10-010316 Sandra M. Minnie vs. Wal-Mart Stores, Inc. Status: Closed Recommended Order on Friday, October 5, 2012.

Summary: Petitioner did not establish she was the victim of age discrimination, or that she was constructively discharged because of her age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA M. MINNIE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10316

)

WAL - MART STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, a formal hearing was held in this case

by video teleconference o n July 11 , 201 2 , and by teleconference

on August 23, 2012, in Tampa and Tallahassee, Florida, before

W. David Watkins, the duly - designated Administrative Law Judge

of the Division of Admi nistrative Hearings.

APPEARANCES

For Petitioner: Sandra M. Minnie , pro se

309 West Fairground Street

Marion, Ohio 43302

For Respondent: Amy R. Harrison Turci , Esquire

Ford and Ha rrison , LLP

225 Water Street , Suite 710

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

em ployment practice pursuant to c hapter 760, Florida Statutes,

against Petitioner due to her age .

PRELIMINARY STATEMENT

Petitioner filed a C omplaint of Discrimination with the

Florida Commission on Human Relations (Commission) on

June 4 , 20 10 . The Commission entered a Notice of

Determinati on: No Cause on or about Oc tober 25 , 20 10 .

Petitioner then filed a Petition for Relief . The Petition was

forwarded to the Division of Administrative Hearings on

November 22 , 20 10 , for assignment of an Administrative Law Judge

to conduct a formal hearing. A Notice of Hearing was i ssued on

December 3, 2010, originally scheduling the final hearing for

December 30, 2010 . After being continued several times at the

request of the parties, the final hearing was ultimately held in

two parts, on July 11, 2012, and August 23, 2012.

At the final hearing, Petitioner testified on her own

behalf. Petitioner's Exhibits 1 and 2 were received into

evidence. Respondent presented the testimony of Sherri Maness,

co - manager of Wal - Mart Store No. 5300 ( Store 5300 ) and Vicki

Tillman, former store man ager of the same Wal - Mart .

Respondent's Exhibits 1 through 9 were received into evidence.

The two - volume transcri pt of the final hearing was filed with

the Division on September 7, 2012 .

At the conclusion of the hearing, the parties agreed to

file propo sed recommended orders within 1 0 days of the

transcript filing . Both parties timely filed P roposed

Recommended Orders which have been considered in preparation of

this Recommended Order.

All citations are to Florida Statutes (20 12 ) unless

otherwise indic ated.

FINDINGS OF FACT

1 . Petitioner, Sandra Minnie , is a 62 - year - old female .

2 . Ms. Minnie ha d been working as an assistant m an ager at

a Wal - Mart s tore in Marion, Ohio, but in late 2008, applied for

a transfer to Store 5300 in Gibsonton , Florida .

3 . Store m anager Vicki Tillman interviewed Ms. Minnie and

in November 2008, hired her as an a ssistant m anager at Store

5300 . Ms. Tillman is currently 61 years old.

4 . While in Ohio, Ms. Minnie had worked as the f ront - end

a ssistant m anager 1 / for Wal - Mart, and accordingly, was hired to

work in the same capacity at Store 5300.

5 . Wal - Mart ass istant m anagers are routinely scheduled to

work between 52 and 56 hours per week. Ms. Minnie's scheduling

would have been dictated by the position that she held, to w it,

f ront - e nd m anager.

6 . Ms. Minnie received a copy of , and was familiar with ,

Wal - Mart's Discrimination and Harassment Prevention Policy. The

Discrimination and Harassment Prevention Policy instructs

employees who experience harassment or discriminati on to report

the violation to a salaried member of management, or to call the

Wal - Mart Ethics Hotli ne.

7 . Ms. Minnie was also familiar with Wal - Mart's Open Door

Policy, which allows a ssociates to report any concerns they have

up the chain of command, all the way to the CEO.

8 . Despite being aware of both of these p olicies,

Ms. Minnie never utilized either p olicy, and never reported that

she believed that Vicki Tillman, or anyone else with Wal - Mart,

was discriminating again st her or harassing her because of her

age. Although Ms. Minnie made several handwritten notes of

occasions on which she felt her superiors had mistreated her,

she never approached a member of Wal - Mart management to discuss

her complaints.

9 . Soon after Ms. Minnie began as an a ssista nt m anager at

Store 5300, it became apparent that she did not perform many of

her job responsibilities properly, and that there were many

assistant m anager duties that she did not know how to perform,

and often performed incorrectly.

10 . After several i nformal conversations between

Ms. Minnie and both Co - Manager Maness and Store Manager Tillman

regarding Ms. Minnie's performance deficiencies, and after

seeing no improvement, Ms. Minnie was given a verbal Ð coaching Ñ 2 /

on January 8, 2009 , for failure to ad equately perform her duties

as an assistant m anager . Several of the issues covered during

this verbal coaching had been informally discuss ed with

Ms. Minnie on prior occasions . Ms. Minnie did not challenge

this coaching.

11 . On the same day as her c oac hing, Ms. Minnie's ni ece

was caught shoplifting at Store 5300 . While Ms. Minnie was not

held responsible for the actions of her niece, she felt that

management "seemed to distrust [her] integrity after that

point."

12 . Despite continued informal conver sations and

counseling by members of management , Ms. Minnie's performan ce

did not improve. Furthermore, Store Manager Tillman began to

receive complaints from other a ssistant m anagers about having to

take on too many of Ms. Minnie's responsibilities becau se she

was not pulling her own weight.

13 . O n April 9, 2009, Ms. Minnie received a written

coaching for giving manager's keys to an hourly a ssocia te, and

for failing to accurately verify a cash deposit before approving

it , result ing in the bank deposit being $1,000.00 short. Again,

Ms. Minnie did not challenge this coaching.

14 . On another occasion , Ms. Minnie violated Wal - Mart

policy by cashing her own check personally in the cash office

instead of having the next level of management abov e her cash

i t. Ms. Tillman instructed Co - Manager Maness to have a

conversation with Ms. Minnie about the correct procedure for

check cashing, and instructed Ms. Maness not to formally coach

Ms. Minnie at that time.

15 . In the weeks prior to Father's Day, all manag ers

received an e - mail notifying them that a specific model of

television was due into the stores, in limited quantities, for

the Father's Day sale. The e - mail specifically stated that

there would be a Ð sale - block Ñ placed on the television, and that

the t elevisions could not be sold prior to the sales event. As

the a ssistant m anager in charge of the f ront e nd and b ack r oom,

Ms. Minnie wo uld have received this e - mail.

16 . On the evening of June 9, 2009, prior to the Father's

Day sale, Ms. Minnie took one of the Father's Day sale

t elevisions from the back stockroom (which had never been on the

sales floor) and brought it to the electronics department cash

register to purchase. When the television was r u ng up, the cash

register prompted : "sale no t allowed. " Despite this clear

instruction, Ms. Minnie permitted the cashier to call over

another assistant manager (Terry) , who overrode the sale block

and allowed the sale to be completed .

17 . Associates are not permitted to bring merchandise that

has never bee n on the sales floor directly from the back room to

a cash register for purchase. Moreover , a ssociates are not

permitted to override "sale not allowed" register prompts.

18 . When Co - Manager Maness arrived at work on June 10,

2009, she was informed by th e electronics department manager

that a sale block override had been performed on a television

that was being held for the Father's Day sale.

19 . Ms. Maness investigated the sale and discovered that

Ms. Minnie had violated Wal - Mart policy by removing the

television, which was being held for a future sales event, from

the back room, and purchasing it, despite the register

prompt, "sale not allowed." Ms. Man ess further concluded that

the a ssistant m anager who had overridden the sale block had also

violated Wal - Mart policy.

20 . Even though overriding a sale block was potentially a

terminable offense, Ms. Maness consulted with Store Manager

Tillman, who instructed Ms. Maness to just coach both Ms. Mi nnie

and the assistant manager to the next level. Because Ms. Minnie

had already received a verbal and a written coaching, M s. Maness

drafted a Decision - Day Coaching for Ms. Minnie. 3 /

21 . Ms. Minnie never returned to work at Store 5300 after

purchasing the television on June 9, 2009. Although Ms. Minnie

was s cheduled to work on June 12, 2009, she called in sick. She

then took her previously scheduled vacation from June 13 - 19,

2009.

22 . At the end of her vacation, instead of returning to

work, Ms. Minnie submitted leave of absence paperwork indicating

that s he needed to be out until October 23, 2009. Ms. Minnie's

leave of absence paperwork was approved by Store M anager

Tillman.

23 . Under Wal - Mart's leave of absence policy, Ms. Minnie

technically remained an active employee of Wal - Mart until

June 6, 2012. As such, she could have returned to Store 5300 at

any time prior to that date as an assistant manager.

24 . Ms. Minnie felt that Ms. Tillman was a very demanding

store manager . T his opinion was shared by other a ssistant

m anagers at S tore 5300. A t least three other assistant m anagers

(all of whom were significantly younger than Ms. Minnie)

confided in Ms. Minnie that they believed that Ms. Tillman was a

difficult s tore m anager to work with. 4 /

25 . Although it is undisputed that Ms. Tillman was a

demandin g and difficult store manager to work for, the evidence

of record does not support the conclusion that Ms. Minnie was

treated differently than other employees because of her age .

N or does the evidence establish that the series of "coachings"

leading up to Ms. Minnie's departure from Wal - Mart ha d anything

to do with her age.

26 . Ms. Minnie testified that she felt "disrespected" by

Ms. Tillman, and had been referred to by her as a "wet rag mop , "

while younger assistants were referred to as "perky new broo ms . "

Petitioner also alleged that Ms. Tillman made disparaging

remarks about her hairstyle and dress. The result of this

mental harassment, according to Petitioner, was that Petitioner

suffered a severe mental breakdown that made it impossible for

her to return to work. However, n o corroborating witnesses

provided any evidence that Ms. Tillman, who is less than a year

younger than Ms. Minnie, made any disparaging comments about

Ms. Minnie's age , and Ms. Tillman vehemently denied making such

remarks.

CONC LUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 760.11, Fl a . Stat .

(201 2 ).

28 . According to Ms. Minnie's Petition for Relief and the

testimony given at final hearing , Ms. Minnie contend s that she

has been discriminated against by Store Manager Tillman because

of her age.

29 . Pursuant to s ection 760.10:

(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,

n ational origin, age, handi cap, or marital

status.

30 . Florida courts interpret c hapter 760, Florida

Statutes, in accordance with federal anti - discrimination laws,

codified under Title VII of the Civil Rights Act of 1964 (Civil

Rights Act), as amended in 42 U.S.C. s ection 2000e, et seq .

31 . When a Petitioner alleges disparate treatment under

chapter 760, or the Civil Rights Act , the Petitioner must prove

that her age "actually motivated the employer's decision. That

is, the P laintiff 's age must have actually played a role [in t he

employer's decision making] process and had a determinative

influence on the outcome." Reev es v. Sanderson Plumbing Prods.,

Inc. , 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d

105 (2000) (quotation marks omitted) (alteration in original).

"A plaintiff may establish a claim of illegal age discrimination

through either direct or circumstantial evidence." Van Voorhis

v. Hillsborough Cnty . B d. o f Cnty . Comm'rs , 512 F.3d 1296, 1300

(11th Cir. 2008).

32 . Petitioner has the ultimate burden to pro ve

discrimination by direct or indirect evidence. Texas Dep Ó t

of Cmty . Affairs v. Burdine , 450 U.S. 248, 253 (1981).

Direct evidence is admissible evidence, which if believed, would

prove the existence of discrimination without any need for

inference or presumption. Petitioner offered no such evidence.

33 . Absent direct evidence of discrimination, Petitioner

must prove discrimination by indirect or circumstantial

evidence. To prove discrimination by indirect or circumstantial

evidence, Petitioner mus t first establish a prima facie case of

the following elements: (a) she is a member of a protected

group; (b) she is qualified to do her job; (c) she was subjected

to an adverse employment action; and (d) similarly - situated

employees, who are not members o f a protected group, were

treated more favorably than Petitioner. See McDonnell Douglas

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

34 . If Petitioner proves her prima facie case, the

employer then must articulate a legitimate, non - discriminatory

reason for the challenged employment decision. Burdine , 450

U.S. at 254. The employer is required only to "produce

admissible evidence, which would allow the trier of fact

rationally to conclude that the employment decision had not been

motivated by discriminatory ani mus." Burdine , 450 U.S. at 257.

35 . If the employer produces evidence of a

nondiscriminatory reason for the adverse action, the burden

shifts back to Petitioner to prove that the employer's reason

was a pretext for discrimination. St. Mary's Honor Cent er v.

Hicks , 509 U.S. 502, 503 (1993).

36 . In the instant case, it appears that P etitioner is

alleging that the "adverse employment action" she suffered was

constructive discharge, precipitated by repeated discipline

( coaching ) and critical and disparagi ng comments . In order for

a petitioner to demonstrate that she was constructively

discharged because of her age, she must show that "the work

environment and conditions of employment were so unbearable that

a reasonable person in that person's position wo uld be compelled

to resign." Johnson v. Woodruff , 28 F. Supp. 2d 1248, 1250

(M.D. Fla. 1998) (citing Virgo v. Riviera Beach Assocs., Ltd. ,

30 F.3d 1350, 1363 (11th Cir. 1 994)) ; s ee Bryant v. Jones , 575

F.3d 1281, 1298 (11th Cir. 2009) ("Constructive disc harge occurs

when an employer deliberately makes an employee's working

conditions intolerable and thereby forces him to quit his job.")

(citations omitted).

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

discrimination. The greater weight of t he evidence does not

establish that Ms. Minnie's working conditions were so

unbearable that a reasonable person in her circumstances would

have been compelled to resign. Ms. Minnie was given numerous

opportunities to improve her performance, and was furth er

counseled informally about ways in which to improve her

performance so that she did not receive another coaching.

38 . Moreover , there is no evidence that Ms. Minnie was

treated less favorably than other a ssistant managers because of

her age . As detai led above, several other a ssistant m anagers

viewed Store Manager Tillman as a difficult manager to work

with. As such, Ms. Tillman's high expectations were universal,

and were not directed solely at Ms. Minnie.

39 . Even assuming, arguendo , that Petition er established a

prima facie case of discrimination, Respondent presented

persuasive documentary and testimonial evidence that

Ms. Minnie's coachings were relate d solely to her failures as an

a ssistant m anager, and were not related to her age. As such,

Wa l - Mart has met its burden to establish legitimate, non -

discriminatory business reasons for the coachings.

40. Petitioner did not present any credible evidence that

Respondent's reason for the adverse employment action was a

pretext for discrimination.

4 1 . "The ultimate burden of persuading the trier of fact

that the [employer] intentionally discriminated against the

[employee] remains at all times with the [employee]." Texas

Dept. of Cmty . Affairs v. Burdine , 450 U.S. at 253.

In this case, Petitioner failed to meet her burden.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 5 th day of October , 201 2 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

( 850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of October , 201 2 .

ENDNOTES

1 / Front - e nd a ssistant m anager s are responsi ble for the

operation of the registers, customer service areas in the front

of the store, and the accounting office.

2 / WalmartÓs ÐCoaching for ImprovementÑ program establishes a

progressive system of discipline and instruction intended to

improve the pe rformance of its employees. Repeated written

ÐcoachingsÑ without performance improvement may ultimately

result in termination.

3 / Under Wal - Mart's Coaching for Improvement program, the next

level of action following a "decision day" coaching is

terminat ion.

4 / Ms. Minnie testified that 17 assistant managers had left

Store 5300 (either by virtue of resignation or transfer) during

Ms. Tillman's tenure as store manager.

COPIES FURNISHED :

Amy Reisinger Harrison Turci, Esquire

Ford and Harrison LLP

Su ite 710

225 Water Street

Jacksonville, Florida 32202

[e-mail]

Sandra M. Minnie

309 West Fairground Street

Marion, Ohio 43302

Betty Joseph, Esquire

Ford & Harrison LLP

300 South Orange Avenue , Suite 1300

Orlando, Florida 32801

[e-mail]

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Lawrence F. Kranert, Jr., Ge n eral Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Michelle Wilson, Executive Director

Florida Com mission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any except ions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.