

misconduct on the job, namely the calculated, brazen, and

repeated theft of money from her employer. The evidence

presented by Wal-Mart also established that Petitioner's failure

to advance in the company was entirely due to her own

unreliability.

57. Petitioner wholly failed to prove that Wal-Mart's

reasons 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 Wal-Mart Stores East, L.P. did

not commit any unlawful employment practices and dismissing the

Petition for Relief.

DONE AND ENTERED this 6th day of April, 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 6th day of April, 2010.

ENDNOTES

1 / Citations shall be to Florida Statutes (2007) unless

otherwise specified. Petitioner was discharged from her

position with Walmart on November 13, 2007. She filed her

Charge of Discrimination with the Florida Commission on Human

Relations on October 30, 2008, which could lead to the

conclusion that the 2008 edition of the Florida Statutes should

be employed in this case. In any event, Section 760.10, Florida

Statutes, has been unchanged since 1992, rendering the question

irrelevant.

2 / "Wal-Mart Stores East, L.P." is the legal name of the company,

but "Walmart" is the trademark of the company and is the

spelling most commonly used.

3 / The white supervisor's name was actually Catherine Durso.

4 / Wal-Mart employs a progressive discipline system. An

employee is first given verbal "coaching," then written

coaching, then is given a "decision day," or D-day. The D-day

is a paid day off from work in which the employee is to decide

whether she will make the requested improvement in her

performance or behavior. After a D-day, which can also entail a

demotion, termination is the only remaining level of discipline.

5 / The evidence established that Petitioner's actual termination

date was November 13, 2007.

6 / Petitioner was issued a "decision day" coaching for

accumulated unapproved absences on June 15, 2005.

7 / Ms. Raines also watched video of the store entrance to

confirm that no one brought a recliner into the store on the

morning of November 2, 2007.

COPIES FURNISHED :

Cornelius Boone, Esquire

Cornelius Boone, P.A.

Two South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

Cornelius D. Boone, Esquire

Littler Mendelson, P.C.

3344 Peachtree Road Northeast, Suite 1500

Atlanta, Georgia 30326

Scott A. Forman, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131

Elaine W. Keyser, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

Two South Biscayne Boulevard

Miami, Florida 33131

Dorine Alexander

376 Marion Oaks Trail

Ocala, Florida 34473

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.